Note: One of the challenges in solving newly emerging jurisprudential issues is the possibility or impossibility of adhering to the applications and generalities of Shari’ah. The question is whether it is possible to consider the terms and generalities issued during the time of Shari’ah to refer to new instances of occurrence or not? To answer this question, we talked with Hujjat al-Islam wal-Muslimin Mustafa Durry, a high-level professor at Qum seminary. Writing numerous books in the field of emerging jurisprudence, such as the seven-volume collection of “Urban Management Jurisprudence” and “Fiqh al-Ta’am” and numerous articles related to emerging issues, along with his responsibility in the contemporary jurisprudence research institute, make him one of the best people to discuss this issue. The details of the conversation with the vice-chairman of the Contemporary Jurisprudence Research Institute are as follows:

Considering that the words of reason are usually subjective and do not apply to the general public, how can the words issued by the Shari’ah be applied to the general public?

Mr. Durry: Logically, they have both practical and verbal expressions.  Rationally, if they say something, it is often mean. For instance, you tell me that I am allowed to go out of the door and I say please. This does not mean that it is okay to break the door! A Shari’ah instance of this is that if a dog hunts an animal, it is halal; But this does not mean that the place where the animal bitten is also clean, because the absence of problems is only in terms of hunting, not the impurity and purity of the place of the bite.

For instance, if a question is asked whether it is possible to marry a cousin and the answer is: yes, it is possible to marry, this does not mean that it is possible to marry without a concubine, but there is no problem, in terms of the fact that these two are not forbidden forever.

Do we have a case that was not verbal?  But is it taken into account?

Mr. Durry: Yes, “Ahlle Allah al-Bay’ wa Harrame al-Riba”.  Ahlle Allah al-Bay’ in contrast to Harrame al-Riba, that is, sale is not like usury, and this verse continues.  How do the jurists use this verse?  Whenever we have doubts about the solution of something, we say Ahlle Allah al-Bay’. While this verse was merely an expression of the solution of sale against the sanctity of al-riba; But its application was used.

You see, in the case of the holy Shari’ah, we assume that the statements of the Shari’ah are the same as the custom and the Shari’ah does not use a method different from the customary method.  (Because if the Shari’ah speaks in a different way, it does not apply to that “statement” and therefore it becomes an instance of the ugliness of the qubhe iqab bila bayan) Therefore, the Shari’ah uses the customary method. Intellectually, most of their words are honorable. For instance, when we say go, come, do this and… all this is in the sense that we are talking about it; So, it is said that the literal meaning has the same meaning as the emergence of being in a position. But the application of authority is an additional matter that is in the capacity of expressing all contracts and conditions and includes all aspects and therefore has merit.  Applying for status is a strange thing and rarely happens. An instance of that is if I say in the lesson that I want to tell you all the areas of Shari’ah unconditionally. This is a rare incident and it rarely happens that our conversations are not respectful. (The proof is that the application of a position requires the verification of being in a separate position).

If I want to answer to the question in one sentence, I must say: because everyone’s method is rational, and the Shari’ah has no method of understanding other than the rational method, we believe in the authenticity of the Shari’ah in all its rulings.  Some people think that we are saying that it is an honor; It means that the use of legal words is limited, which must be said, is the use of rational words limited?

In the Book of al-Salah, the jurists insisted on the lqamat al-Salah in the case of doubts about its particularity and conditionality. This is despite the fact that the lqamat al-Salah oversees the obligation of the prayer and has nothing to do with the parts and conditions of the prayer. All this is subjective.

I would like to say that wherever you think that you have a conditional application, it does not include a single case. In fact, what the word carries and is the meaning of our speech, which includes it, and it is not possible to apply the will, is called “haythi”.

When he says “Aqimu al-Salah wa Atu al-Zakah”, he does not care what are its components?

My opinion is that the jurists have not paid attention to the fact that the essence of words is their quality.

Perhaps it is because of the clarity of the matter that the jurists did not pay attention to it.

Mr. Durry: You are justifying the words of jurists in an unconventional way. For instance, in the verse of “ufu bil uqud”, the obligation of faithfulness to the contract is stated, while the jurists have also used its application for cases of doubt in the legitimacy of the contract.

Do the religious texts refer to the future times or are they historical and related to the time and place conditions of its era?

Mr. Durry: There are two ways of speaking. There is a time when the Holy Shari’ah determines a title for which created a new example in its time, it was a general title that now found a new example, like a compound that had an animal example at that time; But at the present time, cars, motorbikes and bicycles are examples of it.

There is a time when the Shari’ah expresses expediency and corruption, in the sense that expediency and corruption, which once had precedents, have now found new precedents. I say that in both of these, we have no choice but to adhere to the purposes of Shari’ah; For example, Shari’ah says that one of the honors of a man is to have a good composition. At that time, you could kill a few people by a horse; But now you can destroy a city with a bomb. In these cases, it is clear that the new examples do not change the expediency and corruption.

You may say, where can such a thing be said? We say that such a thing cannot be proven except by adhering to the purposes of Shari’ah. Even if you say that we don’t accept the purposes of the Shari’ah as a reason (because the purposes of the Shari’ah are discussed as a reason for Hajj and Umreh in such a way that if we reach an obligatory benefit, its ruling is obligatory, and if we reach an obligatory evil, its ruling will be sacred), you cannot give up the purposes of Shari’ah in cases of violation of texts and understanding the application of texts in relation to new examples.

What is the obstacle to include an item and then separate that item with another reason or separate provision or cancellation? For instance, in the case of weapons of mass destruction, we insist on the arguments of prohibiting the killing of women, children, and the elderly, and we assign its permission.  What do you need to use purposes in these cases?

Mr. Durry: lts a wrong method. It is wrong to say that the application includes those new cases and then assign the generality of the prohibition with the help of that application; Because this definition is incomplete in expression and does not include it. What you say is abrogation; It means that there was a general reason and hence its generality is messed up. I say that based on the commitment to the intentions of the Shari’ah, the Shariah cannot be committed to this word even for a second.

You see, Maqasid al-Shari’ah has ways that have been discovered, such as Sirah uqala and Hukmeh Aql and other texts that are relevant. But I say that even for a second, the Shari’ah cannot commit to this issue.

As a result, “Min Ribat Al-Khayl” in the noble verse does not include weapons of mass destruction, except in two cases: one is when the reason is stated, and second is when this title is violated with the help of the purposes of Shari’ah.

This opinion of yours that the meaning must be verified as an expression depends on the positiveness of the meaning;  However, if the application is negative and there is no expression of stipulation or no expression of non-stipulation, there is no need to confirm the status.

Mr. Durry: Not at all. It does not make a difference whether the reference is non-existent or existential, in the fact that it is necessary to be verified in the capacity of expression. Individuals like Ayatullah Sistani do not accept even in the Hadiths that the application in the same time of the narration is also concluded with respect to the conventional assumptions of the same time, let alone the new instances of our time.

I would like to ask, in what way do you believe that the verdict cannot be extended to other people? Your statement is that the Shari’ah stated this ruling and saw some characteristics in it and gave this ruling regarding those characteristics?  In the same way, when he talks about an instance in the present tense, he is not referring to its future assumptions.

In other words, we have two issues: one is to see what are the prerequisites and conditions of application, and one is to see what the application itself is. The condition of the flow of application is in the position of expression and it must also be existential. However, what is the reference itself, whether it is the negation of the adverb or the absence of the adverb, does not make a difference in its condition. The one who says: the application is non-existent, says that its condition is to be in the position of confirmation, and the one who considers the application to be existential says: its condition is to be in the position of expression.

Is it possible to verify the generality of the ruling in the Hadiths, or must it be based on the circumstances of the questioner or at least those present at the time of issuance?

Mr. Durry: In didactic traditions, if a title is raised and we give the possibility of a ruling difference between new examples and conventional examples, we cannot stick to its application. Similarly, in lfta’ narrations, because it has a more limited example. In lfta’ narrations, even the conventional examples of that time are not considered; But only the question is considered.

Do narrations such as “Halal Muhammad is halal until the Day of Resurrection” mean the existence of general reformation and reformation of the general in the hadiths?

Mr. Durry: No, it’s not. Every ruling has a subject. For instance, it is not correct to order women to perform Istbra’, or forbidding an 80-year-old woman to go to the mosque because of menstruation;  Because, basically, the issue of menstruation and menstruation is not realized in them. These hadiths say that this ruling remains with this subject forever, but the word is that in many cases, the subject of the ruling is lost. For instance, it is claimed that one of the limitations of the issue is the temporal and spatial conditions of the issuance of text, which is no longer fulfilled in the present time, and therefore the negation of the ruling in the present time is not a contradiction to these traditions; Rather, those former rulings still remain with their former subject; But at the present time, it is claimed that the issues have fundamentally changed.

This statement of yours is contrary to what it seems, it is meant from the narration of the principle of Tashri’, that the Tashri’ that was made until the Day of Judgment is the same and will not be abrogated. Yes, the topic of the verdict may change, and this does not mean the cancellation of the verdict and legislation.

Mr. Durry: Does the Prophet (s) express the ruling without a subject? No, the verdict definitely has a theme and the theme may have changed. The neo-thinkers do not say that the ruling should be changed with the same old issue; Rather, they claim that the subject of the ruling has been changed. For instance, the narration reads: “Wa Qatilu Al-Lathin Yalonkam Min Al-Kuffar” means kill whoever is closest to you in battle.  Why are we fighting against America?  Armenia is closer to us. Why don’t we fight them according to this verse? At that time, because the wars were face-to-face, the closer it was, the more dangerous it was; But there is no risk of closeness and distance; but to military power. Well, now the verse has been abrogated? No, in duel battles you still have to hit the nearest enemy. The subject of this verse is hand-to-hand wars and it has not been written down yet. But only the topic has changed.

I say that “the halal of Muhammad is halal until the Day of Judgment” does not have any restrictions and is true, but with the unity of the subject.

This article is a part of the file “New Evidence in Contemporary Jurisprudence” and will be prepared and published in collaboration with Ijtihad Network.