نشریه فقه اهل بیت
پیاپی 70-71 (تابستان و پاییز 1391)

Assuming political guardianship for jurisprudents, this article provides two jurisprudential solutions to resolve the conflict between religious authority and leadership in taqlid [imitation] arena. First solution which is based on reasoning through literal reasons in the field of taqlid and judgment by intellect and second solution which is based on reasoning through a rule in Islamic jurisprudence called "tazahom [conflict] and tarattob [succession] both conclude that whenever the most knowledgeable religious authority in not qualified for leadership while the one who is the leader is not the most knowledgeable, it is preferred to do taqlid of [imitate] the religious authority who is the leader.

This article tries to examine three problems concerning the revival of barren lands. Using four groups of traditions, the author first proves that barren lands naturally belong to infallible Imam (A). Then he examines how barren lands can be owned after being revived. Having examined four groups of traditions, he concludes that all lands absolutely remain in Imam's (A) ownership and the one who posseses the land should pay ojrat al-mesl [a rent for a similar land] if no specific rent has been determined by Imam for the land. Shiites however are exempted from this ruling. Third issue discussed by the author is that if someone revives a land and then leaves it and it becomes barren again if he has abandoned the land a second person who revives it again will have priority over the previous reviver. But if the first reviver has not abandoned the land and has only ignored working on the land he will be more eligible to this land.

Since a clear criterion has not been mentioned for liability in religious scriptures and as a result jurisprudents and those who have written the law have only mentioned some instances of liability, problems have occurred for the courts of law. This article has been written to address the necessity of introducing a criterion to be referred to in cases that are unclear and are not mentioned in scriptures. The outcome of this study is that the criterion for liability is the one whom the crime is referred to not other criteria such as aggressive nature of the act or negligence of the perpetrator. Based on this, to consider someone liable it suffices the loss and harm be referred to him/her; whether the act has been aggressive or not and whether the perpetrator has been negligent or not. Relying upon this rule, when there are a number of causes liability should be attributed to someone whom the crime is referred to by the common sense. If the loss and harm are referred to more than one source by the common sense then each one will be liable proportionately.

"Mezaq [tendency] of jurisprudence"or" mezaq of sharia" is among new terms recently applied in and associated with reasoning area in jurisprudence. Identifying the mezaq of sharia again, this article intends to reflect its origins, applications and reseans for its authenticity. Also with a criticizing view on suggestions to remove this theoretical tool from the domain of jurisprudence or misapplications, argues that with an approach to regulate mezaq of sharia and determining bottlenecks, it can be introduced to jurisprudential principles and institutionalized.

People may attentively or inattentively make a transaction with a mentally incompetent person and hand a property to him/her. In this case contractive responsibility of a mentally incompetent person and its boundaries will be raised which has been covered sporadically in Islamic jurisprudence under delicate discussions. Civil law has an independent ruling over this issue. Like many other issues, the law needs to take into account the jurisprudential analyses and knowledgeable jurisprudent's opinions. Jurisprudentially examining the issue and adjusting it into the law, this article intends to find a normal solution to this issue which is driven from both sources.

The issue of "murder in bed" which is reflected in article no.630 of Islamic Punishment Law has a jurisprudential root and is specifically driven from problem no.20 of Tahrir al-Wasila by Imam Khomeini (PBUH). However, Islamic jurisprudents have different opinions in this respect. Shiite jurisprudents have two opinions in this regard: first group that includes the majority of jurisprudents believe that if a man witnesses his wife having intercourse with a stranger man he has a right to kill both his wife and the man; however, some of these jurisprudents allow this on the condition that the man is married. Second group whose prominent member is ayatollah Khooee not only say murdering both the wife and the stranger is flawed but also they forbid it. The bases for this opinion are subject to criticism and contemplation. Four Sunni schools, although they have different opinions about the details of this issue, but they collectively believe that if a man witnesses a stranger man having intercourse with his wife and kills him will not be punished if he can prove the murdered man has been a married man. However, some put forth the condition of being married and some dont and believe the husband is exempted from punishment only if the adultery is proved. About the philosophy of this ruling there are four probabilities: the husband's hurt feelings, legitimate defense of one's face, executing divine order and adulterers are subject to death. Most of jurisprudents think it is a form of legitimate defense.

The current study reviews three literal meanings of feqh and its terminological usage and how it has been developed and applied among Muslims and religious scholars during history. Finally it concludes that the first meaning for feqh is deep understanding of meanings. Following the revelation of Quran 9:122 its meaning changed to deep understanding of religion. Later in the beginning of fifth century yet another meaning became popular i.e. deep understanding of religious rules and regulations. This meaning is still common among Muslims and is the first meaning that comes to mind for the word feqh. Therefore this third meaning was not common during Imams (A) era. Thus, in Quran's verses and traditions we should not use this meaning of feqh. Finally in chapter five of this article some scientific outcomes derived from previous chapters have been stated.

This article criticizes and reviews "Haqq al-Taa" by Reza Eslami. The current article initially discusses presumptions that may be considered for haqq al-Taa so that the proposed theory can be compared to these presumptions to find out whether they are compatible or not. Elsewhere intellectual precaution reasons and consequences of haqq al-taa have been examined. Finally shortcomings of haqq al-taa theory and its negative outcomes have been covered.