فصلنامه فقه و اصول
پیاپی 85 (پاییز و زمستان 1389)

Network marketing is a new method in today's trading, which can be studied as an independent transaction, although there might be some similarities between such topics as ijāra (lease), ju‘āla (hire), ṣulḥ (conveyance), and network marketing.In various network marketing projects, there are suspicions like chance, taking risks, deception, lack of attempt in earning an income, and withdrawal of capital from the country; thus, such doubts as gambling, consuming property wrongfully, and uncertainty of these transactions are put to discussion; especially in the types of transactions whose cycles are defined without exchange of goods or exchange of luxurious goods with unreal Given the direct and indirect destructive effects that these activities, especially of the second type, have on the economic networks of societies, besides the above-mentioned misconceptions, the most important title that can be taken into consideration by the Islamic state in delimiting it is the secondary decree of preserving the ruling system and its expedience. While referring to various types of marketing networks, this article addresses their legitimacy or illegitimacy. What we can say is that network marketing is not legitimate due to its consuming property wrongfully, gambling, uncertainty, and disruption in the system and is propounded as an unlawful (ḥarām) occupation, which ends up in invalidity.

propounded by Shaykh Ṭūsī in his Al-Khilāf and Al-Mansūṭ, following the Sunnī's example. As one of the dignitary figures in the history of Imāmī jurisprudence, Shaykh Ṭūsī has played a great role in the qualitative and quantitative development of jurisprudence. Adopting a historical methodology, the researcher raises the following questions and deliberates on Shaykh Ṭūsī's arguments: Why did Shaykh Ṭūsī not make reference to "consensus" (ijma‘) in this issue? Why did Shaykh Ṭūsī not make reference to the outer aspect of the noble āya: ﴾Men are managers of the affairs of women﴿? [The Qur’an, 4: 34] To what extent is the historical validity of the ḥadīth referred to by Shaykh Ṭūsī? How analyzable is the principle of "non-fabrication of judgment" for a woman, which forms her most significant reason? Concentration on how to raise the issue, arrangement of the data, presentation of the fundamentals, and the achieved results of this issue, provide a suitable "form" for dealing with the "content" and analysis of the issue according to basic principles by the method of Jawāhirī jurisprudence in other jurisprudential discourses and issues.

This article addresses the ordinance of midnight prayer (ṣalāt al-layl) upon the Holy Prophet (S.A.W.). Given the verses of the Qur’an and the traditions related from the Shī‘as and the Sunnīs as well as the sayings of the Shī‘a and Sunnī interpreters and jurists about the Apostle of Allah (S.A.W.)’s midnight prayer, the following three hypotheses can be proposed:First hypothesis: Midnight prayer has, from the beginning, been preferable to the Prophet (S.A.W.), for which four reasons are given, which are weak. Second hypothesis: Midnight prayer has, in the beginning, been obligatory to the Prophet (S.A.W.) and his companions, but later its obligation has been abrogated and remained as preferable. Four reasons have also been presented for this hypothesis, which are not strong enough. Third hypothesis: Since the beginning it had been obligatory upon His Holiness and remained obligatory to the end; the details of the reasons for this view are dealt with in this article.

The famous theory concerning the meaning and interpretation of text is called "intentionalism" which says: “The meaning or interpretation of a work is related to the intention of the creator of the work or is delimited and determined by it.” In this article, first, the most important intentions are examined, including: 1. Psychological intention and phenomenological intention; 2. Semantic intention, categorical intention, motivational intention; 3. Real intention and hypothetical intention; 4. Inner intention and outer intention. Then, different types of intentionalism are distinguished from each other and explained. Intentionalism can be divided into: 1. Semantic intentionalism and exegetical intentionalism; 2. Real intentionalism and hypothetical intentionalism (real intentionalism includes any of A. extremist or B. moderate; and hypothetical intentionalism includes any of A. main or B. epochal); 3. Exclusive intentionalism and inclusive intentionalism. In light of these distinctions, the commonalities and differences of Western intentionalism and Shī‘ī intentionalism are clarified.

In the uṣūlī classic viewpoint, the major support for the authenticity of the attitude of the intellectual (sīrat al-‘uqalā) is the enjoyment of the Infallibles (ma‘ṣūmīn)'s attestation. Accordingly, a great number of legal theorists (uṣūlīs) have propounded the contemporaneity of the attitude of the intellectual with the era of the infallible. After elucidation of the three viewpoints of the legal theorists concerning the necessity of attestation, achievement of non-hindrance, and the sufficiency of the non-affirmation of hindrance (rad‘), this research has tried, by presenting six solutions and through casting doubt on the preconditions of the necessity of contemporaneity of attitude (sīra), to find a way towards the generalization of the authenticity of the attitude of the intellectual to the attitudes originated in eras following the era of the Infallible and to take a step forward in the solution of the intricate problem of newly-appeared attitudes and the expansion of the efficiency of attitude in legal inference according to contemporary demands.

Muslim logicians and the scholars of jurisprudential principles have identified several types of generalities and named them as "false generality", "summation generality", and "exhaustive generality". In this article, we intend to compile as per our capacity the viewpoints of the legal theorists and analyze them with a historic-analytic discourse. First, we study the historical background of the issue in the works of the Muslim logicians and early legal theorists. In this period, types of generalities have neither a well-established terminology nor accurate definitions. In the second period, which starts from the time of Shaykh Bahā’ī and continues to the present time, the situation is totally different, and many definitions, discussions, and disputations concerning types of generalities take place. In this article, we will report on these definitions, disputations, and their categorizing, and in some cases we will judge between the disputing parties.

The principle of justice is among the basic principles of Islamic law, particularly, in the law of contracts. Different legal systems establish and renew legal rulings in numerous cases through this principle. In fact, the essential and formal justice in these legal systems prevents injustice and unfair and tyrannical procedures by designation of the principle of contract freedom. It is tried in this article to take a look at some legal systems, the American Uniform Commercial Code (U.C.C), and the Principles of European Contract Law (PECI) and compare them to Islamic law.We believe that in Islamic law the jurists have, at least in some of their inferences, considered the principle of justice as one of the basic principles for inference of rulings. However, we cannot clearly imply from the legal standards and fundamentals that the principle of justice has been taken as a general principle governing all the legal rulings and regulations, including the law of contracts.We also contend that in the common law system, including the American Uniform Commercial Code, the principle of contract freedom is accepted as a general principle governing the law of contracts; and only if essential and formal injustice is involved, this general principle is designated.