فصلنامه فقه و اصول
پیاپی 81 (پاییز و زمستان 1387)

The history of Islamic jurisprudence has witnessed two heterogeneous yet apparently similar trends – although in two different periods of time and manifestations. One is the Akhbāriyya movement in Imāmī school, which, with a new approach to practicing sharī‘a and while negating ijtihād (legal reasoning), regards intellect as being unable to achieve legal rulings.The second trend is the Salafiyya among the Sunnīs, which, although a basically ideological trend and not merely a jurisprudential movement, has specific views in the field of jurisprudence and religious law largely similar to those of the khbāriyya.An in-depth deliberation on the doctrines, major approaches, and methodology of these two important fundamentalist trends will reveal the existence of conformities and possibly certain interactions between them.The confrontation of these two trends with the process of legal reasoning, negation of rationality in the domain of ordinances, regarding the reasoning and rational arguments as unjustified in understanding religious law and complete reliance on traditions are among the issues that seem to be homogenous and consistent between the two.It is attempted in this research to survey and ponder on some instances of the similarities of these trends, particularly their view on intellect.

Adultery is proved only through numerous and frequent confessions (four times) and confession to less than that would not invoke legal punishment (ḥadd). This view is widely accepted by the Imāmī jurists. Among them, however, is Ibn ‘Aqīl ‘Ammānī who stands against the widely accepted view and believes that such crimes are provable by means of a single confession.By reappraising this issue and analyzing and evaluating the evidences of both views, the writer takes on a third theory. In brief, the writer believes that a single confession would suffice for proving the adultery provided that it meets all the conditions of effectiveness. Only the adultery leading to stoning (rajm), in terms of the narrations existing in this regard, requires four independent confessions in order to be proved. Besides enjoying a specific reason, the bulk of this theory is consistent with the generalities of the evidences like the overall rule "the confession of the wise on themselves is admissible", and the latter instance corresponds more with the "principle of precaution in bloodshed".

One of the fundamental secrets of durability of the true religion of Islam is the moral-ness of its doctrines. Jurisprudence or Islamic law, which gives direction to the behavior of the compos mentis and their life skills, is so intertwined with practical ethics that it can be said that all legal rulings in Islam appear in various areas of life with an ethical tone, and this appearance is the outcome of the intervention and impact of ethics on the process of the inference of legal rulings by the jurists.In any of these areas, family is regarded as one of the most important centers for human development and growth. In this respect and with a special attention to this issue, Islam has duly explained how the family should form and has necessitated the lawful cohabitation of a man and a woman as a couple for its consolidation. On the other hand, since family formation is intended to reach higher goals, such as achievement of peace, stability, survival, and rearing offspring, the basic role of the ethical and epistemic parity of the couples appears to be more evident.In order to elucidate the fundamentals of ethical parity of the couples, this research has made reference to certain Quranic verses, traditions, and various other sources and thereby seeks to demonstrate that each of the wife and the husband must be equally free from the ethical attributes that "always" or "often" contradict the philosophy of marriage. Furthermore, the present article is intended to explain that such parity and equality, whose efficiency has been proved according to the religious knowledge and doctrines, has similarly been established by psychologists and social scientists, who have gone so far as to even regard the durability of a marital relationship dependent upon the parity and similarity of the wife and the husband in their religiosity and faith.In the end, this research has drawn the important conclusion that in case of the ethical non-parity of the couple, the prohibition or invalidity and revocation of the marriage contract can be maintained in the preconditions before and after marriage as well as before and after consummation.

Refinement of the basis of the ruling (tanqīḥ al-manāṭ) is among the important approaches in the process of legal reasoning and inference of legal rulings. By applying this procedure, one can achieve the ruling criterion and be assured about it, and thus, contrary to the analogy in deductive form (mustanbit al-‘illa), it is accepted by the Shī‘a jurists.Those who have sufficient experience in inference of legal rulings and enjoy mastery of legal reasoning can undertake this task by annulment of specification using the method of probing and division.

One of the most important legal issues debated among the jurists is whether it is necessary or unnecessary to investigate the justice of the anonymous and to what extent. The renowned majority of the jurists maintain that if the anonymous individual performs an action which is to be subject to justice, it is necessary to investigate about his justice, but they disagree on the extent [of investigation]. Some jurists have also said that investigation about a Muslim's justice is not considered a sin qua non. In this article, first the above viewpoints are examined, and then, given the result of the distinction between mediative and topical notion of justice, the writer presents a criterion for the degree of investigation about justice in different cases.

Nowadays proposing high dowry payments has become widely common in Iranian society and certain other societies in order to give more validity to marriage, since the common people believe that if the dowry payment is higher, the marriage bond would be stronger. Irrespective of the morally negative aspects of this customary practice, proposing high dowry payments may lead to legal repercussions, as well. The juridical situation of this type of dowry payment is the topic dealt with in this article. The research hypothesis is that high dowry payment is not in itself a cause for its invalidity; but if the dowry proposed is higher than what the man can afford, so as the woman knows at marriage that he would not be practically able to pay it off, she would not have the right to have him imprisoned. In this research the lawmaker is suggested to consider as a proviso a ceiling for the implementation of article 1085 of the civil law in regard to dowry payments.