فصلنامه جستارهای فقهی و اصولی
سال نهم شماره 2 (پیاپی 31، تابستان 1402)

Codification or Discovery of the Ruling System and its Jurisprudential ConsequencesSome scholars believe that different political, economic, etc. systems should be inferred like a Sharʻī (legal) ruling, on the other hand, some consider the inference of the system to be out of the realm of Sharʻ and a vague matter. At the beginning of this study, a distinction is made between several things: firstly, between a descriptive review and a recommended review; secondly, between the inference of all the fixed components of the system in a specific structure and the inference of only the fixed dimensions of the system and the determination of its variable dimensions according to various conditions; thirdly, between Inferring the system and codification the system. Then it is said that from a descriptive point of view, common jurisprudence was not and is not in charge of inferring the system, and from a recommendation point of view, no valid reason has been presented so far that jurisprudence should basically addresses the inference of the system. Because the system has variable dimensions. From a recommendation point of view, it can be said that jurisprudence must infer the fixed dimensions of the system, and after that a system should be codified based on the different characteristics of each society, not to infer a fixed system for all societies and for all times with different characteristics. In conclusion of this study, some differences and jurisprudential consequences between systematization and inference of system have been explained.

The basics of the validity of Khabar al-Wāḥid (tradition narrated by a single source) have been discussed by contemporary Uṣūlī scholars in detail during the discussion of the subject of Qaṭʻ and Ḍann (certitude and presumption) in Uṣūlī books, and various criteria have been presented for accepting the narrations of Āḥād, such as the existence of definite evidence, the reliability of the narrators of the chain transmission, and assurance of narration issuance. Meanwhile, the theory of "agreement with the spirit of the Qurʼān and the Sunnah" is one of the emerging theories that tries to express a criterion for the validity of Khabar al-Wāḥid and to attributes its issuance and non-issuance to the holy infallibles (ʻA). Āyatollāhs Martyr Sayyid al-Ṣadr and al-Sīstānī are among those who support this theory. Of course, Martyr Sayyid al-Ṣadr has accepted the validity of Khabar al-Thiqah, along with it, raised the possibility of the completeness of this theory, but Āyatollāh al-Sīstānī has not accepted the validity of Khabar al-Thiqah and considers his only criterion in the validity of Khabar al-Wāḥid to be its spiritual agreement with the Qurʼān and the Sunnah. His main reason for proving the mentioned theory is the Mutawātir narrations (narrations narrated by several sources), which the contents of them is to obtain the Khabar in case of agreement with the Qurʼān and the Sunnah, and to reject it if it is contrary to the Qurʼān and the Sunnah. Since there is no correct and comprehensive explanation and analysis of this theory and its foundations in books and articles, even from the theory's cofounders, the present study, with the aim of explaining the contents of the theory and analyzing the limits and gaps of the evidence and in the shadow of describing and analyzing the Uṣūlī and narrative propositions and by collecting library data and by categorizing the narratives considered by the theory's supporters and by examining the way of their implication and explaining its various aspects, has tried to provide a correct explanation and analysis of the theory and to answer possible problems with the theory.

Based on the propounded consensus, the authority of determining a judge has been given to the claimant, but on the other hand, in addition to not implementing this view in the current judicial system, some other jurists have given this importance authority to the ruler and the government. Now, the question that the current study has addressed is the analysis of the issue of the authority of determining a judge, in the sense that as a Ḥukm Awwalī and Thānawī (primary and secondary ruling) and also in the current judicial system, Is the claimant responsible for determining the judge or the government? In a research that was carried out by a library and analytical method, the widely known viewpoint has been explained along with three reasons. But due to the deficiency in these reasons and the existence of stronger reasons against it such as verses of the Holy Qurʼān and traditions, the Ḥukm Awwalī and Thānawī has been given the responsibility of the authority of determining a judge to the government, while various justifications have also been explained for the opinion of those who claim this authority to the claimant.

The principle of Lā Ḍararr in environmental jurisprudence, focusing on the Qurʼānīc verses that indicate the principle of "Lā Ḥaraj" and the narration related to Samarat bin Jundab which was narrated from the Prophet of Islam, has addressed the instability of current environmental law foundations. By a descriptive-analytical method, this study examines the five jurisprudential concepts and meanings of Lā Ḍararr in comparison with the basics of environmental law. The promoters of these foundations believe that by grounding humans in environmental rights, mankind can experience a healthier and safer life and prevent its environmental crisis with just legislation. But, the Islamic rethinking about the theories of environmental laws indicates that the true acceptance Lā Ḍararr principle provides a different view of the interaction between humans and the surrounding environment. Human beings generally should reduce their material and emotional desires, because Tazāḥum (conflict) and Iḍrār (damage) are the natural result of an extravagant society, so a detailed reference to the sources of Islamic jurisprudence corrects the fundamentals raised in environmental law. Also, the inconsistency of the premises and results and the lack of comprehensive investigation of all aspects related to the environment has caused thought-provoking criticisms on these foundations and theories.

The concern of Islamic jurisprudence to save and treat human lives is not unknown to anyone, but the extent of concern of jurisprudence to save and treat animals and the permissibility of spending Beyt al-Māl (public treasury) in this regard is questionable. Using a descriptive-analytical method, this study by virtue of jurisprudence sources, referring to written documents, and based on valid and jurisprudential evidence from the perspective of the two major sects (of Shīʻa and Sunnī)has studied saving the life of an animal, the realm of rescue, and the use of public treasury in preserving, treating, and rescuing animals. Studies showed that it is obligatory to save the life of a respectable animal. Agreed certitude in the realm of animal rescue, includes domestic animals with financial value and the animal that is at the disposal of humans. But in the current era, not saving most of the wild animals which are used for scientific and research purposes, for the preservation of natural wildlife, or for other legal intended interests, is considered a waste of property. Even the impurity of disrespectful animals does not prevent them from being saved. Also, it is obligatory to preserve endangered animals and it is forbidden to slaughter them even for eating. Establishment of animal protection institutions, medical services for animals, combating animal abuse, training and maintenance of rescue animals, etc. are allowed to spent from the public treasury expenditures, but in some cases, they must be spent from the public treasury.

Doping in its various forms is one of the new challenges in modern human life and society. It can be studied from various interdisciplinary and multidisciplinary perspectives such as sports medicine, social ethics, medical law, sports law, social jurisprudence and criminal law. The jurisprudential position of this complex issue can also be studied from various conceptual, thematic and normative perspectives. This study first, focusing on several definitions, especially the definition of the Medical Commission of the International Doping Committee, discusses what doping is, and then pays attention to its common examples that can be discussed from a jurisprudential point of view. By using a new research design and conceptualization, that is by focusing on an existing harm in doping ("Ḍararr"), the authors in this study try to raise new questions that will systematize and clarify the jurisprudential-legal understanding of the doping issue. In this study, focusing on the harmful nature of doping, we will seek an answer to the question of how to discover its obligatory ruling based on jurisprudential sources and reasons, such as the Qurʼānīc verses about Ḍararr (harm), and also based on the Lā Ḍararr principle. The method of this study is the analytical-conceptual that Fuqahā, jurists and legal philosophers have used for centuries in the field of jurisprudence, principles and philosophy of law. In this method, the clarity, accuracy and transparency of the concepts and issues have a fundamental and undeniable role, and this is why the faqīh or jurist tries as much as possible to discover the nature of the problem and its answer, and this is why the faqīh or jurist, to find the nature of the problem and its answer as much as possible, tries to use the tools of analysis, analysis and minimization of ideas and thoughts. The following text is tied to the use of existing textual and library sources - mainly Shia jurisprudence sources and sources related to sports law. So far, no independent book or article has been written about this topic, i.e. the connection between the Lā Ḍararr principle and doping. The innovation of this research in posing new questions, branches and divisions (such as exclusivity or inclusion of Ḍararr, knowledge and ignorance of the Ḍararr of doping, specific-particular Ḍararr of doping, amount of Ḍararr and the issue of non-existential affairs) as well as using the conceptual-analytical capacities of the Lā Ḍararr principle in understanding the the emerging issue of doping. Most of the examples, branches and arguments of this study do not have a history in legal articles and books about doping and are new, therefore, it can be an example for the output and ramification of one science (the Principle of jurisprudence) for another science (sports law). In addition, our claim is that the various dimensions and angles of this study can be helpful in explaining the jurisprudence of doping.

Based on the propounded consensus, the authority of determining a judge has been given to the claimant, but on the other hand, in addition to not implementing this view in the current judicial system, some other jurists have given this importance authority to the ruler and the government. Now, the question that the current study has addressed is the analysis of the issue of the authority of determining a judge, in the sense that as a Ḥukm Awwalī and Thānawī (primary and secondary ruling) and also in the current judicial system, Is the claimant responsible for determining the judge or the government? In a research that was carried out by a library and analytical method, the widely known viewpoint has been explained along with three reasons. But due to the deficiency in these reasons and the existence of stronger reasons against it such as verses of the Holy Qurʼān and traditions, the Ḥukm Awwalī and Thānawī has been given the responsibility of the authority of determining a judge to the government, while various justifications have also been explained for the opinion of those who claim this authority to the claimant.