فصلنامه فقه و اصول
پیاپی 91 (زمستان 1391)

In this article a part of the amendment to the Iranian Civil Law, i.e. amendment to article 946, ratified in Bahman/February 1378/1999, is analyzed from the legal point of view. This article, according to which a significant change has taken place in the way the wife inherits from her husband and the civil law has distanced from the views of the renowned majority of the Shī‘a jurists and has approached the views of the Sunnī jurists and the uncommon and rare views of the earlier Shī‘a jurists. Also, with the aim of upgrading the legitimacy of the statutes while preserving the dynamism and realism of the existing laws, the degree of conformity of the above-mentioned amendment with the jurisprudential standards and the reasons that can weaken or confirm it is examined so that with such discourses the ground is paved for the systematization of changing laws and more and more closeness of the laws to the Islamic standards in the future and realization of the most important ideal of the Islamic Revolution, i.e. the Islamization of the ḥukūma (Islamic rule) and society and the most important principle of the Constitution, i.e. the forth principle.

It is stipulated in our Islamic jurisprudence and law that when a person is killed and he or she has several legal guardians, if some of the guardians pardon, the remaining guardians have the right to retaliate in qiṣāṣ provided that they pay the share of the blood money to those demanding blood money.It is pronounced in the article 264 of Islamic Penal Code that:“If there are several legal guardians [heirs] of the murdered person, retaliation is enforced by the agreement of all of them. If all of them demand retaliation of the murderer, he will be retaliated in qiṣāṣ; and if some of them demand retaliation and others demand blood money, those who demand retaliation can retaliate the murderer in qiṣāṣ, but they have to pay for the share of blood money of those others who demanded for blood money. If some of the legal guardians pardon for free, others can retaliate the murderer in qiṣāṣ after having paid the share of the pardoners.”However, in regard to numerous traditions stating that the right to retaliate is voided with the pardon granted by some of the legal guardian, and in respect to the fact that some jurists and exegetes have stipulated that in case of pardon by some of the legal guardians the right to qiṣāṣ of the remaining guardians turns into blood money; and since it seems that the reasons for the lapse of qiṣāṣ enjoy more certainty, it is necessary that the two parties’ evidences concerning this issue be re-examined.

The present article studies the issue of the “necessity of imitating the most learned (a‘lam)”. To this end, while comparing the evidences of the proponents and the opponents of the necessity of imitating the most learned and, explicating the weak points of the former viewpoint, it draws the conclusion that the viewpoint of the permissibility of imitating the master jurist (mujtahid) in general, whether the most learned or not, is free of problem and likely to enjoy more solidity and strength; a view which is contradictory to the generally accepted view.

One of the requisites for proper understanding of the legal statutes (nuṣūṣ) is that the legislator and the jurist, along with other wise people in various scenes of life, should enjoy collective wisdom and, besides having their own personal viewpoints, they should possess general consciousness and mental background; as this collective consciousness can have a significant role in proper understanding of religious, and specially, legal texts. The religious researchers have since long ago been concerned as not to be negligent of the role of these general and conventional beliefs, conjectures, and impressions.The principle of “proportion of ordinance and subject”, which is rooted in these same general impressions and rationalizations, concerns the suitability and compatibilities between the ordinance and subject in any religious statute with a conventionalist view and at the same time confirmed by religious law (sharī‘a) that by proper understanding it is found out that the ordinance is absolute or restrained; that it has generality in its subject or is designated; or in some instances the ordinance is permeated to other instances by achieving the cause. It is attempted in this article that by a proper definition of the proportion between ordinance and subject and proving it by delving into the viewpoints of the jurists and legal theoreticians to point out the mechanisms for its recognition; and with the scattered evidences and sayings of the jurists on various subjects, its function in statutes to be identified and in the end some applications of this law to be indicated.

A little deliberation on the contents of the contracts concluded between the real and legal persons reveals that nowadays the nullifying condition is gradually being included as one of the conditions of contracts. The legitimacy of this position of suspending the forcible dissolution of contract in Shī‘a jurisprudence is the subject of a fundamental research, which the present article attempts to report with descriptive method, relying on the library studies within the limits of the written legacy of the Shī‘a jurisprudence.Observing the two existing viewpoints and analyzing and examining the reasons of each of the proponents and opponents of the legitimacy of nullifying condition, with regard to the Sunnī and Shī‘ī evidences, makes the acceptance of the legitimacy of nullifying condition inevitable; and, as such, the non-sufficiency of the words of the opponents of the legitimacy of nullifying condition, in itself, confirms this fact.

A little deliberation on the contents of the contracts concluded between the real and legal persons reveals that nowadays the nullifying condition is gradually being included as one of the conditions of contracts. The legitimacy of this position of suspending the forcible dissolution of contract in Shī‘a jurisprudence is the subject of a fundamental research, which the present article attempts to report with descriptive method, relying on the library studies within the limits of the written legacy of the Shī‘a jurisprudence.Observing the two existing viewpoints and analyzing and examining the reasons of each of the proponents and opponents of the legitimacy of nullifying condition, with regard to the Sunnī and Shī‘ī evidences, makes the acceptance of the legitimacy of nullifying condition inevitable; and, as such, the non-sufficiency of the words of the opponents of the legitimacy of nullifying condition, in itself, confirms this fact.

Tanqīḥ al-manāṭ (refinement of the basis of the ruling) is the refining and elaborating of the reason and basis of a ruling of the redundant features along with decreeing and generalizing it to any case that enjoys a common feature. Tanqīḥ al-manāṭ was brought up first by the Sunnīs in the fifth/twelfth century and later on in the seventh/fortieth century was explicitly and formally raised among the Shī‘as. (However, implicit approaches to it had already been adopted, as well) This approach had later been more or less of interest to the jurists and they had made reference to it and talked about it, too.In this article, the approach of the jurists has been analyzed and explicated from the beginning up to the present in terms of the opinion and viewpoints in action and evidences in various periods. It is also clarified, in conclusion, that except one of the jurists for some justifiable reason, no body disagrees in general with the authenticity of tanqīḥ al-manāṭ and almost all accept the authenticity of the definite tanqīḥ al-manāṭ and that only some great scholars have restricted its authenticity to the non-devotional rulings. On the other hand, however, all the Imāmī jurists disagree with the presumptive (ẓannī) tanqīḥ al-manāṭ and only a few of the notable Imāmī scholars have regarded as valid the presumptive tanqīḥ al-manāṭ supported by lafẓ (term, wording) and some others have regarded as valid the confided tanqīḥ al-manāṭ.