چکیده:
Inconsistency occurs sometimes between two indications, sometimes between two principles, and still sometimes other between an indication and a principle. In discussions about juridical principles, we have repeatedly heard that if there is some inconsistency between “indication” and “practical principle”, this is a primary inconsistency; since when there is “indication”, we have nothing to do with the principle. The reason is that the subject because of which practical principle is executed is “doubt” and when there is some “indication”, there is no room for doubt and so no need to referring to practical principles. Concerning relation between the rule Dra’ and Presumption of Continuity (Istishab), however, it should be noted that jurists are of no fixed opinion in this regard. There are three opinions concerning this matter: 1- the rule of Dra’ is prior to Presumption of Continuity; 2- Presumption of Continuity is prior to the rule of Dra’; 3- doubt about this matter. After hard studies and research, it should be said: the rule of Dra’ is enforced only concerning Hudud and Ta’zirat (Islamic Punishments) and that only at a reasonable level. In this case, it is prior to Presumption of Continuity. Beyond this reasonable level and concerning Qisas (retaliation) and Diyat (blood-moneys), however, Presumption of Continuity is prior to the rule of Dra’.
خلاصه ماشینی:
In Usul (principles of jurisprudence) discussions, we have frequently heard: if an "indicator" and a "practical principle" conflict, this is a primary conflict; because in the presence of an indicator, the turn does not come to the principle; because the subject of implementing a practical principle is doubt, and in the presence of an ijtihadi evidence, no doubt remains that would require recourse to practical principles; however, in explaining the relationship between the rule of Dar'a and Istishab, it must be said: jurists do not have a fixed position regarding the application of Istishab in the presence of the rule of Dar'a.
A question regarding the drinking of a liquid suspected to be wine has been posed to some jurists in this manner: Suppose a person knows that there is wine inside a container, but for some time, despite having doubt as to whether the intoxicating liquid has turned into vinegar or not, they consume it with the suspicion that it has turned into vinegar; in this case, is the principle of Istishab applicable, or is the rule of Dar'a applied, resulting in the cancellation of the Hadd for intoxication?
With consideration to what has been said and with the extensive investigation we have conducted in this issue, it has been concluded that jurists do not have a fixed position regarding the application of Istishab despite the rule of Dar'a, and there is a very large amount of disagreement on the matter; however, based on the evidence available at this stage, it can be expressed: The application of practical principles such as Istishab will only be possible if there is no valid evidence regarding the ruling of the subject in question; otherwise, in the presence of definitive evidence or reliable presumptive evidence, the turn does not come to the practical principle (Khoei, 1422 AH, Vol. 1, p.
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