فصلنامه فقه و اصول
پیاپی 129 (تابستان 1401)

Tahari is a kind of ijtihad effort to repel doubts in a state of necessity by relying on evidence that can often be used in worship and sometimes in other matters. Tahari is related to other words such as ijtihad, tavakhi( seeking the best opinion), inspiration, supplication and examination of fact in object doubts. This method has been rejected by some due to its citation weakness and has been considered as conjecture not sufficing to prove the right, but it has often been accepted as a last resort and in case of necessity and based on the practical life of the Prophet, Imams,  prophet's companions and some other narrated and rational arguments.  The authority of "tahari" is limited to the one who does it and it is non-extensible to others, and it is not considered as a comprehensive religious reason, and depending on the subject, it includes specific taklifi rulings. The research method is descriptive-analytical and the result of the research is the acceptance of stimulus as a practical method in case of emergency and to avoid mistakes and only in some issues.

The scientific rules and frameworks of understanding meaning are described under the title of semantics and pragmatics in different fields of linguistics. Considering that it is possible to access one of the main sources of Islam, that is, the sunnah of the Messenger of God (PBUH) through the oral and written traditions of the sunnah and the so-called khabar kahed, the semantic and pragmatic analysis of the premises raised by the great imami researcher of principles "Sheikh Ansari" in the topic of the authority of khabar vahed can illustrate the importance of  these methods. In this article, an attempt has been made to explain this position by using library tools and descriptive-analytical method. The results of the analysis of the triple preliminaries of the validity of the khabar vaheds in Sheikh Ansari's statement indicate that it corresponds to the principles of pragmatics simultaneously and in parallel, the principles of semantics such as the principle of Grice's cooperation in creating communication, the integration of form-oriented and role-oriented linguistics in the emergence of originality, as well as the context theory in semantics.

One of the conditions that couples, under the influence of the current socio-economic situation, are willing to include in marriage is the condition of not having children, while the legitimacy of this condition is a challenging issue in jurisprudence. In the present study, we are trying to answer the question of the legitimacy of the condition of not having children by descriptive-analytical method The result of the research is that the legitimacy and obligation of the mentioned condition from the point of view of certain jurists is not a license to commit a forbidden act or to use illegitimate methods in order to fulfill it, and in case of disturbing the obligatory obedience of the couple, the condition is not permissible. Also, if procreation becomes necessary in the society under certain conditions, the secondary ruling of having children is obligatory, and in this case, the condition of not having children in the marriage contract is certainly not legitimate and obligatory.

hypothetical jurisprudence, which with a little leniency can be called jurisprudence in  vacuum, is a product of foundations, methods, causes and factors, which due to its strong presence in the background and present of the institution of jurisprudence, requires a critical look in order to be more precise and objective with it. Paying attention to hypothetical jurisprudence as a jurisprudential approach is due to the fact that jurisprudence and jurists have distanced themselves from social realities and the objective challenges of the obligees on the one hand, they are boycotted from the government and marginalized on the other hand, has had consequences that in this article, while pointing to some of its foundations and harms, have been tried to be addressed on a case-by-case basis as a result of the lack of attention to thematics, an issue that has been considered by thinkers and those concerned about making jurisprudence more efficient in these decades.In this essay, the mentioned problem has been researched with a descriptive, analytical method and with a critical approach, and the hypothesis has been strengthened that the lack of attention to jurisprudential thematics and the decline of its place in the operation of inference is mainly the result of the rule of the hypothetical approach to jurisprudence.

According to the popular opinion, the effect of the prerequisites of hikmat (wisdom) in tamasok (seeking) is one of the wide-ranging fundamental issues after the era of Sultan Ulama. According to Akhund Khorasani's point of view, one of the prerequisites of the hikmat is to adhere to the etlagh (application), qadr moteyaghan and methods of discovering and understanding it. qadr moteyaghan is a person or a part of the motlagh (applied) that is definitely within the scope of the ruling. By dividing qadr moteyaghan into two types : qadr moteyaghan in the position of takhatob (communication) that is internal and external qadr moteyaghan, Akhund has considered qadr moteyaghan in the position of takhatob as an obstacle to application, but some usulists have not made a difference between the types of qadr moteyaghan in regard to application. After a detailed analysis of the types of qadr moteyaghan, this essay aims to answer this important question: What is the necessity of researching and applying the basic rules regarding the validity and authenticity of qadr moteyaghan, as well as its priority to adhere to its application, and how is this qadr moteyaghan discovered? In this research, by analytical and descriptive method, by examining different points of view and with special reliance on the opinions of Imam Khomeini and Martyr Sadr, the conclusion has been reached that, first of all, the implementation of the principles of hekmat is a consensus matter for the wise. Secondly, qadr moteyaghan does not prevent application to both of its types, and in fact, the primacy of qadr moteyaghan goes back to the fact that the speaker is in the position of communicating and qadr moteyaghan does not prevent application until it reaches the point of apparent enseraf (reffering to something), and as if in the statement of Akund Khorasani the meaning of the word on the bounded essence is confused with the description of a share that contains a certain attribute and the word that indicates the limitation of this attribute and its involvement in the subject of the ruling. Thirdly, knowing qadr moteyaghan is obtained in the customary way, with the help of the appropriateness of the ruling and the subject, and sometimes by using verbal clues.

Zakat is one of the obligatory acts of worship, which, according to the popular opinion, whose adequacy is conditional on pure intention and the intention of closeness to God. In the meantime, sometimes it is obligatory for the shari'ah ruler to force the obligee to pay zakat. In such an assumption, realization of the intention of closeness and also the adequacy of paying zakat is a matter of debate. The investigation about the possibility of forcing the obligee to pay and the adequacy of this payment by him depends on the investigation about the truth and nature of zakat as well as the examination of the documents of the conditionality of intention in it.According to the findings of this research, which was carried out in a descriptive and analytical method, zakat has a transactional-religious reality and the requirement of acquiring the intention of closeness in it is due to the multiplicity of the desired and the desirability of the intention of closeness is unique in the assumption of the possibility of its fulfillment by the obligee. Therefore, assuming the impossibility of acquiring the intention of closeness, zakat still remains on the principle of its desirability, and considering that this divine duty includes a vazaee and taklifee ruling, the payment of zakat by a forced taxpayer suffices and only leads to the disobedience of taklifee duty.

Before drafting the contract, following preliminary negotiations or on the basis of Islamic business practice and custom, the parties may accept some requirements and make the contract based on it, but do not specify it in the contract or do not need to repeat it in the text of the contract. A dispute has arisen in the validation and identification of the condition agreed before the contract, which is also called banaee, tabani or tavati condition, and the extent of the effect and influence of the condition included in the contract to such conditions.Since the tabani condition is not in the scope of composition and is a preliminary condition, the validity and origin of its effect and the extension of the effect and influence of the condition in the contract to this type of agreement which is neither explicit (conformity) nor implied (implicit) ) is not mentioned in the text of the contract, it is not easily possible and its acceptance faces harmful legal consequences and serious obstacles at the stage of soboot( as something is in reality) and esbat(as we think something is).

The rule of la-haraj is one of the facilitative jurisprudence rules in Islamic jurisprudence and one of its practical fields is urban life issues. Harassment and hardship in the city can manifest in physical, mental, social and financial forms. The study of this rule in urban life includes issues such as  difficulty in commuting due to long distances, lack of pedestrian orientation, traffic disruption, lack of public transportation, difficulty of using spaces for disabled people, noise pollution, congestion, urban floods. The results of the research show that in the Islamic city, the ground for the implementation of divine commandments should be provided and the planning and measures should provide the comfort and peace of Muslims. In the Islamic city, urban problems should be anticipated and taken into account in the process of urban planning, design and management. The application of this rule can have results in facilitating commuting, especially for the underprivileged, the efficiency and comfort of using urban furniture, transit spaces, access and stopping, etc. Also, the ease and well-being mentioned should be a specific achievement for all ages, social groups such as women, children, elderly, etc.

Recognizing criteria of aham in tazahom chapter is one of the valuable topics that have not been accurately identified and verified so far. In this article, attention has been paid to one of the criteria of preference in the recognition of aham, the origin and source of which is the consideration and assertions of the holy law; That is, the priorities of those who use Sharia'h texts from the perspective of preference. In a descriptive and analytical research, after stating the proof of the rule of aham and mohem( the matter which is important) the priority of determination over takheer (adopting either one) in possible mohem, the method of reconciling some conflicting traditions in determining the mohem is mentioned, and finally in the conflict between some of the rulings according to the verses and traditions showing preference as a definite or possible morajah (prioritizing reasons) of aham, the position of concrete and practical criteria such as strengthening the foundations of religion, paying attention to the quality of the motezahem (conflicting reason), confronting of the rights and getting rid of the corrupt when in doubt have been identified. Despite this, it is clear that in order to determine the definite or possible aham, the mind must observe all the criteria and their kasr and enkesars, and by considering the condition of tazahom, reach the definite or probable aham.

The mosbet principle is an usuli debate with many functions, which most of the late usulists have raised in the considerations of the principle of estes'hab, and they have disagreed about its validity. mostashab can have non-Shari'ah (rational or normal) requirements with it, which proving  each of these external matters depends on the validity of the mosbet principle. The opposing point of view of the validity of mosbet principle ​​is that only direct Shari'ah matters can apply to mostahab.Usulists do not even agree with each other in defining the mosbet principle; Therefore, before any discussion about the validity of the mosbet principle, it is necessary to define its conceptual limits precisely and after verifying the most important definitions in this field, a comprehensive definition of the said principle should be provided. Using the analytical method, this research achieves these findings that firstly, along with rational and normal media, accidental media can also be included among the mosbets of mostashab; Secondly, in the process of the mosbet principle, in addition to the subject, mostas'hab can be a ruling, both taklifi and vaz'iee; Thirdly, the application of the mosbet principle is basically not exclusive to estes'hab, and this principle can apply to other non-verbal principles as well.