نشریه مطالعات اصول فقه امامیه
پیاپی 3 (بهار و تابستان 1394)

Given the fact that any argument about the 'discretionary area', the area of vacuum (mantaqat al-faragh) is possible in the existence of an Islamic government and a jurist having the power to administer and execute religious laws, this theory can be very much applicable in the de facto situation in which all the requirements are met. In this study, the term mantaqat al-faragh has been defined and ambiguities have been discussed and removed. The rational and textual reasons have been presented to prove such a discretionary area for wali amr i.e. the ruling jurist. The discretionary area where an Islamic jurist can legislate has something to do with nonmandatory rules which can be changed into mandatory and binding rules by a qualified ruling jurist, if the conditions are met. As well this article seeks to examine whether a ruling Muslim authority can have discretion over mandatory rules or not. If he can, what kind of discretion can he have? Since in this study the aim is to study the nature and reasons that substantiate mantaqat al-faragh, the objections and criticisms concerning the subject-matter have not been dealt with, though efforts have been made to present the theory in such a way that it is prone to less objections. That is to say the possible objections have been answered in an implicit way.

The present research in the principles of religion is very important and unique because it seeks to examine one of the relationships within the reasons for Islamic laws. It aims to explore a new relationship among these reasons which are different from the quadruple relations e.g. takhaṣuṣ, wurūd, takhṣiṣ (taqyīd) and finally ḥukūmat. This new relation is called suppositional application (lit. tatbiq iftiradhi). This proposed relationship refers to a particular kind of substitution by considering a special subject which is not currently and really present but the rule is applied to the subject in a bid to find out the rule of the intended subject and ultimately taking that rule into consideration. The writer, who has also conducted independent research and illustrated these relations elsewhere in the past, seeks to explain the significations and pieces of evidence to prove the hypothesis.

It is well-known among Shia jurisprudents as also asserted by scholars in their works that the sources of derivation of Islamic are four: The Quran, Sunnah, consensus and reason. In spite of the fact that reason has been generally viewed over the history as a source of derivation, yet it remains a point of contention and debate due, largely, to the ambiguity concerning its definition. When examining the jurisprudential system of every jurisprudent, we must see as to what his definition of ‘aql (reason) is. A part of the historic manifestations of reason are the frequently used principles such as the principle of "presumed innocence" (asl baraat al-dhimma) and the principle of istishab (presumption of continuity). Another part of it constitutes dalil al-khitab or the methods of understanding a speech in the way it is delivered. This study seeks to study the viewpoints of prominent jurisprudents from Shiekh Mufid to First Martyr (Muhammad Jamaluddin al-Makki alAmili) and while examining the course of development of the status of reason in deduction, it makes mention of the innovations and novel thoughts of each jurisprudent in this area.

The conflict among various pieces of evidence or clear signs is one of the important legal topics. An example of conflict or contradiction is when two just witnesses bear witness in favor of the plaintiff and then they are contradicted by other two just witnesses who testify to something in favor of the denier or defendant. This issue is thus discussed under The Contradiction between Inner and Outer Clear Proofs. It has been stated by jurisprudents that if the two parties to a legal case have control over the contended object, both of the two sides are made to swear. If they refuse to do so, the thing will be halved between them. Some jurisprudents such as Sheikh Tusi maintain that the denier has no right to present two witnesses. He has the right to declare an oath, not to present any witnesses. Some other jurisprudents such as Allamah Hilli holds that the denier has the right to present witnesses but he has stated that the denier has the right in non-judicial matters. However, people like Abu Salah al-Halabi believe that the denier also has the right to present witnesses and that in cases of contradiction between proofs of the two parties, the denier’s proof will take precedence over the claimant’s. Some jurisprudents such as late Naraqi and Imam Khomeini (ra) are of the view that in the case of a conflict, the denier’s proofs will precede. Of course, every group of scholars has presented its own reason to prove its argument. However, the writer believes that in the existence of a conflict between an inner and outer proof, none of the two proofs is preferred and as both proofs cannot be discarded either, the solution is that both parties are made to swear and the decision will be made in favor of the one who is currently holding possession of the disputed object.

One of the points of contention concerning the principle of istiṣhab or presumed continuity in Ilm al-Uṣul relates to the theoretical support that causes amârât to take precedence over this principle. The basic assumption among the contemporary scholars is that the principle of presumed continuity is used where there is no evidence (amârah). When it comes to why an amârah precedes the said principle, there are discrepancies among the scholars. Late Sheikh Ansari is of the view that the precedence is due to an amârah governing the principle of presumed continuity. According to this approach, the relationship between two arguments is that of the main text and marginal annotation and that the principle of presumed continuity is understood with this assumption that amârah is dominant. On the contrary, late Akhund Khurasani has spoken of wurūd saying that in existence of a valid evidence that leads to a strong speculation, the principle of presumed continuity goes to the periphery and cannot be applied. Although scholars like Shahid Baqir Sadr has defended a variable called takhṣiṣ, Imam Khomeini (ra) has put forth a pattern as per which takhṣiṣ is the only way out to resolving contradiction among oral evidences. As for wurūd, it can be used to present an argument characterized by a lack of verbal supervision. The arguments behind this theory that can be seen with Shahid Sadr’s juridical notions can be instrumental in solving this dispute as well as in explaining the sphere of the linguistic principles for a coherent understanding of the apparently conflicting proofs.

The interaction between philosophy and principles of jurisprudence as two important branches of knowledge in the area of Islamic sciences can have significant outcomes and effects. The principle of ‘al-wâhid’ is one of the philosophical principles with a great many functions in juridical areas. To prove this, the most important argument is the principle of cognation (similarity) of the cause and the effect in the sense that if different things (effects) emanate from a single thing, then there must be some aspects of multiplicity in the essence of that cause because there must be cognation between cause and effect whereas, in fact, "there will not be issued from one thing more than one". In other words, insofar as something is considered to be one thing, it can have no multiple dimensions.
The principle of ‘al-wâhid’ has numerous applications in Ilm al-Usul. The present study seeks to analyze ten applications of this principle in juridical areas according to Shahid Sadr. First application: Proving a subject for every science; second application: The use of a word for more than one meanings; third application: The assumption that a word with an absolute and unrestricted meaning is used for a particular thing; fourth application: The assumption that a word includes all correct instances in the issue of sahih and a’amm; fifth application: the assumption that a word includes all correct and incorrect (fasid) instances in the issue of sahih and a’amm; sixth application: Analyzing wujūb takhyiri (optional obligatory duty) in the state of contradictions; seventh application: Analyzing wujūb takhyiri in minimal and maximal quantity; eighth application: Definition of concept; ninth application: Proving a concept; Tenth application: The issue tajarri .