نشریه مطالعات اصول فقه امامیه
پیاپی 12 (پاییز و زمستان 1398)

The present article discusses four theories in trying to arrive at a legal ruling:1. Ijtihad based on one's independent rational reasoning; 2. analogical ijtihad;  3. explorative ijtihad 4.exclusiveness in hearing from the Infallibles
The self-conceived ijtihad or the Ijtihad which is based on independent rational reasoning and analogical ijtihad about things that are not evidenced by any textual proofs and traditions from the Prophet (s) and his noble successors is disapproved and denounced by Shia scholars and it also suffers from challenges from both textual and rational perspectives. The Shiite scholars of Ilm al-Usul have distanced themselves from these two inference methods defining Ijtihad as the application by a jurist of all his faculties to the consideration of the authorities of law with a view to finding out what in all probability is the law.  However, some other Shia scholars have critically assessed the method adopted by the Usul scholars restricting the derivation of a legal ruling to hearing from the Infallibles (as). Although what the Akhbari's are pushing for precedes other methods of inference, restricting inference of legal rules to this method leads to unnecessary constraints and difficulties and it is also in contravention with the teachings of the Infallible Imams (leaders), peace be upon them.
The present article focuses on a number of reports and gives answers to them. In the end, the article also deals with authoritativeness of the inference rules from both essential and legislative perspectives.

Ibn Idris had certain initiatives in jurisprudence and ijtihad. In an interesting way, he implemented the Usul rules in jurisprudence and despite denying the authenticity of the single news, he was able to perform ijtihad without relying on solitary reports; he has redressed the shortage of such reports with extensive reliance on reason and Quranic verses. Criticizing Sheikh Tusi's views and opinions widely, Ibn Idris marked a new chapter in the history of the development of Shiite jurisprudence and legal theories (Usul), and rendered great services to Shiite jurisprudence and legal principles.

Concurrence (better known as tasālum) of jurist is a kind of agreement that can be instrumental in establishing a given legal ruling. In other words, there is an indisputable and self-evident truth about which jurists are unlikely to have any discrepancy. This study focuses on "jurists' tasālum" (concurrence), providing its definition, history, and explaining how it differs from consensus, unanimity and reputation [shuhra]. As well, the authority, features and effects of such a concurrence has been meticulously examined with the views and standpoints of some scholars pointed out and taken into account to provide, ultimately, a comprehensive and documented picture of the jurists' concurrence. Similarly, the role of jurists' concurrence in the derivation of Islamic legal ruling has been highlighted and it has been concluded that jurists' concurrence is way higher and more significant than that of the Companions, as well as consensus, reputation and other similar instruments. It materializes when all jurists in the same category are tilted towards it and give fatwa with reliance on it in a way such that it is considered to be a clearly and conspicuous principle of the religion.

To prove the validity and authoritativeness of juridical phenomena, propositions and statements, Muslim scholars use the well-known sentence "the requirements are existing and the barriers are missing". In order for an effect to come into being it is essential that, in the theoretical (thubūti) stage, the requirements should be present when the barriers are missing. However, when it comes to the substantiation stage (ithbāti) and the juridical propositions and laws which are considered to be mentally-deposited, it is impossible to explore all the hurdles and barriers quantitatively and qualitatively. Real knowledge of such barriers is a prerogative of Allah and it is not possible for mankind to get knowledge of the nonexistence of barriers when man himself is limited in capacity and accession to demonstrative arguments. Therefore, the possibility of a barrier, though minor in terms of quantity, is always there. The barrier restricts the requirement in its influence on the effect. If this probability is regarded as hindrance to the emergence of the effect, it will definitely cause the window to a lot of juridical premises and laws to be closed. Thus, in this study we shall demonstrate that a kind compromise has occurred in this well-known statement which is used in juridical analysis i.e. "the requirements are existing and the barriers are missing". Thus, the absence of a barrier is never ascertained; rather absence of barrier refers to non-substantiation of a barrier.

One of the topics about inference of legal rulings is the discussion concerning the legal ends of jurisprudence.  Understanding the general purposes of Islamic law can help extract legal rulings, or, in cases of conflict of arguments, it can be considered as the cause of preference or dissolution of conflict. It can also be used in interpretation of texts and understanding matters that lack any textual proof as well as in reducing uncorroborated laws and creating a balance and preventing imbalance. The Sunnis have pioneered this method but they have not added to it any proofs. The recent generations of Sunni scholars have realized this defect and enumerated some reasons such as verses from the Holy Quran in a bid to prove general purposes like safeguarding the religion, life, honor and property of people or facilitation of justice and some other purposes which have been criticized in this study.

In article 874 of the civil code of the Islamic Republic of Iran, the legislator relying on the principle of Istishāb (presumption of continuity) says, "the person whose date of death is unknown will take an inheritance form the other." Jurists and experts of legal theories (Usulis) see this differently. Some consider this article of the civil code to be against the widely held (mashhur) opinion, but the truth of the matter is that not only this article is not against the widely-held opinion but it is also consistent with jurisprudential and legal standards. If we consider Istishab to be among the practical principles, according to Sheikh Ansari, Akhund Khurasani, Allamah Haeri and most of the Usul scholars who are of the view that things proved through practical principles are not valid, the article 874 of the civil code falls out of the signification of invalidity of the substantiating principle (asl-e muthbit). Additionally, there are exceptions in the said principles according to which the reason of authoritativeness includes this kind of implication, and that article 874 is consistent with some of these exceptions.   However, if we consider Istishab to be an indication (amāra) suggesting rational possibility, it is known among scholars that the ramifications of the indications (amārā) are authoritative. As a result, taking recourse to Istishāb and the substantiating principle in article 874 of the civil code is not contradicted. Some jurists like late Imam Khomeini (ra) whose opinion is based on meticulous rational examination of Islamic laws, have referred to the principle of deferment (ta'khkhur) of hādith (occurrence) irrespective of whether Istishab is viewed as an indication or not. Thus, based on this principle, the article 874 is in accordance with jurisprudential criteria.