فصلنامه جستارهای فقهی و اصولی
سال پنجم شماره 2 (پیاپی 15، تابستان1398)

 A portion of Islamic teachings apart from devotions and obligatory deeds are signatory rulings, i.e. the rulings in which the sharia legislator has not made any new adjustments and has acted upon the conduct of the intellectuals.  Having defined the signatory rulings, the present research has discussed issues on the nature of signatory ruling in three sections: the first section is dedicated to the difference of signatory rulings to recommendatory commands and prohibitions, the issue which has been mistakenly considered as the same; the second section is to answer this question that if signatory rulings are regarded as a category of sharia rulings or they are merely about intellectual affairs which have nothing to do with the sharia legislator per se. The third issue deals with the division of signatory rulings into the desired and imposed as claimed by some contemporary legal researchers. The results of this research prove the criticism of these three contemporary opinions with respect to signatory rulings that has not been conducted earlier. [1]

Ambiguity in some useful propositions in principles of jurisprudence has caused disputes among osuli scholars. Searching in some osuli books, one may find out that some propositions by the majority of these scholars have been considered as “definite, intellectual, natural, and free from argumentation”.  On the other hand, some other scholars have raised doubts such propositions totally, which are reflected in the issue such as inexpressible indecency of punishment, the indecency of tajarri, manifest authenticity, and certitude authenticity. The point is that occasionally these two parties of the dispute are of the opinion that what they claim are taken for granted and they are sure about them. The question to be answered here is that what is the reason for such an odd disagreement? It is believed by the researchers of this paper that given such propositions are clearly stated, the origin for the disagreements is determined.  In the course of the research, the researchers have analyzed such unwritten rules governing the humanistic societies (general public requirements).Having differentiated the “individual requirements” from “general public requirements” and having delimited the “intellectual and rational rules”, the researcher have concluded that osuli propositions belong to social requirements and intellectual accounts whose wrong  mingling with individual intellectual rules have caused the aforementioned disputations.

The majority of jurisprudents are of the view that observing the moon is legally valid given it is carried out by a naked eye but not an armed aye. However, Ayatollah Hashemi Shahroudi’s view is in contradiction to the viewpoints of the majority of the jurisprudents and he believes that the word observing in texts refers to both naked and armed eyes. Delimiting the observation to the customary observation of the moon crescent by the time of text issuance is not valid. Likewise, based on the text of Sahiheye Mousa bin Ja’far given a sharp eyed person observes the moon, it is equal to observing the moon with magnifier and the jurisprudential criteria for both of them are alike. Thus, the present research is to substantiate the validity of new magnifiers in observing the moon crescent based on Ayatollah Hashemi Shahroudi’s viewpoint. The researcher has scrutinized the ten criticisms leveled against this viewpoint by great scholars such as Sayid Ali Sistani, Shaykh Ja’far Sobhani, Sayid Mahdi Khalkhali, and Shaykh Muhammad Taqi Shahidipour.

 The majority of Imamiyah jurisprudents negate the administration of justice for religious dissents for their dissent from the right religion and have ruled to their corruption. Amongst them, a number of jurisprudents believe in the negation of justice from these dissents and have attacked them to corruption subject to the cases where their dissent to the right religion is intentional and knowingly and their guilt is presumed and documented. Having investigated the concepts of truth and corruption, the researchers of this research have criticized the reasons indicating the dissents' corruption and have stated convincing reasons in the feasibility of justice administration in the Muslim public community. Furthermore, the attitude of the jurisprudents who believe in the dissents' corruption is supported. Accordingly, the requirements for verbal and practical principles in case of any doubts in the applicability of corrupt title to their external cases mean that they are just. [1]

Custom plays a key role in administrating justice which is the ultimate goal of and the philosophy of all of the legal schools, as all of the legal systems consider it as the most important source for passing the law. In the Islamic legal system, recognizing the law as the basis of rules authentication is doubtful as the shari’ah legislator is the only reference for laying out the laws. However, the legislator has never negated the custom and its foundations absolutely and has approved it in some cases as well. Likewise, the jurisprudential resources have discussed the issues on custom more or less, but by investigating them, one may find out that jurisprudents do not recognize it as the reference for deduction and rarely refer to them in stating the jurisprudential rules, so as the majority of jurisprudents consider the custom just as a benchmark for clarifying the concepts and determining the cases for them. According to the findings of this research, the custom which roots in natural rules, ethical values and rational principles is the only one which could be used as the criterion for discerning the justice.

Gratuitousness witness refers to the state in which one person voluntarily swears in witness. The majority of jurisprudents have considered such kinds of witnessing in right of people as invalid and subject their view to the documentations such as witness’s being in charge of charges, consensus, or the hadiths on bāb. The note 2 of the article 155 of the Civil Procedure Act considered gratuitousness witness inadmissible already, while the article 204 of the new act ratified in 2013 considered it subject to the inspector’s identification or to the plaintiff’s submission or to the accused request which is in accordance with jurisprudents statement. The present study has used a descriptive-analytical and problem-solving method to review the mentioned documentations and has criticized their validity and has contended that the indications related considerations and the rules of bāb in admitting the witness of the intended person are of significance.

Consulting experts in technical and specific issues to discover the truth, namely in trials, is of paramount significance in Islamic law and jurisprudence, and even the expert’s advice is considered as the main pillars of trials. Thus, to have a valid expertise opinion, he should be qualified enough with some specific qualifications. According to some scholars, to have a valid expertise opinion either in trials or other issues, the expert should hold witnessing qualifications such as multiplicity and justice of a witness, and on and so forth, while some other scholars do not regard them necessary. With respect to different cases of referring to experts in different entries of jurisprudence and Islamic law and by examining the qualifications of an expert and stating the nature of witnessing and comparing the issue of testimony to expertise we may conclude that the natures of testimony and expertise are different, and only in specific situations in which the qualifications of witness are observed, the expert could be in the position of the witness, otherwise the opinion of a reliable expert is the criterion.