An Inquiry into the Reality of Wadhei Rules according to Mohaqiq Isfahani

The religious rules are divided into al-hukm al-taklifi (defining law) and al-hukm al-wadh`ei (declaratory rules). The taklifi rules are those which pertain to the servant's actions and deeds which are either mandatory or optional. As for the wadhei rules, they do not pertain directly to the servant's action. According to Mohaqiq Isfahani, a taklifi rule is "a dictate that is made with the motivation of creating a motive". He believes that wadhei rules are not limited to a certain number as it includes every unbinding rule. The important question about the wadhei rules is whether or not they have been independently legislated or they derive from taklifi rules. In the latter case, is it correct to say that they are Sharei rules at all? Does the term 'sharei rul' apply to them in the real sense or in a figurative sense? In response to this question, there exist several opinions among legal theorists. Some of them such as Shahid Thani, Sheikh Bahai, Fazel Toni, Wahid Behbahani and others are of the view that wadhei rules, like taklifi rules, have been created and considered by the Lawgiver. Therefore, the expression 'sharei rule' applies to them in the real sense. On the contrary, some legal thoerists such as Shahid Awwal, Sharif al-Ulama, Sheikh Ansari and others maintain that wadhei rules derive from taklifi rules and that the expression 'sharei rule' is not applied in the real sense. There is also a third view which somehow reconciles between the two groups of legal theorists.