فصلنامه فقه و اصول
پیاپی 82 (بهار و تابستان 1388)

Party and partisanship, in modern meaning, are new phenomena and, from the jurisprudence point of view, newly-emerged issues in Shī‘a community and culture. In religious thought, there are ambiguities, uncertainties and sometimes varied and even conflicting viewpoints concerning their acceptance or rejection.In elucidation of partisanship in Islamic thought, it is either attempted to seek for its equivalent in the Quran and ḥadīth sources, the sīra of the Infallible Imams and the early history of Islam, or to regard party and partisanship as modern and newly-arisen issues and according to their positive and intellectual functions and due to the concomitance of religious law with intellect, to issue legitimacy license for this modern political phenomenon. Considering these two methodological frameworks – with preference of the second – the present paper first studies the status of party and partisanship in the Quran, and then discusses the viewpoints and arguments of the proponents and opponents of the religious legitimacy of partisanship and endorses the "moderate consent" viewpoint.

Disrespect towards holy characters of any of the Revealed religions by the followers of another religion would drive dialogue among religions to a standoff; but showing respect and reverence to them would pave the ground for developing relations, approximation among religions, and empathy toward knowing the Truth, and would yield positive and constructive outcomes. Knowledge about the Revealed religion's rulings for disrespect towards their holy characters would reduce confrontation and conflict between the advocates of religions and prevent them from profanity towards each other's holy figures. This jurisprudential research tries to find out the ruling for disrespect to the Holy Mary according to credible legal sources of Christianity. Thus, first the main sources approved by Christian nominations are identified and introduced; and then the merits and virtues of the Holy Mary are extracted from the Christian Scripture and tradition and the Pope's opinions; and finally, the ruling and punishment for disrespect to this unique female character of Christianity is inferred and introduced.

Despite accepting the "principle of qiṣāṣ (retaliated punishment)" in the crimes against the physical entirety of people, the Islamic Legal System has stressed the preference of forgiveness and considered it as having precedence over retaliation. Therefore, the importance of studying the factors involved in lapse of qiṣāṣ, i.e, the factors which after actualization and proof of qiṣāṣ lead to its cancellation, becomes evident. With reference to the legal judgments (fatwas) of great jurists and the evidences and traditions concerning the lapse and non-lapse of qiṣāṣ punishment due to taking possession of the right to qiṣāṣ, the present article has undertaken to justify Mukhtār's view. In conclusion, due to the lack of clarity of the statutory laws in this respect, some suggestions are presented.

In the process of inferring legal rulings, as discussion about the ruling is essential, the discussion and examination of the "object of ruling" and what is involved in determining this object is also indispensable. The objects of rulings are specially varied and various elements are effective in their discernment. Among these elements, ijtahād (legal reasoning) has prompted widespread discussions. In the present research the role and degree of the impact of these elements on the discernment of the objects of rulings are discussed in two fields of conceptual discerning and proving applicability. This role in conceptual discerning is also followed up in three sections of plain, legally implied, and conventionally implied issues (questions). Of these three instances, ijtahād is involved only in legally implied issues. Concerning conventional topics, although the commonly used ijtahād is not exclusively involved, the jurist's expression of opinion is partially permissible and in some cases even essential. On the other hand, the commonly used ijtahād can not be regarded as an effective element in the stage of proving applicability (discernment of external issues).

Although our religious doctrines have given special importance to the execution of legal punishments and penalties for their conventional outcomes, the execution of legal punishments or their suspension in the age of occultation of the Infallible Imam (A.S.) has been one of the controversial issues in jurisprudence, to the extent that it has created two conflicting fronts; one, a group of distinguished Imāmī jurists who ranked among the proponents, and the other, a group of the jurist scholars who opposed the execution of legal punishments during the occultation, considering this privilege as the exclusive responsibility of the Infallible Imam (A.S.) or his special deputy. In relation to the legal penalties (ta‘zīrāt), there is a disagreement as to the question whether determining the quantity and quality of penalties lies with the ruler as a judge or it is within jurisdiction of the Islamic ruler, namely, walī ‘amr (supreme leader). It is attempted in this article, while studying and analyzing the arguments of the two sides on both issues, to touch upon the evidences derived from traditions available in this respect and to explore into different dimensions of this subject.

Civil responsibility, meaning to undertake to compensate the damage, is divided into two types of conventional and natural responsibility. The difference of these two lies in the existence of a conventional relation between the two sides before infliction of damage. That the above-mentioned difference becomes the origin for a dramatic difference in the basis and outcomes of the two types of responsibility is controversial among the jurists. The well-known view considers the origin of conventional responsibility to be the explicit or implicit intention of the two sides of convention and the origin of natural responsibility to be the ruling ordained by the legislator. This difference makes the domain of responsibility in the conventional responsibility subject to the intention of the two, enabling them to expand or restrict the extent of their commitment to the compensation of damage in case of violating the law. The more recent view denies this difference and considers other differences as peripheral. The present article highlights the first viewpoint and the author believes that since the origin of conventional responsibility is the intention of the two sides, they can assume the responsibility to be bigger or smaller that what is asserted in rules and that this agreement is not against the imperative rulings of the law-maker or the legislator.

Despite the claimed consensus concerning the cancellation of suspension in signing a contract, certain suspended institutions (established laws) can be found in Imāmī jurisprudence, which are very similar to "suspension in cancellation of commitment" in French law. In one respect, the source of Iranian civil law in commitments section has been Imāmī jurisprudence and French civil law, but this legal institution is missing here. Thereby, the question arises as to whether suspension in cancellation of commitment is included in the above-mentioned consensus and is not compatible to the Iranian law, hence not being explicitly accepted; or, for complementing the law, such legal institutions can be considered as out of consensus with regard to some jurisprudential establishments and accepted in Iranian law, too. Using the comparative study, this article is addressing suspension in cancellation of contract and its effects.