فصلنامه فقه و اصول
پیاپی 101 (تابستان 1394)

Ratification as a term common among the Imami Usulites entails that divine decree is consistently in compliance with the mujtahid’s opinion, and even in cases where the opinions of the mujtahids differ with one another, all of them are right and true and divine. This notion of ratification has been expressed in both Mu‘tazilī and Ash‘arī manners. The question now is whether Sunni Usulites believe in this ratification? To find the truth, various definitions of ratification are given, following which the meanings of verdict and ijtihād and their position and usage are explained in the eyes of the Sunni Usulites, and their branches are explored in theology, jurisprudence and principles, from the beginning until now. Then the opinions of Sunni Usulites, especially al-Jaṣṣāṣ, al-Ghazali and Ibn Arabi are widely examined. Regarding the application of Ash‘arite ideas about good and evil deeds by al-Ghazali and Ibn Arabi in their jurisprudential principles, it becomes clear that they consider divine decree as command only in the case of absolute address, and that they consider the rest not as command but as a mantaqatul-faragh within divine decree. Therefore, they do not believe in ratification as a term; but, they reject it in their books and refer to its advocates as Mu‘tazilī and Ash‘arī. However, Sunni Usulites believe in another type of ratification which is false. It seems that in order to determine the origins of ratification as a term we must study and explore the foundations and doctrines of Sunni theology.

Reputable Imami jurisprudents believe that liability for involuntary manslaughter (wergild or diyah) is incumbent upon the institution called ‘Āqilah (paternal kinship group of the criminal). From the very beginning, the verdict has faced challenges, including its conflict with the principle of individual criminal responsibility, which have prompted jurisprudents to offer various justifications so as to explain its reasons. Based on Qur’anic rules, generalities and predications and using the Jawahiri approach (fiqh al-Jawāhirī), the present article seeks to prove the belief that despite the opposition of Shaykh al-Mufīd, this idea is not founded on consensus. In addition, major famous documents pertaining to this notion are the hadiths where serious doubts exist with regard to their documentations and connotations; moreover, they stand in contrast to the Qur’anic generalities and predications and also to independent reason. The narrative or Hadith evidences which have remained undisputed and without opposition necessarily prove the liability of kinship group only in cases where the ‘Āqilah is responsible for the supervision and care of a person’s life, or is formally held accountable.

The present paper aims to refine the conditions of authority of ‘religionist conduct’ and its position among Imamī evidences of inference. The study seeks to eliminate the shortcomings existing in former principle sources through collecting and disciplining relevant fragmented discussions. The first discussion explains the conditions of authority of religionist conduct based on a comparative approach. Here, the relationship between ‘religionist conduct’ and ‘rationalist conduct’ is measured in terms of their reasoning. The second discussion, however, tends to establish the position of ‘religionist conduct’ among other types of reasoning. Here, the authors discuss the relationship between ‘religionist conduct’ and similar established threads such as ‘tradition’, ‘consensus’ and ‘subjective speculation’ (irtikāz), and examine its reasoning position. Among the achievements of this research the following can be listed: the stipulation of the legislator’s agreeing position in terms of the authority of ‘religionist conduct’ and its consideration under narrative and practical tradition (of the Infallibles), the reasoning priority of ‘religionist conduct’ as compared with ‘consensus’, the objective analysis of ‘religionist subjective speculation’ based on ‘religionist conduct’ and its superiority in terms of authority.

One of the issues raised in jurisprudence is that two reasons are terminated if they are contradictory. However, as regards the rejection of a third verdict in concomitance with those two reasons: in case of its authority a referral to generalities and predications and practical principles is not possible, while in the absence of its authority, it is possible to refer to these issues. This paper examines the foundations of authority and non-authority as to reject a third verdict, and analyzes the practical implications of either choice in jurisprudential discussions. The most important reason highlighted by those supporting the authority to reject a third verdict is the independence of implicit (subjunctive) indication from explicit (corroborative) indication in the context of authority, while those who advocate its non-authority emphasize the dependence and compliance of implicit indication with explicit one as regards authority. In this article, we find the notion of non-authority as to reject a third verdict effectively challenged and ultimately prefer the idea of authority. Indeed, this shall not be in terms of implicit indication and its independence from explicit one as proposed by most of the Usulites; instead, this is because of the shared unity of two contradictories in their rejection of a third. This last issue will be achieved only if the contradiction of two reasons is inherently essential; whereas in cases of cross-sectional contradiction, two conflicting reasons shall not be united or unanimous in their rejection of a third, and as a result, there will be authority for this rejection.

Beneficence as a principle is one of the definite jurisprudential rules and a disclaimer of civil liability of the individual in terms of the loss enforced upon others during acts of collective good. This shall necessitate that beneficence include both subjective and practical good simultaneously. As regards beneficence to an individual other, it is necessary that the act itself be wasteful or the cause be destructive; but, when the addressee is collective, neither that beneficence is by essence wasteful, nor the cause destructive. Therefore, the question is if a group of individuals suffer from a loss during the act of good, is the agent allocated a liability or not? This paper distinguishes between cases where the group is subject to beneficence as a collective whole, and those which entail submerged or alternative whole (totality). Consequently, it has been proven that it should be possible to apply the rule and disclaim the liability when the good is done to a collective mass of individuals and common good is taken into consideration. Even in that case, Kaldor-Hicks’ secular criterion was adopted in an attempt to provide a framework rule for the evaluation of common good.

The main question of the article is whether tens, hundreds or large numbers of people participating in the killing of an individual can be punished in retaliation? Is this sentence compatible with the spirit of Islam and its policy of criminal justice, or with the minimalistic interpretation in favor of the accused? The author hypothesizes and claims that the permission to retaliation against a community of people having participated in the homicide of an individual is inconsistent with the justice-seeking spirit of Islamic Penal Code; moreover, it is unjustified and at least ambivalent and open to doubts based on our understanding of an important and fundamental Qur’anic verse, 33 of Surah Isra (17:33). More importantly, a detailed evaluation of the provisions of conflicting but relevant narratives as well as the language of the verses of qişāş reveals that the sentence to retribution against more than one of the participants in a homicide (without specification) and also available to the choice of the victim’s heir is a clear example of the need to enforce the rule ‘ward off the hudūd by suspicion.’ Hence, the punishment of an individual among the community of participants in an act of homicide especially on the basis of the heirs’ choice and calculated by subtracting the blood money (with that diya being an independent punishment itself) seems to fulfill justice, retribution and the balance (similarity) between crime and punishment much greater than killing all participants for the murder of one person. It would be sufficient to notice the importance of research into this problem in light of the caution urged when it comes to questions of blood and honor: the more critique is made about those issues, the more consistent and closer to the truth become the sentences and rulings surrounding them. The present article aims to apply descriptive-analytic tools in order to criticize the very basis of the criminal sentence against participation in homicide.

The notion ‘assisting with sins’ is a rule founded upon argumentations from the Qur’an and tradition, reason and consensus, and its authority is unassailable. There is almost no dispute as regards its authority, whereas the implications of the term have always been controversial and contested among the jurists. What has been considered as important in this research is the study of the history and transformation of Shiite jurisprudential views on this issue from the beginning. For this purpose, a descriptive analytical method has been adopted based on the application of library documents. A look at the opinions of jurists demonstrates how greatly diverse they are as regards their different definitions of ‘assisting with sins’, where most of those definitions are based on conventional understanding. On how to adapt the concept of ‘assisting’ with conventional understanding, various criteria have been mentioned, mostly referring back to one criterion expressed and explained best by Sheikh Ansari, i.e. assisting with preliminaries whose benefits are exclusively ḥarām. Finally, based on a summary of the statements and theories, it can be concluded that in case of failure of conventional understanding as regards the problem, the criteria for a correct application of the common understanding must be intentionality of the assistant.

One of the most widely used rules of jurisprudence is ‘impediment removal’ often expressed by the phrase ‘when impediment is removed, the forbidden is regained.’ The application of this rule in jurisprudential matters produces important outcomes since impediment in those matters can prevent the penetration (validity) of the primary ruling, and as a result, the secondary ruling would be issued and actualized. The application of the impediment removal rule in this context would imply that if a mandated or assigned (obligatory) ruling becomes invalid due to the existence of an impediment, after the removal of that impediment the secondary ruling becomes unenforceable and the primary ruling must be enforced again on the responsible agent. Unfortunately, despite its many applications which fall within the provisions of secondary and governmental (state) rules, and in spite of numerous references to it in books of jurisprudence, this rule has not been independently investigated and its limits and conditions or the conditions of its authority have not been dealt with. Therefore, we witness much improper application of the rule in relating literature. Hence, to clarify the various dimensions of the issue, and through the application of a descriptive-analytical method and a data collection from library resources and documentations, first an accurate and comprehensive definition of the term ‘impediment’ is provided. Then, its difference with similar terms including disclaimer (rāfi’), certain (qāti’), and excuse (‘odhr). In addition, the rule has been compared with similar or related principles such as ‘Necessities make prohibitions permissible’, ‘A necessity is considered by its own measure’, ‘What is permissible due to an excuse becomes prohibited after its removal’, and ‘What is removed does not return.’ After an analysis of the argumentations for the rule (e.g. revision of the criterion and removal of specifications, rational reason and rationalist conduct) and with regard to the application and nature of the rule, nine conditions are drawn for its implementation or authority.

The hijāb is a religious obligation based on numerous sources and jurisprudential arguments. Some consider the hijāb as an individual and not a social issue, arguing that it essentially does not fall in the sphere of state interference and even other people’s intervention. The present paper discusses this important and critical issue within the responsibility domain of the Islamic state. Thus, by challenging the arguments of those who believe in the individuality of the hijāb, the paper aims to prove its sociality. The arguments are divided into two major categories: the juridical-legal and the Qur’anic, each of which find their appropriate responses in this paper. In addition, the jurisprudential aspect is studied more deeply. It should be noted, however, that the social essence of the hijāb and chastity, as well as the responsibility of the Islamic state as to protect and propagate the ideal, does not mean that the government should resort to force or judicial and penal measures for that purpose. Instead, on the basis of jurisprudential arguments, the state is obliged to adopt some of the best ways and mechanisms in order to encourage the people to exercise this good deed.

Suffering from those diseases which medical sciences have still failed to cure are some of the bitter events of human society. The ineffective treatments administered for these groups of diseases have been imposing heavy costs on patient’s families. These have often resulted in no major improvement of the patients’ overall well-being, only slightly increasing the life span of the patients which in turn seriously challenges the psychological comfort of the patients and their relatives. Carrying out euthanasia by withholding medical treatment measures with the purpose of facilitating the death of these patients seems to be a justified action. The present research aims at explaining the jurisprudential validity and the non-criminal understanding regarding this type of taking life; especially since some jurists have emphasized the impact of benevolent motives rejecting the liability of the individual taking the life of another on the basis of his positive intentions. The study adopts a descriptive analytical method based on the application of library resources. After explaining the basic concepts related to the discussion, the opinions of the jurists in relation to the issue were investigated and analyzed. Eventually, the view consistent with the hypothesis of the study was supported. In a jurisprudential perspective, taking the life of the patients near death through withholding treatment measures (passive euthanasia) is not consistent with any criminal action, thus no criminal liability can be imposed on its participants.