نشریه کتاب نقد
پیاپی 54 (بهار 1389)

One of the fundamental questions in the philosophy of jurisprudence (fiqh) is the following one: "Faced by the changing needs and requirements of time and place, and in spite of the claim that with the Holy Prophet (pbuh) prophethood has been sealed and religion has been established, how may religious rules be efficient?" To understand the way time and place influence ijtihad, a particular ijtihad is required; and this is a particular way to access some religious rules. Adequate knowledge of the contemporary affairs as well as correct and reasonable attention paid to the requirements of time and place are of influence both on rules and the way of ijtihad and inference. To find that how those who infer rules and those who claim for understanding shariah (religious law) are able to be successful when faced by such changing and floating requirements of time and place, one needs to find harms in the way of inference while facing such affairs. In the present writing, the author tries to provide a correct and documented reply for the above question; of course, if we take into account the presumption that man's needs are divided into two parts (fixed and changing) and needs included in the fixed part are of a permanent and universal nature while those in the changing part will change if factors and backgrounds change, rules for each part will be, accordingly, different.

Dynamic ijtihad goes in two directions: rethinking of the existing methodologies and introducing new ones; but, experiences show that a dynamic system is vulnerable. That is why coming harms in the proceeding motion of ijtihad are, here, discussed. In rethinking, harms such as "stagnation", "inflation of principles", and that "studies are not professional and efficient" are paid attention to; and in introducing new methodologies, harms such as "absence of theorization", "eclecticism", "unkindness to other's valuable experiences" as well as "temporality" are discussed. In conclusion, results of the above discussions will be introduced.

In the present article, the theory of historicity of jurisprudence (fiqh) and Shariah (religious law) has been criticized. [Though] supported and promoted by some intellectuals, this theory has been criticized intrareligiously and extra-religiously. The present article discusses and criticizes this theory in various respects in a fundamental manner. According to the author, to take juridical rules as some historical ones will lead neither to dynamism of jurisprudence nor to its modernization; but rather, it will lead to construction of a new jurisprudence and innovation of new rules which are influenced by the time and place, and cannot be referred back to the Sacred Legislator.

"Philosophies of" include two groups: philosophies of sciences and philosophies of affairs; and philosophy of rules and rights is of the latter kind. Philosophies of sciences are disciplines of second order which, employing the history of the sciences added to them, provide replies for external questions of those disciplines; and, after description, go to analyze them in a logical way. Philosophy of jurisprudence or epistemology of jurisprudence is a discipline which, as an observing discipline, refers to jurisprudence and studies its subject, predicate, problems, premises, ends, methodological ways, and relations to other disciplines and phenomena. The most important question in the philosophy of jurisprudence concerns the essence of jurisprudence. Introducing a limited definition for jurisprudence, some authors have considered a minimal scope for jurisprudence. While describing this view, this article goes to introduce a comprehensive definition for jurisprudence, and provides replies for suspicions posed by the intellectual movement against the essence of jurisprudence.

Shii jurisprudence has been always updating and modernized, and provided replies for the needs of time. After victory of the Islamic Revolution of Iran and because of necessity of serious developments required by emergent needs, it has taken essential steps to study issues concerning religious government, and provided replies for various problems in the scope of management of political system, and it is still going in this way. Success in this way depends upon development in various fields of jurisprudence among which issues such as "necessity of rereading ends and objectives of jurisprudence", "development in methodology of ijtihad", "development of juridical resources", "attention to professional study of subjects in inference", and "professionalization of various fields of jurisprudence" may be mentioned. Taking into account the above issues, the present article has discussed modernization in jurisprudence in the present time and its requirements.