جستجوی مقالات مرتبط با کلیدواژه "secondary titles" در نشریات گروه "فقه و حقوق"

The theory of "conflict of conditional obligations in legislation" is about the scope and rules of legislation based on secondary titles. According to this theory, it is wajib (obligatory) in legislation that the rulings of Islam (including permissible, obligatory and status) and the goals of religion and the purposes of Sharia need to be all considered; that is, it is the condition of correctness, and is considered as the conditional obligation in legislation. These conditional obligations may conflict with each other, and it is in this conflict that the legislature finds the permission of legal silence or the permission of legislation contrary to the religious ruling. In the present article, this theory is compared with other theories in this regard, their commonalities and differences are described in detail, and through this comparison, the author has both explained the independence of the theory of the conflict of conditional obligations in legislation based on those theories, and has clarified the scope and rules of legislation based on secondary titles according to these theories. The proof of this theory has already been explained in the paper The Theory of Conditional Obligations in Legislation and here it is only compared with other theories. The method of this comparison is analytical and based on library sources. The result of this paper is a detailed explanation of the scope and rules of legislation and legal silence based on secondary titles, and it can be applied in the legislative system of the Islamic Republic of Iran  , regarding the duties of the Guardian Council and the Expediency Discernment Council in legislation.

Ijtihad is one of the most important conditions that jurists have set for the judge. This viewpoint is based on the first rulings. The question now is whether it is possible to decree according to permissibility of muqallid's (the person who performs taqlid) judgement, based on secondary titles such as urgency, fear, expediency, etc. The jurists disagree on this point. The majority of them seem to be right in the permissibility of the muqallid's judgment. This study has been carried out with the aim of recognizing the scope of this permissibility and its conditions and the duties of each jurist and the muqallid's judge, assuming the realization of secondary titles of urgency and expediency, through descriptive-analytical method in the field of jurisprudential thoughts and library date collection method. The finding suggests that the ruling should be in the circle of Shari'a, the most important should take precedence over the important, consultation should be used in recognizing secondary titles, and the muqallid should decree as a judge according to the fatwa of the appointed Mujtahid and Consult in judicial affairs. In addition, the ruler has duties in relation to a non-mujtahid judge; including creating a suitable context for his judgment, legitimizing the judgment of non-mujtahids and prioritizing the best to the better.

Human and his needs is constantly changing; As well، social phenomena are constantly changing. On this basis، the question is that how is it possible those phenomena، that are changing constantly، be compatible with stable legal laws that their lawfulness and lawlessness is firm until the Resurrection? A part of this problem will be solved by a part of fixed principles and holistic rules of jurisprudence (Shariah). As well، a part of this problem is solved by secondary titles (''anawin thanawiyah). Therefore، the role and importance of secondary titles is not less than primary titles in inference of legal laws and if Holy Legislator did not ordained secondary laws، the Islamic jurisprudence (Fiqh) became incomplete and a lot of actions of obliged humans would remain without ruling. Secondary laws and titles are used throughout Jurisprudence and can be seen in various chapters of Jurisprudence، from chapter of «cleanliness» to chapter of «limits and atonements». This article is seeking out to obtain the status of secondary laws and titles in jurisprudence and to show their relationship to primary laws and titles and to prove efficiency and dynamism of Islamic jurisprudence.