فصلنامه جستارهای فقهی و اصولی
سال هشتم شماره 2 (پیاپی 27، تابستان 1401)

Contemporary Uṣūlī scholars have developed a fourth type for general istiṣhāb (presumption of continuity), which has been the subject of serious controversy. In Uṣūlī literature, the fourth type of general istiṣhāb refers to the istiṣhāb that the occurrence of the object is certain, and there is a secondary knowledge for the occurrence of a title that is likely to accommodate with the said subject; when there is a possibility that the title will accommodate with another subject, the first subject will be removed, if that title accommodates with that subject, it will forcibly remove the subject, and if it does not accommodate with it, it still has the ability to exist. Therefore, its existence is doubtful. With the realization of the pillars of istiṣhāb, the general istiṣhāb of the fourth type finds validity and authenticity in terms of confirmation, but some Uṣūlīs have absolutely denied its validity. Therefore, the main purpose of the present article is to review the subject and the rule of the general istiṣhāb of the fourth type and to explain its examples and manifestations in jurisprudence and law with an analytical-descriptive approach. According to the findings of this research, the objections of the opponents of the validity of the general istiṣhāb of the fourth type raised against sharʿī example, not to the principle of istiṣhāb. Thus, objections to the example should not be generalized to the rule. By proving the validity of the general istiṣhāb of the fourth type, the jurisprudential and legal manifestations and accommodations of this issue were discussed in the following cases: general istiṣhāb of the continuity of ʿĪd, general istiṣhāb of getting permission to make alterations in leases, mandated and interrupted endowment contracts, general istiṣhāb of kufr regarding apostates, and injustice in narrator-authentication of the testimony of witnesses.

One of the important and influential factors in understanding the jurisprudential hadiths is the question of the narrator and it is considered as the strongest analogy in removing the ambiguity of the jurisprudential hadiths. The issuance of narrations by the infallibles is based on the custom of the colloquialists and without considering the question of the narrator, it is either completely incomprehensible or there is doubt in understanding it. Studying the narrators' question helps to dispel such ambiguities. In some cases, the narrator's question has been an obstacle to inference. Shiite jurists have long offered solutions to some ambiguities arising from the narrator's question.This article uses a descriptive-analytical method to carefully study the prominent role of the narrator's question in disambiguation and possibly ambiguity based on the reaction of jurists in the face of the narrator's question.The question of the narrator is the best analogy in removing the ambiguity of the jurisprudential hadiths, so that if the narrations are considered without asking the narrator, most of the hadiths will be excluded from the circle of jurisprudence and jurisprudence. The narrator's question plays an important role in interpreting the sentences, explaining the contents, identifying the gender and type of sentence, and recognizing the restrictions in the religious hadiths. In some cases, the complexity of the question, incomplete quotation or omission of the question has caused the transmission of ambiguity to the words of the innocent. Comparison between similar hadiths, considering the classification of hadith companions and paying attention to the personality and position of the narrator is one of the most important solutions that can be used to resolve the ambiguities arising from the narrator's question.

Jurisprudence and ethics are among the sciences that have many similarities and commonalities with each other and there was the interplay between these two since the beginning. The various interplay between jurisprudence and ethics can be examined with different approaches. This article proposes a recommendation approach, examines the interplay that should be between jurisprudence and ethics. The effects that jurisprudence should have on ethics are: first, jurisprudence is the prelude to the emergence of ethical attributes and arguments second, it paves the way for understanding the ḥusn (good) and qubḥ (evil) third, it produces some issues in jurisprudence and applies them in ethics. Reciprocally, the effects that ethics should have on jurisprudence are the development of ijtihādī (subject to individual reasoning) and jurisprudential methods and the preparation of jurisprudential arguments by ethics, moralization of obeying the jurisprudential rules, applying other religious teachings as ethics, to create some other issues by ethics and to apply them in jurisprudence, enacting new jurisprudential rules by considering ethics, creating practical-legal rulings, the involvement of ethical teachings in the emergence of some jurisprudential rules, enacting of legal rulings so that Islam has legislated its flowing traditions and its positive laws based on ethics and taken great care in educating people based on that virtuous ethics, and making changes in the legal rulings when there is a conflict between Jurisprudence and ethics.

A public joint-stock company is one of the modern legal institutions that has not yet been fully explained from the perspective of Islamic jurisprudence. The jurists’ opinions on the subject of commercial companies are not exhaustive, although some of them have tried to justify it based on jurisprudential or civil companies. However, it seems that this kind of discussion is not correct and by attention to the nature of these companies, it is possible to understand that a public joint-stock is inherently different from a civil and jurisprudential company. In fact, a public joint-stock company is an institution and an organization, so equating it with a contract is a kind of interpretation or reduction of this multifaceted socio-economic phenomenon. Numerous issues, which play a pivotal role in the design of this institution, need to be examined such as the need for the consent of all partners in the company’s transactions, special privileges for preferred shares, death and insanity of some partners, etc. Considering all these issues and challenges, it seems that the explanation of a public joint-stock company based on existing jurisprudence faces some restrictions. The most important of these is a legal entity. The views of the jurists are not elaborated in the discussion of the legal entity and commercial companies. Using library resources and through the analytical-descriptive method, an attempt is made in this article to address this issue as well as other jurisprudential challenges of joint-stock companies.

Today, a type of computer game has become popular in which payments are made from the loser’s accounts.Due to the nature of winning and losing, these types of games are very similar to gambling at first glance. Therefore, a public demand has been made for the jurisprudential assessment of this type of payout, whether it is gambling or not.The subject of gambling in computer games has been discussed in contemporary jurisprudential research, but only the jurisprudential ruling of this type of game has been studied, and the method of recognizing gambling other than that has not been discussed. An innovation introduced in this article is the use of the subject analysis method with a jurisprudential approach in the study of various computer games and financial payments within them.While introducing the types of payments in computer games, the method of recognizing and matching the payment directions that make the games gambling has been presented. In conclusion, the method of determining the subject and the verdict (ḥukm) of the cases in which the payment for gambling cannot be identified is stated.

Undoubtedly, all jurists of the Islamic sects consider legal actions and property ownership of periodic insane to be ineffective in the state of insanity and correct in the state of mental health. Sometimes he engaged in a legal action and is not clear whether he did it when he was healthy or when he was insane. The jurists of different sects, as well as the legal experts, disagree in determining the ruling of this jurisprudential branch. Given that there is no explicit reference to this jurisprudential branch, some Uṣūlīs who consider it permissible to rely on the ʻāmm in shubhat al-miṣdāqīyyah, have adhered to ʻumūm and iṭlāq (generality and absoluteness)of the two verses, namely (ʻufū bi al-ʻuqūd) and (aḥalla allāh al-bayʾ) and considered the contract valid. Since, according to well-known Uṣūlīs, reliance on the ʻāmm(general) reason is not permissible in the shubahāt al-miṣdāqīyyah, some of them have invalidated the transaction by relying on the maxims of istiṣḥāb (presumption of continuity) and birāʾat (exemption), and some others validated the transaction by relying on the maximof ṣiḥat (soundness). After expressing the opinions and criticizing the evidence of each of them, the writers of this article, considering the certainty of the evidence of the jurists that have validated this transaction, believe in the validity of such a transaction.

Nowadays Algae are used as a nutritional supplement in many parts of the world.The ruling on eating this aquatic plant is not mentioned in the legal statements as well as jurisprudential sources.Contemporary religious authorities (marājiʻ al-taqlīd) have not agreed on a single point of view on this issue. Some have issued fatāwā on its lawfulness and others on its unlawfulness.Two basic ideas play a key role in this disagreement: first, the idea of the harm of  eating algae, and second, the belief that it is impure.In order to criticize these two ideas, in the first step, based on accurate scientific findings, it becomes clear that although some species of algae may be harmful, this type of aquatic plant is not considered a harmful plant speciesand incidentally many benefits have listed for it.In the second step, in addition to challenging the idea that the impurity of something makes it forbidden and also criticizing the reliance on this idea for its ambiguity in its meaning and criterion, it is concluded that, apart from the lack of connection between impurity and unlawfulness, algaecannot be considered as an example of impurity and its unlawfulness cannot be believed in this way.