جستجوی مقالات مرتبط با کلیدواژه « philosophy of jurisprudence » در نشریات گروه « فقه و حقوق »

The possibility of sciences interacting and exploiting each other is one of the topics of the philosophy of science, and jurisprudence is no exception to this rule. Therefore, jurisprudence also requires the use of other sciences in different fields, especially in knowing the subjects of jurisprudential rulings, which has a wide scope. However, this article only deals with the mechanism of jurisprudence's use of intellectual and narrative sciences in knowing customary subjects and according to the necessary stages in knowing the subjects of jurisprudence, in each of these stages, it has dealt with the sciences and how to use them. The result suggests that jurisprudence can be used in the stage of identifying the type of the subjects, in terms of whether or not it is prescribed by Usul, in terms of the Shariah using some sciences such as tafsir and hadith, in the stage of distinguishing the subjects from tafsir, hadith and history, and in the stage of distinguishing the concept and nature of subjects from intellectual sciences such as logic and narrative sciences such as tafsir, hadith as well as sciences such as statistics and new technologies.

Although Imamiya jurists consider judicial discrimination unjust, they believe in the narrative assignment of this principle. In their opinion, the judge has right to consider the Muslim superior to non-Muslim in the court. This fatwa has not been stipulated rare, but it was claimed that there is no objection against it. this research has tried to investigate the roots of this discrimination and has reached this conclusion that regardless of the documental weakness, the relevant narrative argument is also incompatible with valid and stronger narrative arguments in terms of text and content. In spite of stronger narrations, the popularity of such a fatwa, on the one hand and acceptance of inherent and intellectual goodness and badness and the connection between the rule of reason and sharia, in the philosophy of jurisprudence of the Shia thinkers on the other hand and ultimately the impossibility of assigning rational rules from the perspective of Shia fundamentalists, it is resultant from the rupture of Imamiya jurisprudence with the philosophical and theological principles governing it (philosophy of jurisprudence) and the rupture with the rules of jurisprudential principles accepted by the Shia fundamentalists.

One of the demands of feminists is to permit and legitimize abortion. Because it is a matter of the right to life of another person, it is perhaps the most challenging demand. Therefore, attempts have been made to provide various reasons in this regard. Referring to the right to choose, the right to freedom, as well as adhering to the right to flourish women's talents and also seeking help from the right over one's own body, the feminists seek to prove their claim. This paper, taking a view of the philosophy of jurisprudence as a science that is responsible for extrajurisprudential explanation of the jurisprudential affairs, investigates these fundamental issues. It considers the proof of these reasons weak and neutral, deems such attempts unsuccessful, and explains the disagreement between such principles and reasons and Islamic principles of the philosophy of jurisprudence.

One of the arguments cited by Imamia jurists in jurisprudential and Usul al-Fiqh books to prove or disprove a verdict is the prohibition of establishing a new jurisprudence. Despite the relatively high use of this argument among jurists, no definition of establishing a new jurisprudence has been offered nor has the reason behind its prohibition been presented. What this research seeks to find is the concept of establishing a new jurisprudence and the reason behind its prohibition. For this purpose, the Imamia jurisprudential and Usul al-Fiqh works and other written documents have been searched and studied using various keywords and after finding examples of jurists' citations, the authors have attempted to discover the concept and the reason behind prohibition of establishing a new jurisprudence. The result of this research is that establishing a new jurisprudence has been considered to be the same as having rare opinions and changing the permanent verdicts. The probable bases of this prohibition which is obtained in some way from the opinions of jurists are: the correlation between establishing a new jurisprudence and opposition to Idjma, contradiction with the necessities of the age of the Infallibles, contradiction with the spirit of worship, contradiction with the standards of Usul-al-Fiqh, contradiction with the requirements of religion and contradiction with rectifying the effective cause. By examining each case, its inability to prove the prohibition of establishing a new jurisprudence has become obvious. Therefore, it can be said that establishing a new jurisprudence is not per se prohibited; however, this does not mean that a new jurisprudence is in contradiction with the traditional jurisprudence. Instead, it means the necessity of applying strong arguments in jurisprudential inferences.

Based on common definitions, jurisprudence has been designed to explain and elaborate the rules and their evidences. By evidences we mean the documents that prove that a certain rule is God’s command and according to expression of the jurists the reason for issuing a rule is not related to the mysteries of rules and the philosophy which is concealed in its issuance. The jurist is not obliged to unveil these secrets, however the increasing expansion of communities, versatility, and plurality of the necessary issues in the society have proven that reliance on the evidences doesn’t fulfill the needs of the society and one cannot expect that there should be a reason from among the legal evidences for every social necessary issue. Therefore, it will be inevitable to seek help of the reasons of legal evidences to determine the religious task at the time of silence or ambiguity or religious rules and to generalize the existing rules to other cases by means of reason or in the cases when the reason is resolved the rules also have to be resolved and to expand or spoil religious rules. This important issue necessitates that the jurists do not suffice to express the evidences and to take a step toward etiology. The present study aims at explaining the accurate meaning of the reason and the necessity to explore and explain the reasons of rules and consequences of incorrect etiology to prepare the ground for the movement of jurisprudence from explaining the evidences to explaining the reasons and to provide the fundamentals of establishing the evidential jurisprudence through identifying the correct methods of reason exploration. By doing this, it can help and improve the evidential jurisprudence and can prevent from undesirable effects of unprofessional reasoning for rules.

The present research titled "What is the philosophy of jurisprudence" aims to address the following questions: Do we have a scientific discipline or field of education named "philosophy of jurisprudence"? If there is one such science, what are its epistemic features? In fact, speaking of the nature of the philosophy of jurisprudence requires us to investigate the existence of a science which may be incorporated in the epistemic domain of the philosophy of science which gives rise to this question: Do we have a science by the name "philosophy of jurisprudence"? If the answer is in the affirmative and we have such a science among the added philosophies, this will give rise to another question. Can we have such a science alongside jurisprudence? What are its distinguishing features? What are its scope, realm and components? How does it relate to jurisprudence? The conclusion drawn out is that:
1. The philosophy of jurisprudence is a new branch of science considered to be among the added philosophies within humanities.
2. The philosophy of jurisprudence is a second rate science that aims to explain the history, imaginative and decisive knowledge and methodology of jurisprudence. All the presuppositions of jurisprudence are considered to be issues underlying the philosophy of jurisprudence.
3. The philosophy of jurisprudence has some elements in common with other sciences such as the principles of jurisprudence, theology, philosophy of religion etc.

With the advent of Western Philosophy discussions in Islamic world, Islamic scholars have faced new topics in this regard. Hermeneutics is one of these sciences, which has raised lots of debates in the areas of understanding, knowledge and commentary in Islamic sciences. This article mentions only some of the debates of this area which are related to Jurisprudence. There exist questions such as whether there is a connection between these two branches of the science and or one of these fields can impact on the other or be impacted by. If assumed that the Hermeneutics is effective [on other sciences], then is it part of the Jurisprudence or is it an emerging juridical issue by itself? Among the issues being discussed in this article is how do the Hermeneutic approaches interact with the Jurisprudence or impact on. In this article after a brief explanation of the case and expressing the fundamental distinctions of the two approaches in Hermeneutics, first, a view that maintains no relationship between hermeneutics and Jurisprudence has been criticized and in the second stage, the status of the Hermeneutics in comparison to Jurisprudence and also this question whether the Hermeneutics is part of the Jurisprudence have been explained. Finally we try to consider how the two fundamental Hermeneutic approaches (i.e. Classic Hermeneutics and Philosophic Hermeneutics) independently impact on Jurisprudence.