جستجوی مقالات مرتبط با کلیدواژه « ijtihad » در نشریات گروه « فقه و حقوق »

In the Islamic legal system "sharia" as the main source of constitutional law goes beyond the written document and gives content to the norms of the constitution. The idea of ​​an Islamic constitution is neither a mere adherence to the principles of the constitution nor a formalist adherence to its writings, but in fact the same adherence to the spirit of the constitution. In addition, "Ijtihad" and “Maslahah” as two dynamic elements of sharia to deduce sharia rules; Built to suit the needs of each era. In this regard, the study of the nature of the Sharia, which can prevail and influence the principles and concepts of the Constitution as a superior spirit and unwritten norm, compared to the written text of the Constitution; It is essential. The present study examines the position of Sharia in the Islamic legal order as a Hypertext value that has subjugated the identity and foundation of a nation, and also by emphasizing the dynamic elements of the Sharia and their impact on the vitality of this superior norm, tries to clarify the relationship between sharia and the unwritten constitution.

Valid custom approved by the Shari'ah is one of the evidences and tools for deducing Islamic rulings. In some cases, it is the most important and sometimes the only document for responding to the daily needs of society in the field of ijtihad (jurisprudential reasoning). The Shari'ah has approved the custom of custom in non-worship matters. Since rational presumptions do not need to be authorized by the Shari'ah, their rationality suffices for their authenticity. This is because the audience of religious rulings are the common people, and the religious orders have been established for them to live better lives. Entrusting the diagnosis of issues to specialized customs is effective in many cases and leads to uniformity in the construction of logic. The custom in question is a precise and tolerant custom that is carefully adapted and recognized. In this case, there is no prohibition in the Shari'ah. It cannot be said that a custom with this characteristic, which is a product of rational nature and as a general theorem of proof, is a proof in the time of the presence of the Infallibles (peace be upon them) and not a proof in the age of absence. On this basis, custom is one of the evidences and tools that can be used to deduce Islamic rulings.

The derivation of a jurisprudential ruling in a certain path and mechanism sometimes faces challenges that the mujtahid must find a solution to get out of it and complete the issuance of the ruling. One of these challenges is the conflict between a narrative reason and a rational reason, the mechanism of reaching its conclusion is the problem of this research, and since it does not have a rich background, it is also an indicator of the novelty of this article compared to similar works. This research in the interdisciplinary geography of jurisprudence and principles, and in a descriptive, analytical way, the process of how to overcome the challenge of the conflict between narrative reason and rational reason has been the focus of its main question. The findings of this research show that in the conflict between narrative and rational reason, if the narrative reason is valid, in the assumption of conflict with unnecessary rational reason, the narrative reason takes precedence, and if the rational reason is one of necessity and certainties, then the rational reason takes precedence over the narrative. The Usulists of Ahl al-Sunnah have a consensus that in the conflict between qiyas and single news, if it is not possible to combine them, the reason of suspicion is preferable; But they differ on which one of these two is preferable; But from the Shiite point of view, due to the inauthenticity of "Qiyas", such a conflict does not arise.

According to the famous (in the meaning of prevailing) view of jurists, ‘Ijtihad’ is a prerequisite for making judicial decisions. Some others permit the adjudication by non-Mujtahid judges. Although both sides of arguments are based on reasoning with references to the Qur'an and the Sunnah, there is an objection to the way of reasoning of both sides, since they have been made in the absence of the analysis of practical process of adjudication and in the ignorance of the element of ‘codified law’. The establishment of the regime of Islamic Republic of Iran and legislative process based on Sharia standards indicates a transformation in the subject of adjudication, requiring reconsideration and reexamination of Ijtihad requirement in the light of such a transformation. The current article reviews the common jurisprudential arguments on Ijtihad requirement for adjudication and analyses its process and stages. Then, with an emphasis on the extent of the influence that religious rulings have on law and human measures, with taking into account the nature of Ijtihad and comparing it with the nature of dispute resolution, accompanied by the consideration of certain requirements of judicial system, such as the uniformity of judicial practices, it will ultimately reinforces the perspective that is in favor of non-necessity of Ijtihad in making judicial decisions.

In Islamic jurisprudence, there is a very important issue under the title of Islamic government, which is the distinguishing feature of the rules of Islamic law compared to other religions. In fact, in the teachings and opinions of Islamic jurists, the concept of political power has been recognized through the recognition of Islamic government. In the meantime, Shia jurists refrained from dealing with the issue of political power as one of the basic and main issues of Shia jurisprudence due to the specific socio-political conditions from the time of the beginning of Islam until the establishment of the first Shia governments. But after the formation of Shiite governments, the issue of political power became one of the most important issues in the field of political jurisprudence. The purpose of the current research, which was collected with descriptive-analytical method and library tools, is to analyze and evaluate the concept of political power in the thought of Shiite jurists. In the end, in light of the evolution of Shia thoughts, it is witnessed that in Shia political jurisprudence, given the openness of ijtihad from its outset to the present time, there have always been new mechanisms for ruling in the society, so that after the Infallible (pbuh), depending on historical conditions, other jurists and Islamic scholars have proposed various theories about political power.

Imami jurists believe that the opening of ijtihad has various effects, one of which is the employment of many people in the field of ijtihad and ifta. Sometimes people who claim to be in the field of ijtihad and ifta may not actually have enough knowledge in this regard, and the fatwa issued by them will cause harm to individuals. It seems that one of the tools by which it is possible to control the above-mentioned possible matter is to install a "mufti guarantee" which itself has countless confirmations in the four sources and due to the distribution of resources scattered in the votes and The views of some jurists have been pointed out, albeit in a small way. Most of the executive mechanism of the mufti's guarantee has been taken.which itself has countless confirmations in the four sources and due to the distribution of resources scattered in the votes and The views of some jurists have been pointed out, albeit in a small way. Most of the executive mechanism of the mufti's guarantee has been taken.

Allameh Feyz Kashani "Mercy be upon him" is a comprehensive scientist in rational and movable sciences, and this has led to different views towards him. His intellectual and argumentative method, as well as his jurisprudential method, which is sometimes close to the method of the fundamentalists, refrained from calling him a akhbari, and in terms of defending his scientific position, considered him among the fundamentalist scholars. He criticizes the principles of jurisprudence and those who believe in it and considers these principles to be taken from theopponents' books. Fayz has tended to the Akhbari school and has gone from learning and compiling the principles of jurisprudence to severe criticism and opposition to the fundamentalists. This scientist, who in his early youth was an expert in the field of the principles of jurisprudence and wrote the book "Critique of the principles of jurisprudence" in this regard, with the passage of time and the influence of his professor Seyyed Majid Bahrani, and then, Molla Mohammad Amin Astarabadi, in later works He has tended to the Akhbari school, but has always observed moderation and in the jurisprudential method is subject to the exact and valuable school of the late Muqaddas Ardabili. Explain his thought through his language and in the mirror of his works.

The argument based on the prohibition of ijtihād against naṣṣ emphasizes the existence of a prior, explicit, certain, definite, conclusive and meaning independent from the reader and interpreter. What is presented in the form of this proposition relies on the interpretive approach of the subject-interpreter. This article research, which was conducted with a descriptive-analytical approach and reliance library sources, shows that such an attitude does not include all interpretive approaches and cannot be cited as a principle-interpretive rule, because apart from the different impressions of the concept of naṣṣ, the way to call a referent (miṣdāq) in terms of proof is also a point of disagreement. Similarly, a distinction should be made between ijtihād against the appearance and ijtihād against the spirit and the intension of the text. The uṣūlī principle, “every ruling is based on a reason on which it was devised” limits the application of the prohibition of ijtihād against naṣṣ; e.g., not cutting off a thief’s hand in a year of famine and delaying the implementation of legal punishment of theft in other cases.

Judging is a subject that received special attention from the perspective of society and scholars of jurisprudence and law. Therefore, in the governance structure, it is deemed as one of the fundamental axes of justice administration. Therefore, the judge is assumed to be the center of justice. In all legal systems, judging, the judge and the judiciary have a special place, but the one who upholds these axes, mete out justice and execute the law is the judge and the justice is dispensed by prudent and fair judges. Hence, the analysis of justice and judge knowledge, one of the primary goals of this research, is of particular importance at the present time. This paper attempts to explore judge knowledge because knowledge is the prelude to the proper administration of justice. The results of this research suggest that judging is a serious matter, and that among the qualities and traits of a judge, the factors of his knowledge and ijtihad are of paramount importance. Now the question raised is that, “Should the judge be a scholar?” “Should the judge's knowledge be limited to ijtihad?” It seems that if ijtihad is seen as essential for a judge, then how will the urgent demand for a judge and the absence of a mujtahid in the current judicial system be solved? And what are the characteristic traits of a mujtahid judge? In light of the questions raised, the present research, which was conducted using document analysis and library study, in form of a jurisprudential and legal review of the knowledge and ijtihad of the judges, sets out to answer the said questions.

As a pioneer of the Salafi school, al-Albani's views deserve attention in various areas of the methodology of Salafi thought. al-Albani's aggressive and anti-Shia fatwas are perceptible in many of his jurisprudence books. Such fatwas arise from his view towards the sources of inference; however, the scope of the authority of sources from aL-Albani's point of view is not fairly clear due to the lack of an extensive and coherent research in this regard. al-Albani has a specific approach in using the four sources of inference i.e. Book, Sunna, consensus and intellect for his own jurisprudential ijtihad. The present paper has been written with the aim of identifying the extent of the authority of those sources from the view point of Nasir al-Din al-Albani. This research, using a descriptive-analytical method, shows that al-Albani considers Quran and Sunna to be of equal ranks in the process of ijtihad and believes in no priority in using these two sources and does not accept a preference between verses and hadiths. In addition, he believes that a hadith narrated by one person has authority with regard to precepts and beliefs. al-Albani defends hadith in a way that, in his opinion, hadith has authority even in case it contradicts Quran. Moreover, he weakens the category of hadiths according to which, all hadiths should be compared to Quran, since he considers their content to be against Quran. Intellect has no proper place in al-Albani’s system of jurisprudence and ijtihad and he generally advocates narration and is anti-intellectualist. In addition, al-Albani considers the consensus which is accepted among Usulis as controversial.

Tahari is a kind of ijtihad effort to repel doubts in a state of necessity by relying on evidence that can often be used in worship and sometimes in other matters. Tahari is related to other words such as ijtihad, tavakhi( seeking the best opinion), inspiration, supplication and examination of fact in object doubts. This method has been rejected by some due to its citation weakness and has been considered as conjecture not sufficing to prove the right, but it has often been accepted as a last resort and in case of necessity and based on the practical life of the Prophet, Imams,  prophet's companions and some other narrated and rational arguments.  The authority of "tahari" is limited to the one who does it and it is non-extensible to others, and it is not considered as a comprehensive religious reason, and depending on the subject, it includes specific taklifi rulings. The research method is descriptive-analytical and the result of the research is the acceptance of stimulus as a practical method in case of emergency and to avoid mistakes and only in some issues.

The temporal and spatial circumstances are causing many metamorphic changes in the world. The role of time and space in the process of ijtihād according to Imamiyya School of jurisprudence is a key concern in this study. The answer to the question regarding the role of time and space is based on the theoretical framework of balance (I'tidāl) concerning the role of time and place in ijtihād in the sense that some rules are beyond time and space. Thus, they are immutable and fixed as they do not change with the change of time and space. Meanwhile, there are certain rules that change subject to the time and space. These changes take place in line with preserving those permanent and unchanging rules. These changes can be expressed in two positions: 1. The position of the essence of the subject that serves a prelude to the derivation of a ruling. Before inferring the ruling, the jurist makes sure he knows the subject from the evidence and also identifies the external subject of the time of inference. 2. The position of the application of the general subject to the external manifestation, which in many cases, like political and judicial affairs, is the duty of the qualified jurist. In fact, rulings are timeless and metageographical, and what changes within a span of time or at a given space are external matters.

Judgment is one of the social special positions which Islamic jurists disagree about the issue of occupying it by women. Scholars rely on the Qur’an, Sunnah, consensus and intellectual evidences to prove their own idea. The condition of being a male for a judge was first raised by Sunni jurists. Sheikh Tūsī was the first Shiite scholar who accepted it, as such before him there was no trace of this condition in Shiite jurisprudence. Allameh Hillī firstly was attributed to the idea of consensus on the masculine condition for a judge, as he thought that the women’ judgment would result in social problems and sedition. Many jurists and scholars followed Sheikh al-Tā'ifa (Tūsī) in this issue, and even later jurists claimed consensus on it. Shahīd 'Awwal in Lum'ah, the author of Miftāh al-Kirāmah, the author of Jawāhir, Sheikh Ansārī, and others say that women may only arbitrate (tahkīm). This research analyzes Islamic documents, using the descriptive-analytical method. Findings show that the prohibition of female judging in Islamic jurisprudence is not definitive, nor an Islamic necessary and definite rule. Most Islamic jurists do not accept getting the judge position for women, regarding their ijtihad and inference. They only accept the position of tahkīm (arbitration) which does not conclude the condition of being a man. Therefore, it is not the case that a woman does not have the right to judge. The issue of the possibility of sedition is also a mutual affair for both men and women, which is not specific to the profession of judgment. The inherent and natural differences between men and women in judicial affairs, like other social occupations, play the least role.

Political jurisprudence as an interdisciplinary tendency in the field of jurisprudence that deals with political issues and issues, although it has existed in all periods of jurisprudence, however, the establishment of the Islamic system with a jurisprudential approach has emphasized its necessity and has, in the present era, become a governmental approach to governing the jurisprudence, favorably and efficiently, with goals such as managing the life of the religion and the people of the world and responding to all the needs of life. Individual, social, and governmental responsibility for believers and citizens of Islamic society. this interdisciplinary tendency in the field of politics, despite sharing with other political science trends such as political philosophy, political theology, political ethics in the system of issues and political issues, in various ways such as method, end and purpose, resources and audience, relevance. They are different and have different characteristics. however, given the content of interdisciplinary tendencies in the political arena, political jurisprudence should be evaluated in the ranking of political arena tendencies, with a priori rank over political philosophy and political theology and a posteriori over political ethics. although the method of political jurisprudence is subordinate to the method of jurisprudence and uses the method of ijtihad in analyzing and presenting rulings, it has a more holistic approach to reason and a minimalist approach to worship. obviously, the scope of political jurisprudence was subject to the conditions of the time and in the time of the jurisprudence's power, it was responsible for analyzing the individual issues of the jurists and, in the case of the social authority of the jurisprudents, it was responsible for analyzing the different aspects of social and governmental life and administering the system of governing the lives of Islamic society.

Historical perspective is one of the methods of understanding religious texts. In this method, any understanding of these texts should be examined under the influence of the context during the period of its issuance. In his Ijtihad method, Ayatollah Boroujerdi has paid specific attention to the historical perspective and it seems that it is the historical perspective in the situation of traditions and historical roots of controversial issues that supports his interpretations of traditions. Through this historical perspective, he had achieved an unparalleled ability to interpret and justify traditions. Therefore, it can be said that he had a special and independent method in Ijtihad with a comparative method. In this article, we would like to briefly introduce the Ijtihad method of this prominent jurist and explain the place of historical perspective in his process of Ijtihad and its characteristics in three areas: 1- Principles 2- Hadith and Narrators 3- Jurisprudence and prove that paying attention to this component prevents abstract discussions in Ijtihad and it will significantly increase the certitude of the intention of the Infallible Imam.

This article provides a comparative analysis of the role of legal philosophy in the development of human rights within Western and Islamic intellectual traditions. The study begins by defining and conceptualizing legal philosophy in both schools, followed by an examination of their historical roots and theoretical foundations. The impact of legal philosophy on human rights development in both traditions is analyzed, including the Enlightenment's influence in the West and the role of Sharia and Ijtihad in Islam. In the comparative section, similarities and differences in legal philosophy between the two schools are highlighted, focusing on the role of the individual and society, the influence of cultural and social factors, and the role of international and Islamic institutions in advancing human rights. The findings reveal that both traditions, despite their fundamental differences, have contributed to the development of human rights from distinct perspectives. These differences and similarities can enhance international cultural and legal interactions and improve legal policy-making at various levels.

the jurists have voted that "Al-Taziri al-Ijtihade al-Amami". But it is necessary to know the meaning of "ijtihad in ta'zir" in order to distinguish it from the term ijtihad in the sense of acquiring jurisprudence for the Shari'a ruling or knowing the Shari'a.Research Questions: 1- Does ijtihad in ta'zir mean knowing the Shari'a law or acquiring it? 2- What is the relationship between ijtihad in Ta'zir and the infallibility of the infallible Imam(AS)?According to the results, in the traditions and the sayings of the jurisprudents, there is no transgression in the ijtihadism of Ta'zir, as some have stated it, some have pointed it out. In this essay, it is argued that ijtihad in ta'zir does not mean ijtihad in terms of (knowledge of the law or acquiring jurisprudence for it), but rather, the expediency of the jurisprudence. Confirmation of this result is the narrations and the words of the jurisprudents in which the ijtihadites have been determined to determine the amount of Jizah, Raza, Abdul's price, etc. in the sense of expediency.

Judge independence guarantees fair hearing. Famous jurisprudents consider withdrawal of judgment for Mojtahed and consider his sentence to be effective. But according to note 3 of the Civil Procidure code: "If the judge is a mujtahid and consider the law unlawfull, the case will be referred to another branch for consideration", and it seems that Judge Mojtahed's scientific and practical independence has been challenged. The authors argue that preventing Judge Mojtahed from ruling without contravening the principles of judgment contradicts the independence of the judge, contrary to the law. The perverse implications of this are the isolation of ijtihad in the judicial process and, the excessive presentation of the virtues and dignity of Mojtahed. Therefore, by meditating on the narrative and rational documentation, the legislative approach in the note, as the only way out of the challenge, rejects the issue of referring the matter to the Guardian Council or the Jurisprudential Council or the Fatwa of the Supreme Leader, as a competent reference for recognizing conformity or noncompliance. Laws are recommended by law.

Ijtihad has no meaning in the real sense of the presence of the Prophet of Islam and the first movements of ijtihadi have necessitated a short while after the accessibility to the source of revelation. When the caliphate's turn came to the second caliph, the storm of the Islamic conquests of the east and west of the world quickly swept through that era, and it was not until the Islamic revolution spread across the width of the two empires of the Eastern Roman Empire and the Sassanid Empire. Major political developments from Islamic conquests over a short period of time could have been the source of great changes in jurisprudential knowledge and the principle of political rule was established, but the caliph restored all of the public and political institutions of the newly created lands to its previous structure and allowed this jurisprudence to enter into legal areas Did not give a public rights. The second caliph according to his personal morals, went on to worship Ejtehadat. The letter of the second Caliph to the Shori'ah Ghazi is considered as the first charter of ijtihad and the giving of a fatwa, in this charter Ijtihad is considered very difficult and only a choice for necessities. The process of issuing fatwas and ijtihad during the caliphate of Usman continued in the same way. At the same time, a group of Companions who were known as the jurisprudents, were ijtihad.

In the first centuries, the way of ijtihad was open in Islam, but gradually it was closed and made obligatory within the frameworks of four main jurisprudential denominations. Some scholars like Ibn Taymiyyah criticized this approach and considered the path of ijtihad open. From twelfth century, Salafi movements, following Ibn Taymiyyah said that the path of ijtihad is open. Nowadays, Wahhabism, Muslim Brotherhood group and Jihadi Salafis believe that the path of ijtihad is open, however, there are so many disagreements on the subjects of ijtihad and taqlid among them. The majority of Wahhabi scholars avoid from considering themselves as absolute mujtahid and consider themselves as the followers of Ahmad ibn Hanbal. Accordingly, they suggested Tamazhob theory which was criticized by Naseroddin Albani. He maintains that Wahhabi scholars should go toward the absolute ijtihad. Famous figures of Muslim Brotherhood group like Sayyid Sabiq and Yusuf al-Qaradawi have claimed that they are absolute mujtahid but maintain that they can follow other denominations as well. Jihadi Salafi scholars also consider themselves as absolute mujtahid so they declare that others are pagans and non-believers. Using a library and descriptive-analytical method, this article has an in-depth look at ijtihad from the viewpoint of Salafi scholars and studies the disagreements among the great Salafi scholars. Finally, it refers to some of the consequences of this view.