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
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- EP ID EP183284
- DOI 10.22067/fiqh.v0i0.8312
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