نشریه مطالعات اصول فقه امامیه
پیاپی 8 (پاییز و زمستان 1396)

Relying on the principles governing the procedure of deduction as well as on verses, this research proves that analogy is not valid and cannot be authoritative under any circumstances. As for ilgha alkhususiyah (lit. cancellation of particularity) which has been considered by Shia scholars as one of the ways of deduction, it has been accepted as authoritative and valid by scholars of both branches of faith. On the other hand, considering that cancellation of particularity is a conventional signification, its validity is linked to outward or apparent meanings of words, not to mention the fact that it is corroborated by solid foundations such as the custom ('urf) and consensus (ijma'). In this study, some narrations from the Infallibles (AS) have been mentioned in which the cancellation of particularity has been applied. That is why these procedures look to be the same in the beginning but when we take a careful look at the concepts and fundamentals as well as the arguments associated with them, it will be proved that there are basic differences between analogy and cancellation of particularity, the former being a valid means according to Sunnis and the latter being a valid instrument according to Imamiyyah School of jurisprudence.

In modern time, the rapid progress made by mankind and the emergence of modern needs have led some scholars and jurists to pay more attention to the variables. That is why we are witnessing theories offered by prominent Shia scholars such as late Imam Khomeini (ra), Allamah Tabatabai, Shahid Mutahhari and Shahid Sadr. The most consistent and complete theory offered in this regard is that of Shahid Muhammad Baqir Sadr which is titled Mintaqat al-firagh often translated as vacuum zone or vacancy area. This is one of the titles initiated by him and it is a highly important theory with great ramifications and instrumentality in economics and political jurisprudence. One important area where governmental orders may be issued is the vacuum zone which is an area of Islamic Shari'ah devoid of any mandatory rulings but because of the varying nature of rules, subject matters and titles it is open to legislation by a qualified ruler who is in charge of Muslims' affairs . Governmental orders fall within the jurisdiction of the Muslim ruler, and the vacuum zone refers to an area where the Muslim ruler can engage in legislation taking the expediency and best interest of Muslims into full consideration.

This article seeks to study certain rules that demonstrate that the meaning of the text is dependent largely on how much a text is vivid and clear in its purport and signification. These rules include the "Rule of Coinage (invention of new words)" the relationship between words and their meanings being mentally-posited, the rule of the signification of words based on their outward and surface meaning and the rules of the authoritativeness of the apparent meanings of words. These rules which are corroborated by logical and rational reasons and are based on logical hierarchy show that text is not silent, and that to consider a text as silent is a groundless attitude, rationally and logically uncorroborated. Furthermore, to consider a text as silent amounts to overlooking the inalienable linguistic rule i.e. the rule of coinage, and in a broader sense, it amounts to ignoring the social aspect of the language. This research is based on textual sources and has been organized in a descriptive – analytical way.

Different views have been expressed with regards to application of Istishāb (lit. presumption of continuity) in temporal or time-bound matters. According to all scholars of Usul (legal theory), and also rationally and philosophically speaking when a meticulous study is conducted, Istishāb is not applicable to time bound matters. Thus, a given doubted subject-matter cannot be presumed as having remained because it does not have previous state to be supposed. Likewise, Istishāb kulli or general presumption of continuity also does not apply because the general existence of something which was taken as a part of a previous individual object has ceased to exist and the same general entity as a part of a succeeding object was doubted in the first place because it is not known for sure whether or not it occurred. Additionally, the basic components of incomplete presumption of continuity do not exist nor is there unison between a definite and certified premise and a doubted one. According to a conventional musamaha (overlooking), despite differences of opinion, most of the scholars of Usul are of the view that the presumption of continuity can be applicable to time-bound matters. That is because, in the eye of custom ('urf), the certainty has been affected by the ensuing doubt, although there are differences in common view. Some have, in an absolute way others in a particular case, considered customary ('urfi) unity as a criterion. In any case, there is nothing to bar the application of Istishāb because certainty exists as a previous mode and the ensuing doubt is also there. Moreover, the purport of "do not break your certainty with a doubt" is true with gradual matters.

The culture of Ijtihad and research manifested itself in the human society ever since the advent of Islam with scholars from the School of Ahlul- Bayt (AS) making more efforts in this area than those of other schools. They left an important legacy of views and opinions in every field of science that they stepped into. One of the branches of rational sciences is Ilm Usul al-Fiqh (lit. knowledge of principles of jurisprudence) which scholars use to derive and deduce legal rulings from their sources such as the Quran and Sunnah. At times, this has led to discrepancies in their views and verdicts. Obviously, the outward and surface meanings of the Quranic verses and traditions are one of the main reasons responsible for the differences. The Sunni populace who have deprived themselves of the knowledge of the family of the Prophet (S) have taken recourse to rational reasons such as istihsan (juristic preference), common good, blocking the means and analogy which have no value and momentum in the school of Ahlulbayt (AS). The hadith being issued in the state of taqiyah (dissimulation), the differences in the recitation of the Quran, the effect of social conditions on the Mujtahid's verdicts and identification of the criteria for trustworthiness of the narrator are some of the main causes of difference of opinion among the scholars of both branches of faith.

One of the important issues debated and discussed in legal studies including law, jurisprudence and its principles is the presumption of continuity in the supposition of 'a doubt in delay' (shak fi al-ta'akhur). It is evident from the sources that this doubt is not free of three scenarios. Either the date is known or it is unknown or there is one thing whose date is known and another thing whose date is not known. If the date is known, the scholars are unanimous that the presumption of continuity will not apply. If the date is unknown, two views have been recorded: Some scholars are of the view that since there did not exist a previous state of certainty, the presumption of continuity will not apply to it, while some others maintain that there is a previous state of certainty but since there was no link between doubt and certainty, therefore the presumption of continuity had not been applied.
In the event that one of them was known and another was unknown, many ideas and opinions have been presented in Usul al-Fiqh three of which have existed for a long time: Where the date of a given object is unknown Istishāb holds good and will apply to it and where the date is known, Istishāb will not apply to it.