فصلنامه جستارهای فقهی و اصولی
سال ششم شماره 2 (پیاپی 19، تابستان 1399)

The function of Generalities and Absolutes of the Qur’an and the Sunna in resolving jurisprudential matters is among the common principles used by the jurists. However, the method of applying them with the new issues and conditions of their usage is among the high demand topics within the modern jurisprudence matters. This article is responsible to elucidate a primary step in using the Generalities and the Absolutes in resolving new issues; meaning learning various types of the Generalities and the Absolutes completely when faced with new issues and the method of using them in various situations. The innovation of this article, aside from using two methods of rational and common knowledge, is providing all of the various forms of the Generalities and the Absolutes in regards to the new issues within a logical structure along with proper method to apply in every case.

Customary subjects have a major part in the Islamic jurisprudential subjects that their methodological understanding plays a significant role in the inference of Islamic jurisprudential rulings. Applying the jurisprudential approach in the process of understanding customary subjects is significant. In this sense, it is necessary to explore the aspects of the subjects which have been under consideration by experts in field of "Cognition"; The aspects which are effective in the inference of jurisprudential ruling. The jurisprudential understanding of the customary subjects includes, at least, the identification of stages such as type, concept, criteria, and examples of which this article attempts to draw these steps systematically. The findings of this paper indicate that the first step in recognizing the subjects of the Islamic rulings is to determine their type through a clear definition of customary subjects. Accordingly, customary subjects fall into two distinct categories: the textual (Manṣūs) and non-textual (Ghayr Manṣūs) that the recognition of their stages and types requires specific method and rules. To distinguish between types of subjects, this paper introduces two principles: the Originality of non-transmission (Aṣālat ʿAdam al-Naql) and the Originality of non-qualification (Aṣālat ʿAdam al-Taqyyīd), as well as thirteen important points, to recognize their concept. At the end, the method of identifying non-textual subjects is discussed.

Methodology is a branch of the philosophy of knowledge that deals with issues that are useful in understanding the methodology of a science and discusses research methods, sources, tools and disadvantages. Ijtihād means action or the faculty of deduction of religious rulings from its proofs. The new issue is a subject that is new and whose religious edict is not to be found in religious texts.. There are two reasons for not finding a Sharʿī verdict regarding a new issue: 1- There was no issue at the time of issuance of transmitted traditions; 2- There were issues at the time of issuance, but its features, conditions, and limitations were changed in the present time, which requires a new injunction. Ijtihād in these issues is based on the existence of edict for all the issues, expansion of ijtihad, and refereeing the proof of new issue to the trinary sources (i.e. The Quran, Transmitted traditions and Reason), in which one must adhere to jurisprudential principles and have a thorough understanding of the subject and consider spatial and temporal conditions.  There are two types of proofs to deduce the edict: Ijtihādī and Fiqāhati proofs. The Ijtihādī proofs include the Necessities of Islam, Wisdom, Custom of wise (Sīrat al-ʿUqalāʾ), Generalities and Absoluteness, Uṣūlī rules, Jurisprudential rules, Modification (Tanqīḥ al-Mināṭ) , Motive-indicated analogy (Qīyās Manṣuṣ al-ʿIllah), Prioritized analogy (Qīyās al-Awlawīyyah), Abolition of peculiarity (Ilghāʾ al-Khuṣūṣīyyah), Custom (al-ʿUrf), Macro-jurisprudence strategies and expediency. Jurisprudential proofs include the Principle of continuity (al-Istiṣḥāb), the Principle of exemption (Aṣālat al-Barāʾah), the Principle of choice (Aṣālat al-Takhyyīr) , and the Principle of precaution (Aṣālat al-Iḥtīyāṭ). Developing from current jurisprudence to ideal, promotion from passive Jurisprudence to active, having social approach in Ijtihād, havinga comprehensive look in Ijtihād, specializing the discussions of Fiqh and to promote from traditional subjectology to the scientific, are the necessities of Ijtihād in new issues. There are numerous damages in deducing new issues, such as inaccuracies in understanding the subject, incorrect matching of Generalities and Absoluteness to the issue, slip in identifying the Interests and spoilers of the issue, mixing different issues, Impose on Shariʿah, contrariety and landing in the trap of modernism.  This article examines the methodology of Ijtihād in new issues through analytical descriptive research method and library documents.

The authority of the Single chain of transmission (al-Kabar al-Wāḥid) is one of the extant discussions in jurisprudential, principled, and commentary books. The origin of the term "Authority" often refers to jurisprudence; however, it has also reached the literature of the science of the commentary of the Holy Quran. For example, the question of authority in the commentary has been specifically addressed in such matters as the authority of the Single chain of transmission, as well as the authority of the words of the companions and subordinates. But the serious question remains that what is the concept and function of the term “Authority” in other sciences beside jurisprudence? With regard to authority, one can speak of the distinction between the use of authority in comprehension and the authority in practice, and even the inability to use authority in comprehension and cognition. Concerning the term "Single Chain of Transmission "can talk about possibility of different approach. in non-jurisprudential areas. This function can be followed while analyzing the relationship between the text and the audience (both when producing the text and when interpreting it). Nonetheless, removing one's mind from the jurisprudential perspective and the distinction between jurisprudence and other (whether interpretation or history, etc.) is not due to limitation of the jurisprudence, instead it is due to its depth throughout the history and its unintended impacts on other Islamic sciences.

The search in jurisprudential method of jurists, leads the searcher to deal with two general methods of inference. The first method, which is interpreted as the "Contentment-based" (Qanāʿat Miḥwar) method, is the way in which the jurist integrates various conjectures of the issue and attaches them to each other, giving him the credibility, assurance or conjecture which is considered as the best  possible way regarding deduction of the Sharʿī  ruling of the issue., even if  each one of those conjectures and evidence has no value in inference separately; in another word they are not "Probative" (al-Ḥujjat) separately based on Uṣūlī term The second method in the process of Ijtihād is called "Tradition-based" (Ṣanāʿt Miḥwar) method. According to this method the jurist infers the verdict by applying a specified and bounded group of proofs which their authenticity has been proved in Uṣūl. If those proofs miss the requirements of authenticity, the jurist puts them aside and refers to procedural principle. The article attempts to compare the juristic method of Ṣāḥib-al-Jawāhir and al-Khuʾī based on comparative research method, to declare the different fruits of these two methods. Keywords:  contentment-based method, Ṣāḥib al-jawāhir, al-Muḥaqqiq al-Khuʾī

Since it is likely to find a group of proofs which are in conflict with each other in verdict regarding one subject,  after identifying a jurisprudential problem and searching for sources and other introductory steps, the step of consolidating between the proofs becomes an essential in the algorithm of ijtihād. The tools used to resolve initial conflict, are practically the most important part of the process. The present study has attempted to find evidence through the inductive research to support the notion that the practices used in the process of gathering proofs are not confined to conventional and predetermined methods, as a selective example in the “Jawāhir Al-Kalām” Book. The findings, while confirming this hypothesis, provide practical examples of unreported methods of gathering opposed narrations through three mechanisms including Incompatibility at the verdict of opposed parties, , Multiplicity of their subject, and finally seeking external proofs (such as ratio change Inqilāb al-Nisba) can be used in the proposed model for drawing the accepted ijtihad algorithm in the field of opposed proofs.

The authority of the Celebrity of Verdict (al-Shuhra al-Fatwāʾiyya) is the topic of discussion between the scholars. Some have included examples from the works of the Shekh Ansari claiming that he has overtaken from his Uṣūlī method in regards to the Celebrity of Verdict. Then the reason for such an overtaking has been discussed. Some have proved his consideration in the closure proof (Dalīl al-Insidād) and considered his usage of the Celebrity of Verdict as using unconditional conjecture. Others have considered the reason as a psychological element that has made a great scholar such as the Sheikh Ansari to fall for a mistake as well. According to the findings of this article, which has used descriptive – analytical approach, aside from case studies of various examples and judgement of their verdicts, the two analyses mentioned here can be rejected; because the Sheikh denies the Celebrity of Verdict as an independent source. In another word there is no decisive reason for authority or devotional authenticity of the Celebrity of Verdict as an independent source. This does not have anything in contrary to the Celebrity of Verdict being used if the celebrity entails knowledge and certainty. It is because whenever the celebrity entails certainty, using it means using the certainty which itself is the common knowledge, rational authority and Shra’ī authority. Hence there is no disruption in Sheikh’s Uṣūlī view point and jurisprudential method.

This article attempts to find the answer to this question: Is it possible to discover and simulate the methods that the jurists use in their inferences with the details that go through the mind of the jurist? If so, how? If inference (ijtihad in jurisprudence) is a methodological epistemological attempt to discover the justification for the "obligatory verb" and if the inference and ijtihad (inference process) are transitive actions that the jurist performs step by step to discover the commentator from the starting point (facing the problem) to the end point (issuing a Fatwā); and if the methodology of ijtihād (process of inference) is actions and reactions that the jurist takes step by step to discover the view of the Almighty from the starting point (facing the problem) to the ending point (issuing the fatwa), and if methodology and presenting an algorithm that accurately determines and describes the step-by-step process of solving a problem such that the starting point and ending point, the number of steps, the logical order of steps, and implementation instructions are described in each step without any gaps, then it seems that the operation of ijtihad and inference can be described algorithmically. How to do this can be done in two ways: 1. Field induction of jurisprudents' performance and their analysis by discovering their methods. 2. Deductive according to cause and effect implications that exist in the sciences of Jurisprudence and Uṣūsl (Principles). Every jurist has his own deductive method which by analyzing his performance in his inferences can be given the details of his method and accordingly, different methods of jurists can also be studied comparatively and can also be deduced based on deductive method. The discovery of the deduction process validates the methodology of each jurist.

The term "Algorithm" has been used in the scientific communities for a time. The term means the processing of any operation. In fact, the algorithm is as an inferential device that is grounded in the knowledge of the principles, reasoned and theorized and given to the jurisprudent. The jurists in the jurisprudential discussions, of course, have had an algorithmic approach to the inference of the Sharʿī ruling, but they did not state it in a clear way, so the proposed algorithm of this research is to clarify the jurisprudence algorithm. Therefore, the proposed algorithm of this research is to clarify the Mental (al-Irtikāzī) algorithm of jurists. The output of this algorithm is the Sharʿī verdict and its rank; that is, the inference algorithm must answer the question of whether the sentence has been legislated or not? And if so, has it reached actual level? And if it has reached actual level, has it reached its incontrovertible stage or not? Therefore, the proposed algorithm is based on the same hierarchy of verdicts. Therefore, in this paper, using the library resources and based on the descriptive-analytical method, the function of jurists is investigated to derive their inferential algorithm.