فصلنامه فقه و اصول
پیاپی 124 (بهار 1400)

Theory of conventional perceptions is one of the innovations by Allame Tbatabaei. By introducing this theory, he has significantly influenced various sciences and provided new opportunities. Science of Usul al-Fiqh has also been greatly affected by this theory. Allame Tabatabaei considers Usul al-Fiqh as a conventional science and believes that unlike real sciences, what distinguishes these sciences is their purpose. In addition, Allame considers Usul al-Fiqh as a science that speaks about the rules set by the wise, which is also a result of the theory of conventional perceptions. Although this theory has solved many problems of Usul al-Fiqh, it also has some drawbacks; for example, there is doubt about the conventional nature of Usul al-Fiqh, the appellation of sciences and the conduct of the wise and its validity. In the present paper, through a descriptive-analytical method, this change in the subject-matter of Usul al-Fiqh has been explained and some criticisms have been discussed.

Some verses and hadiths involving the precepts are reasoned by ratiocinations which have been divided by the Islamic jurists into two categories called successively, real motive and apparent motive. On the opposite of apparent motive, if something is considered as real motive, it will be generalizer and restrictor of precept. In this paper, the authors have attempted to discover the basis of this classification, the concept and the similar and different characteristics of apparent motive and real motive. It appears that the jurist has mental background due to the famous fatwa, specific hadiths and the spirit of caution in the classification of ratiocinations into real motive and apparent motive.

Execution of religious precepts and managing the important and public affairs is among the duties of the sharia ruler or the highly qualified religious jurist and the arbitrary action as to these affairs by members of society without the authorization of sharia ruler is not acceptable. There are precepts in the Islamic jurisprudence including prescribed punishments whose execution by ordinary people, at first sight, appears to be permitted while if they fall within the competence of the public, this leads to chaos in the society and is, apparently, against public order. The present paper, through case studies on a number of such precepts, seeks to answer the question whether assigning them to the public contradicts the public order or not. The conclusion is that such precepts were issued at a time when the Islamic state was not established and the individual jurisprudence prevailed and private interests were preferred over public interests. However, in situations the righteous Islamic state is established and the social and political jurisprudence prevails, the precepts of the governmental jurisprudence are given priority over the above said precepts. Some precepts which contradict the public order and have been issued due to necessity are restricted to exigent circumstances.  Proving the point that whenever the great jurists have mentioned order they have intended public order is also an achievement of this research which has been performed using library tools and through descriptive-analytical method.

Explanation of the meaning of mental disorder and the mental disordered person as a widely used word and a jurisprudential term and examining the criterion of the distinction of this concept in order to identify its examples is a necessary task selected as the purpose of this paper. Examining the literal and terminological definitions, evaluation of the existing narrations and analyzing the jurists’ opinions when they considered these narrations and discovering the relationship between mental disorder and insanity form the main topics of this study. Section of the concept of as the only standard of non-application of penal punishment in the Penal Code, doubles the necessity of semantics of mental disorder as the counterpart of insanity in jurisprudence. The outcome of this research is achieving the definition of mentally disordered person under the general title of “intellectual deficiency” whose relationship to insanity in the jurisprudential terminological meaning (any internal problem which causes disturbance (disappearance or deficiency) of intellectual abilities or cognitive power concerning the committed act) is generality and peculiarity in some respect; therefore, a group of mental disorders under the title of mentally disordered are excluded from the scope of duty and execution of punishment according to the criterion specified by the lawgiver, the same as insanity.

One of the epistemological problems with which the classical and contemporary Usuli researches are struggling and occasionally results in disagreement and as a result, defeat of some Usuli discussions is the lack of commitment by Usulis to a single discourse and confusion of discourses in Usuli analyses. Reflecting on the precious heritage of Shiite Usulis leads to the identification of a total of seven discourse themes which, from a logical and to some extent historical order are: the discourse based on the interpretation of the legislative will as creative will, the discourse of the general custom, the discourse based on the relations between servant and master, the discourse based on subtle literal significations, the theological discourse, the philosophical discourse and finally the legal discourse. In this article, after a general explanation of each discourse theme and citing instances of Usulis' opinions, the effect of discourse difference on Usuli inferences has been shown in the issue of combination of positive and negative orders. Subsequently, in order to answer the question which discourse among the seven discourses deserves to become dominant in the analysis of Usuli issues, by offering certain arguments, the legal discourse has been introduced to qualify in this regard.

If Islamic punishments are looked at ostensibly, it may seem that Islamic criminal jurisprudence has adopted a rough and harsh approach towards the wrongdoers; however, by reinvestigating the teachings of Quran, narrations and Islamic jurisprudence one may infer the principle of tolerance in the Islamic criminal system which is a foundation and rule in the stages of discovering, investigating, proving and issuance of judgment. The present study, through an analytical-descriptive method, seeks to prove the existence of the principle of tolerance in the Islamic criminal jurisprudence and examine how it affects criminal jurisprudence. The advice to repentance and restraining from confession, not imposing Hudud (prescribed religious punishments) in cases of doubt and the necessity of multiple confessions and witnesses in proving a crime are clear manifestations of the principle of tolerance in Islamic punishments which indicate the approach of Islam in protecting human dignity on the one hand and encouraging to hide the crimes, decriminalization and depenalization on the other. This principle is not limited to Hudud and may be a foundation of Islamic criminal law and involve other religious punishments. Proving and analyzing the above said principle results in removing ambiguity and responding to the current challenges in the Islamic criminal law.

The orientation of interpretive and linguistinc studies in the present age and especially after the linguistic turn, has differed in some resprects from the past tradition of linguistics in homogeneuos sciences such as Usul al-Fiqh and classical hermoneutics. In this article, with a comparative view, the issue of “impossibility of episteme” to the scared texts in philosophical hermeunetics science (from Gadamer's point of view) and Usul al-Fiqh science (from Mirza Qomi's point of view) with emphasis on the issue of obstruction of knowledge and episteme has been studied. In Usul al-Fiqh science, with the above said point of view, with emphasis on “certitue as to speeches of Quran for the case of presence in the revelation time”, “dissimilarity of Quran to human writings”, “non-obliging to burdensome duty”, “circle and arc of conjectures” and “distinctiveness of the meaning of the purpose not the appearances of the Book”, the pssibility of knowledge and understanding of Quran have been questioned; On the other hand, in the philosophical hermeunetics, by offering arguments such as “the interference of presuppositions”, “Dasein's time interval”, “author-orienting understanding”, “reconstruction of the hermeunetical past and experince”, “hermeneutic circle and fusion of horizons”, “the principle of absoluteness”, “inseperability of understanding and language” have refused the pssibility of episteme in another way. The present areticle, with a systematic view, has attempted to judge and evaluate the foundations and reasons of this denial in the three “semantical”, “intellectual-philosophical (ontological, epistemological, methodological)” and “historical and contextual” areas.

Accepting the oppressor's rule, in spite of the emphasis of religious texts on its prohibition, has been permitted in some cases and such permissibility is either based on religious texts or in accordance with certain rules admitted by Islamic jurists. In the present paper, through referring to jurisprudential texts, it has been concluded that cases of permitting the oppressor's rule  are wider than the cases mentioned in the texts or which have been considered as instances of the general rules. Accepting the oppressor's rule  with the purpose of enjoining the right and forbidding the wrong, provided that without accepting the authority proposed by the oppressor, complying with these two divine obligations won’t be possible, is one of the most important cases which, although not mentioned in religious texts and not being in accordance with the general rules established in jurisprudential texts, is regarded as a cause of the admissibility of accepting the oppressor's rule and has been admitted by the vast majority of famous Islamic  jurists. The present paper has dealt with the criteria relied upon by Islamic jurists in authorizing the acceptance of the oppressor's rule in the above said case and by criticizing and reviewing it and the arguments of opponents, has achieved another way to solve this problem.