Theory of Social Understanding of Statutes; Principles, Application
Journal Title: فقه و اصول - Year 2012, Vol 44, Issue 90
Abstract
The theory of Muḥammad Jawād Mughniya entitled “social understanding of statutes”, is the evolved mechanism for the refinement of the basis of a ruling (tanqīḥ-i manāṭ) in legal reasoning (ijtihād) process, which has been developed according to such principles and criteria as objectives of sharī‘a, convention, and contextual manifestation. Heeding the objectives of sharī‘a, in view of the temporal and spatial elements, creates a type of definite proportion between the subject and the ordinance and maintains a manifestation for the context of the lawmaker’s speech, which will be valid on the basis of the rational principle of the authority of manifestation. The modern conventional understanding of the subject mentioned in the context of traditions annuls the specification and provides the jurisprudent with the chance to interpret and expand the subject and manage to discover the primary ordinances about it. The theory of “social understanding of statutes” applies to that category of legal ordinances that are both devised on the basis of social interests of human beings rather than their human nature and the lack of evidence denoting the non-interpretation of statute. Thus, devotional ordinances lie outside the limits of this rule and the theory is executable in social and transactional issues within its conditions. One of the most important outcomes of this theory is that the existing statutes and traditions have the capacity to be issued for most of the new subjects, just like the primary ordinance, without falling into the maelstrom of analogy or appealing too much to the secondary topics; an outcome that, according to Shahīd Ṣadr, unravels a great complication in jurisprudence.
Authors and Affiliations
Elham Eskandari, ʿAlī Tavallāʾī
Keywords
Related Articles
- EP ID EP183284
- DOI 10.22067/fiqh.v0i0.8312
- Views 154
- Downloads 0
Reappraising the Theory of Imposing Condition for Numerous Confessions in Proving Adultery
Adultery is proved only through numerous and frequent confessions (four times) and confession to less than that would not invoke legal punishment (ḥadd). This view is widely accepted by the Imāmī jurists. Among them, how...
Interference of Punishments in Multiple Offences Deserving Legal Punishment and its Challenges
If in multiple offences deserving legal punishment (ḥadd) the perpetrated offences are similar, the punishments interfere and the person is sentenced to one legal punishment. This judgment is disputable from two perspect...
Consolidation and Completion of Imam Khomeini (ra)’s Viewpoint about Criticizing the Essential Authoritativeness of Certitude
One of the discourses that is considered as indisputable among the scholars of jurisprudential principles (uṣūl al-fiqh) and has not been debated sufficiently is the discourse concerning the essential authoritativeness (...
Typology of Taqrīr (Tacit Approval) in Jurisprudence of Schools
The Infallible’s (A.S.) taqrīr, as one of the three tradition types, is that an action is carried out in their presence, and although they can hinder it, they would adopt a position that would denote their consent. There...
Legal-Judicial Study of the Verdict on Multiple Crimes resulting from a Single Strike
In case multiple crimes are caused by a single strike, there are three different beliefs concerning the ruling on this issue. The renowned majority of jurists have deemed as necessary the payment of blood money (diya) by...