فصلنامه فقه و اصول
پیاپی 100 (بهار 1394)

What is meant by ta‘līl is that if in a reason the cause of the judgment has been mentioned، the denial of the judgment can been concluded from the lack of that judgment; in such a way that from the denial of restriction (ḥaṣr)، condition، desired object، etc، the denial of the judgment is necessitated. In this article، the study of this issue is dealt with respect to the viewpoints of the proponents and opponents and a third viewpoint is presented on the basis of distinction between the generality or partiality of topic، both in the enunciated and the concept.

The inherent dignity is a Divine bounty from God to Man and since it is inherent and intrinsic in human nature، its dispossession is not possible. According to some of the noble verses of the Qur’ān، human dignity can be proved as a type of honor that denotes enjoyment of the bounty of reasoning، free will، Divine Breath، power of choice، etc. and all human beings equally enjoy it and a principle entitled Takrrīm al-Insān (Dignifying Human Being) can be used in codification of judicial laws. One of the fields of efficacy of this principle is the field of devising punishments for the crimes having non-legal (ḥadd) punishments. According to this principle، so far as the non-penal procedures have not been incapable of preserving the values، moving towards penal devices through devising and imposing punishments disproportionate to the crime، would violate human dignity and the exaggerated reliance on such experiences as public and private prevention، restraining and correcting the delinquent، etc. instead of the criteria for the conformity of crime with the punishment are not compatible with this principle and are regarded as instrumental use of criminal for achieving other goals. Some examples of the legal rulings including heresy، the restrictions concerning the non-Muslim (dhimmī) infidel as well as some examples of human rights including self-determination would enjoy more moderate rulings according to this principle. Restriction of using capital punishment and prevention of its open execution are among other warnings of this principle and indicates the necessity of revising some of the legal and judicial rulings.

Power of attorney (PA) contract is among the specified contracts that are widely used in society and people’s legal relations، because on one hand، people are not compelled to directly vindicate their rights and، on the other hand، the above-mentioned contract is of high importance in lawsuits and restoring the victim’s rights in courts of law. Through signing contract of PA، the attorney and the client reciprocate obligation and right and hold judicial relations and mutual commitments and responsibilities. Among these commitments is the observance of the client’s expediency. Since this commitment overshadows other commitments of the attorney and is somehow regarded as the foundation of all his commitments، it is of special importance. Despite the assertion on the above-mentioned commitment in article 667 of the civil law، the legal sanction for its violation in various obligations is ambiguous. Silence of the law، weakness of the writings، and being involved in this issue has made us search for an answer whose summary is as follows: the legal actions that have been carried out without observing the client’s expediency is regarded as effective – except for the obligation in which the client has connived with the party of contract – although، in case of availability of options، the clients can remove loss from themselves.

Qasāma is one of the proofs for homicide، which will be reliable in case of the existence of lawth (strong suspicion). There are two major views on how it is implemented. In sum، the first view deems as necessary swearing fifty oaths by fifty people; however the second view deems as sufficient swearing of fifty oaths by the claimant for proving the crime. The second view is a generally accepted fatwā and the first one is a rare fatwā theme. According to article 248 of the Islamic penal code passed in 1370 sh/1991، the generally accepted view dominated; however، in 1380-81 sh/2001-2002 upon the amelioration of the Islamic penal code، this rule was annulled by the fatwa of the Supreme Leader، and for proving homicide، the legislator deemed as necessary the swearing oaths by fifty people without repeating the oath. In the penal code passed in 1390 sh/2011، this same basis dominates. It is attempted in this article to examine the legal and judicial basis of article 377 of the ameliorated law. The writer believes that، with respect to some proofs existing in the evidences، even if the second view has strong foundations، qasāma is not a merely devotional institution; rather، the legislator has intended it in terms of intermediation and، if necessary، he can change its quality.

One of the legal principles for the disbelievers who convert to Islam is the principle of jubb. This principle is the basis of Islamic mercy and clemency for denial of punishment of the disbelievers who welcome Islam. On the other hand، general amnesty is an action taken in order to efface some aspects of the criminal conducts of a perpetrator of crime from the law’s memory. This amnesty is most often granted to those groups of people who perpetrate political crimes. Although these two categories enjoy different types of theoretical literature، there are some similarities between their concepts. Thus، with a descriptive-analytical method and aiming at making a comparison and doing a comparative study of the principle of jubb and general amnesty from various legal and judicial aspects، we have undertaken to study them in three main fields of definitions and concepts، evidences، and dominion. The findings of this research indicate that from the viewpoint of the four logical types، the relation between these two is of “partial inclusion” type.

The brothers and sisters of the deceased person can، under certain conditions، cause partial exclusion or exclusion from restoration of inheritance for the deceased person’s mother. The issue of the siblings’ exclusion of mother from inheritance in Imāmī jurisprudence is attributed to the noble āya eleven of the blessed sūrat al-Nisā’ and is maintained in the Iranian statutory law according to clause B of article 892 of civil law. Meanwhile، given the non-assertion of the above documents concerning the exclusion or non-exclusion of pregnancy، the legally and judicially controversial question arises as to whether pregnancy can، like brother or sister، exclude mother from inheritance. Through argumentative examination of the subject with descriptive-analytical method in Imāmī jurisprudence and Iranian law and by presenting and criticizing the provided evidences for both possibilities of exclusion and non-exclusion of pregnancy concerning mother، the present research has concluded that the view of non-exclusion of pregnancy concerning mother seems more solid، particularly with respect to the uncertainty about the verity of the title of brother or sister (ikhwa) to pregnancy and in regard to the principle of non-exclusion in Imāmī jurisprudence as well as the Iranian law.

Although ‘Allāma Ḥillī and Shaykh Anṣārī have pointed out the feature of confirmation (iḥrāz) in some of the practical principles، its refinement has been one of Mīrzā-yi Nā’īnī’s initiatives. He divided the practical principles into “confirming and non-confirming. The confirming principle determines the practical duty of the religiously ccountable (mukallaf) in view of reality، such as: istiṣḥāb (presumption of continuity)، principle of soundness (ṣiḥḥat)، and the principle of leisure and violation (firāq wa tajāwuz); however، if reality is not taken into consideration، it is called “non-confirming principle، such as: barā’at (disavowal) and takhyīr (choosing between two or more alternatives). Concerning these principles، Muḥaqqiq Nā’īnī maintains that the principle that represents something dubious as real is tanzīlī (substituted) principle، such as principality of ritual purification (ṭaḥāra) and principality of lawfulness; and when، it maintains doubt، and probability as certitude، like istiṣḥāb، it would be regarded as confirming principle. There are many objections posed against the views of Muḥaqqiq Nā’īnī، among which are the objections by Muḥaqqiq Khū’ī and ‘Allāma Shahīd Ṣadr. The latter does not accept Nā’īnī’s confirming principle and uses this term in another sense. Knowing the distinction between the principles and authority of denotations (amārāt) as the difference in their provision criteria، he interprets the confirming principle as such. The most important outcome of the confirming principle is its precedence over non-confirming principle in contradictions. Stating the distinction between the principles and denotations from the viewpoint of Nā’īnī and Ṣadr، the writer seeks to elucidate the nature of “confirming principle” and its outcome from the viewpoints of these two scholars.

Among the most important differences between the Sunnīs and Shī‘as is the legal obligation of the circumambulation called ṭawāf al-nisā’ in the end of the Ḥajj pilgrimage and the consequences of its non-performance. Contrary to the Shī‘as، the Sunnīs’ jurisprudence the have opined the necessity of another circumambulation called ṭawāf al-widā‘ (farewell circumambulation) by putting aside ṭawāf al-nisā’. The present writing discusses the role of ṭawāf ql-widā‘ in the lawfulness of (intimacy with) women as a substitute to ṭawāf al-nisā’ from the viewpoint of Imāmī jurisprudence. Searching into the legal sources and enumeration of some instances of the sunna and some other legal rules and evidences that are able to prove the sameness of these two circumstances and/or at least the sufficiency of the Sunnīs’ practice has been dealt with mostly in this research. The reliable ḥadīth of Isḥāq b. ‘Ammār، sīra of the religionists، the non- mpressionability of the soundness and the successive order of the effects of ṭawāf al-nisā from its name and title، and the principle of obligation (ilzām) are among the instances the writer has dealt with.

The idea that the distinction of sciences has to be based on topics is facing serious criticisms and objections، since both arguments of the followers of this approach are violable and the history of science is replete with many examples that do not fit into this tight framework. This issue prompted some scholars such as Muḥaqqiq Khurāsānī to move toward distinction based on objective. This approach، however، faced some problems and came under criticisms. Therefore، the contemporary legal theorists proposed other patterns; some have undertaken to present a new explanation of the quiddity of the subject of science، some have brought up the similitude of propositions and finally most of them have given up exclusivism and tended toward integrative patterns، not regarding as sufficient reliance on just topic or just ultimate objective and unanimously insisting that the obligation for the distinction of sciences to be in terms of the distinction of topics is an unobligated commitment and there is no incentive for this commitment. Little by little، they inclined toward the theory that all the affairs involved in conceptual unity that are valid in rational integration have to be included and one of them alone would not be sufficient; therefore، the axis of unity and multiplicity is the validity resulting from observing the rational expediencies and the aspects involved in them and not the personal codified objective، nor the topic، predicate، desired object (ghāyat)، etc. (alone).