فصلنامه جستارهای فقهی و اصولی
سال نهم شماره 3 (پیاپی 32، پاییز 1402)

One of the practical and at the same time very complex issues in the science of Principles of Jurisprudence is the general (ʻām) and specific (khāṣ), which its deep effects are well visible in the science of jurisprudence (fiqh) and law (ḥuqūq). With the development and expansion of the science of Principles of Jurisprudence, various views and opinions have emerged on this issue, one of which is the division of individualizers (mukhaṣiṣāt) into connected and disconnected. Of course, stating separate rulings for each one in some cases, such as the discussion of “extension of brevity,” has become special. A descriptive-analytical method was used in this study. In addition to trying to simplify the content and avoiding ambiguous issues, the author has tried to first present some of the views of the Uṣūlī scholars regarding the disconnected individualizer (mukhaṣiṣ al-munfaṣil), then relying on the intellectuals’ attitude stated the problems of the scholars’ theories and proved that their words in some cases are uncoordinated with the way of intellectuals, finally he concluded that there is no difference between connected and disconnected individualizer and all disconnected individualizers, whether they are in the law makers’ (shāriʻ) words or those are made by the legislator will return to the connected individualizer.

One of the divisions proposed in connection with the narration is its division into iftā’ī and ta’līmī. Iftā’ī narration refers to the narration that only expresses the current duty of the questioner. On the other hand, there are ta’līmī traditions that express the general ruling for the purpose of training jurists (fuqahā) and master jurists (mujtahidīn). One of the most important issues regarding this division is to provide characteristics that can be used to distinguish between taʻlīmī and iftā’ī narratives. By using the descriptive-analytical method and through sampling in the book Tahdhīb al-Aḥkām of Shaykh al-Ṭūsī, this study has tried to present the most important characteristics of knowing these two categories of narrations. This study has concluded that the four main characteristics of the narrator’s attributes, the conditions of the time of issuing the narration, the content of the narration, and the use of the ta’līm style, are the most important characteristics for understanding ta’līmī narrations. It is worth noting that all these characteristics are used as a witness for being ta’līmī and it is necessary for a person to be sure of these things in order to be able to apply the rulings of ta’līmī narrations.

Before the appearance of the Akhbārī school of thought, comparative jurisprudence in its most advanced form existed in Imāmīyyah jurisprudence. That is, quoting the sayings and pieces of evidence of different schools of jurisprudence and criticizing them based on the foundations of each school of thought existed in Shī’ah jurisprudence, and many benefits have been used from it in jurisprudence. But after the appearance and rise of the Akhbārī school of thought, we are faced with the reduction of the presence of comparative jurisprudence in the Imāmīyyah jurisprudential space. It seems that Akhbārī thought prepared the conditions for this reduction. There were two important things that we tried to examine in this study. First, we examined the status of comparative jurisprudence before and afterwards, the Akhbārī school of thought and then, we confirmed the weakening of that and its use after the Akhbārī school of thought. Second, we examined the opinions of Akhbārīs and concluded that the Akhbārīs by undermining the foundations of comparative jurisprudence, as one of the influential fields on the one hand, and ignoring the sayings and pieces of evidence of Sunnīs and comparative studies on the other hand, caused the foundations of this jurisprudence to weaken and eventually its weak presence in jurisprudence. Of course, the main claim is not that the Akhbārī school of thought was the cause of the weakening of the comparative jurisprudence, but based on the evidence, it seems that this thought has had an effect in creating the groundwork for reducing the approach of the jurists to it.

Gaining familiarity with the school of thought of jurists, the cultural atmosphere of society, and their influence on women’s issues throughout history are among the prerequisites for judging the Islamic perspective on women’s issues. One of the influential schools in this field is the Akhbārī School. In this study, an attempt is made to present the effects of the views of Akhbārīs and the political atmosphere of the Safavid era in the field of women’s social participation. Also, it analyzed the scientific and practical behaviour of the Akhbārīs of the Safavid era on women’s confinement at home and examined their jurisprudential views on the prohibition of women’s social presence and encouraging them to stay at home. The issue of women’s participation and banning them from leaving the house was not limited or prohibited in this way before the emergence of Akhbārīs. Akhbārīs, especially Sheikh Ḥurr al-ʻĀmilī, have played a significant role in creating this restriction through fatwās and traditions that are sometimes incorrect. The preference (Istiḥbāb) of keeping women at home, the prohibition (ḥurmat) of seeing non-maḥrams, the unwillingness (kirāhat) to greet women, the unwillingness (kirāhat) to leave the house with the husband’s permission, the preference (istiḥbāb) of women’s spinning, and similar fatwas have affected the restriction of women’s presence and lack of social participation. It should be noted that before Akhbārīs, such chapters and fatwas about the limitations of women’s social presence did not exist or were not so strong in the earlier books.

One of the principles and rules that some scholars, especially jurists, use in the process of inference of scriptural (textual) matters is the principle of preference of sense (ḥis) in Muhtamal al-Ḥis (“what is possible to sense”) and Muhtamal al-Ḥadas (“what is possible to guess”(, or the principality of sense. According to this opinion, in circulation between sensual of conjectural of a matter, where validity is due to the sensibility of the matter, not its conjecture, the side of sense is preferred. Based on that, the effects of sensibility are arranged on that matter and become bound to its necessities. Those who believe in the validity of this principle rely on evidence such as the intellectuals’ attitude, apparent state of affairs, the apparent of the word within the authenticity of the narrator, and also ignoring the doubt. On the other hand, some scholars reject this principle and consider it invalid and unsupported by reason. This basic-applied study used the book-reading method and references to some works. By describing and analyzing the evidence of both sides in accepting and not accepting this principle in a detailed manner, and by presenting the most famous applications of this principle in the eyes of those who believe in it, the writer comes to the conclusion that the evidence based on this principle is incomplete, this preference is unsupported by valid reason, and the opinion of the invalidity of that is closer to reality.

The weakening (wahn) of religion is one of the topics that are found in many basic issues and evidence of contemporary fatwās so the prohibition of weakening (wahn) the religion can be mentioned as a principle of jurisprudence. However due to the lack of theoretical discussions, the dimensions of this principle have not been properly explained, the criteria of weakening have not been determined, and there are ambiguities in this principle. This has caused the necessary conditions for the disciplined use of weakening the religion not to be provided in the process of jurisprudential inference, or the anxiety and worry to appear in the text of some fatwās. The lack of a detailed explanation of the meaning of weakness, the lack of explanation of the difference between this term and similar terms, and the lack of the typology of weakness in the religious decree (ḥukm al-sharʻī) has caused the reference to weakness in most fatwās to be limited to mourning rituals. This study aims to provide clear ideas in the field of regulation of weakness, the effect of weakness as primary and secondary, the reference for diagnosing weakness, and others, in order to make the path of reference to weakness a little smoother and reduce the concerns caused by the unregulated use of weakness.

Celebrating Norūz has long been a matter of contention for the residents of Iran’s civilizational sphere. But after the emergence of Islam, the religious decree (ḥukm) of celebrating Norūz has always been debated among scholars and especially jurists. What has been said about this decree so far is general rejection or general acceptance without mentioning all the possible decrees regarding this matter and determining the correct and accurate decree from these possible decrees. For the first time in this study, by stating the four possible decrees regarding Norūz and referring to the ḥadīths found in the sources of two major sects (Shī’ah and Sunnī) and the general religious rules, the exact decrees of this matter are expressed. These four rulings are; Norūz is a religious ‘Īd, like ‘Īd al- Fiṭr, Aḍḥā and Ghadīr, Norūz is a day on which some actions are recommended without being considered an ‘Īd, such as the first day of the month or the last day of the month, any attention to the Norūz in the aforementioned ways is reprehensible, and religion (sharʻ) does not have any opinion on any of the aforementioned forms of Norūz. Finally, in this research, the fourth opinion is strengthened.