نشریه مطالعات اصول فقه امامیه
پیاپی 2 (پاییز و زمستان 1393)

Sometimes a Mujtahid does not find any scriptural or textual proofs related directly to the subject-matter in which case he must inevitably rely on certain practical and procedural principles which originate in the (human) intelligence ('aql) as a source of derivation of Islamic laws or emanate from some existing generalities in textual sources. The existence of such principles have played a pivotal role in development and dynamism of jurisprudence to such an extent that one can, relying on them, opinionate on newly emerging and unprecedented subjects and can thus extract their rules which have been derived from reason and generalities in textual sources. Meanwhile, some scholars have played a very important role in the advancement and development of the procedural principles. This article aims to study the course of the development of the procedural principles from the time of Sheikh Mufid until the present era. Especially, the momentous role of two of the most renowned figures in the development of the procedural principles have been examined, their thoughts in the area of procedural principles as well as their innovations and novel ideas have been highlighted.

The relationship between the principles of jurisprudence [Usul-e Fiqh] and other sciences including philosophy is an issue which, if investigated, would enable researchers to make stronger and more efficient theories. The present research aims to study the role of Islamic philosophy in connection with the substructures of the principles of jurisprudence. In this article, first the extent to which other sciences need Islamic philosophy has been explained. Then the role of Islamic philosophy in connection with the substructures of other sciences especially the principles of jurisprudence has been discussed in the sense that the Islamic philosophy can play two important roles in regards to the substructures of Ilm al-Usul, one being the formation of the substructures and second being their consolidation. As many as 06 principles or rules (Qawaed) have been discovered and explored in this story. These principles are instrumental in the formation of the substructures of the principles of jurisprudence. These substructures in turn serve as a foundation for inferring and deducing Islamic laws. In fact, mentioning these rules does not necessarily mean that they are accepted by late Akhund Khurasani. However, since Akhund has mentioned them, the writer has also touched them and criticized some.

The conflicting oral testimonies are one of the important issues in legal discussions. What is generally said is that the presence of two just witnesses is sufficient as a proof of something. At times it happens that the claimant may have two witnesses while the defendant too might present two witnesses in which case the first testimony is contradicted by the second. This contradiction is the subject of study in this article. If the two sides are the parties to the legal case, they will take an oath or do nokul (lit. refusal) in which case the thing which the two sides are disputing over will be halved. Some jurists like Sheikh Tusi (ra) are of the view that the denier has no right to present two witnesses. They have said that the denier has the right to only take an oath, not to present witnesses. Some other jurists like Allamah Hili (ra) have stated that the denier has the right to present witnesses. In fact, it has been said that the denier has such a right only in non-legal cases. However, there are people like Abu Salah al-Halabi who believe that the denier has the right to present witnesses (internal evidence) and if their oral testimony contradicted that of the plaintiff (external evidence), the testimony of the denier takes precedence. Some jurists like late Naraqi and Imam Khomeini (ra) are of the view that in the case of contradiction between the testimonies of the two parties, the denier's testimony takes precedence. Indeed, every single approach in this regard has its own respective reasons and arguments. The writer is of the view that occurrence of contradiction is possible between internal and external evidences and some jurisprudents like Sheikh Tusi (ra) have finally said: "If the external testimony mentions the cause for its testimony, it will take precedence." The Second Martyr (ra) also gives precedence to internal testimony to internal one in case the proofs are equally credible. But the true opinion is that none of the evidence precedes the other. If both evidences are dominant, the denier has to take an oath and the decree will be issued in favor of the one who is holding the property in possession.

Maqasid al-Shariah as the philosophy of Islamic laws or the purposes of Islamic faith which have also recently made their way into Shia researcher's studies is, in fact, the intellectual legacy of Abu Hamid Ghazzali, a sixthIslamic century Shafeei jurist. It was Ghazzali who, for the first time, used the foundational purpose of the Islamic faith as a theory through which to do away with a part of the issues for which there were no explicit references in the Quran and prophetic tradition. This was an approach different from those of his predecessors but it was consistent with rational standards. Obviously, the proposition of such an idea having certain implications in Sunni jurisprudence is unprecedented in Shia jurisprudence and the need for such a theory was never felt because the Shia jurisprudence relying on the doctrines of the infallible leaders in all domains not only benefits from specific explicit evidences but it also has certain principles through which it can continue to address all areas of human life without having to resort to any other tools. In addition, the theory itself needs to be mused over since it is confined to five fundamental goals, not to mention the fact that it is not compatible with the major principles of Asharite school of jurisprudence and that it lacks genuineness as compared to analogy and masalih mursalah (consideration of public interest).

The human intelligence is one of the sources of derivation of Islamic laws. There is no doubt about this faculty being a valid and authoritative source according to Shia school of jurisprudence. When it comes to the limits and extent of the authority of reason ('aql), an extensive discussion has taken place among the scholars of Ilm alUsul but still there is not a comprehensive and complete standpoint and a perfect image that might have meticulously studied and reflected the different layers of the issue. The writer of this article critically assesses two famous views in this connection one being "the authority of reason restricted to perceptions close to the sense" and the other being "the authority of reason being restricted to praised views (Aarai mahmooda).

The authoritativeness of the individual meaning of a word as provided by a philologist is a subject -matter with special significance and relevance to the principles of jurisprudence and jurisprudential philology. The present study sorting out the functions and authority aims to say that identifying the different applications of a word and knowing their general and specific, real and figurative meanings as well as their apparent significations are among the functions of a philologist's word. As well, based on the principle of tawatur (mass transmission) and validity of a special surmise on the authority of a philologist's saying, it can be said that one may take for granted the tawatur of a number of words based on the induction or analysis carried out by the philologist. It is therefore possible to accept the authority of a report transmitted by a single report erwhich bears other requirements of authoritativeness (hujjiyah). As well, we can accept the validity of a philologist's saying provided that the philologist is indepth knowledge of philology and is fully confident and that there is noother probability for understanding the meaning. Thus, the preliminaries of the argument for insidad (lit. closure) would be practically incomplete and the third approach would be incorrect.