جستجوی مقالات مرتبط با کلیدواژه « Ijtihad of a judge » در نشریات گروه « فقه و حقوق »

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.

Since adjudication is one of the most essential and important subjects in the religious jurisprudence and law, the qualification of the judge is very important and so Islam underlines the competence and jurisdiction of the judges. This issue was negotiated from the time of Sheikh Tousi but in the last couple of century some open handed jurists that practically have tried to end the hostility have studied different sides of this subject more considerably. One of the conditions for the qualification of judge especially in religious jurisprudence is Ijtihad (divine law on matters of theology and law). The most famous jurists believe that Ijtihad is necessary in adjudication. They have indicated the narrative and rational reasoning about Ijtihad. The author of Javaher believes that only the Mojtahids who have all conditions are allowed to be a judge. On the contrary, some jurists, mostly the modern ones, believe that Ijtihad is not a necessary condition in adjudication and they talked in considering the lack of reasons that know Ijtihad a condition and the other persons who aren’t Mojtahid can also be a judge. This article explains the forgoing aspects and then with the study and research about the theoretical principles of the common Ijtihad of judge, according to reliable documents, proves that Ijtihad for judges is not necessary.