فصلنامه فقه و اصول
پیاپی 92 (بهار 1392)

Human dignity is examinable at least in three fields: human dignity، Divine dignity، and socio-conventional dignity. In this article، due to time limits، we have only dealt with a part of what can be presented about dignity (karāmat)، i. e.، argumentative proof of human dignity. In general، there are two major systematic methods for confirming the propositions and premises mooted in the context of jurisprudence and Islamic law. The first method is using the jurisprudential (ijtahādī) evidences and the second is determining the practical principle. From the viewpoint of the author، these two methods are apt to come up with for proving the human dignity right. One is following up the jurisprudential evidences of human dignity and the other is being content with the lack of valid reason in suspicious instances for human degradation and، as a result، negating the right to degrade humankind in the light of jurisprudential evidences. The first method is maximal and the second is minimal. In the present work، I have tried to prove the right for human dignity with the use of the above two methods. In this context، too، our time is very limited and for this reason we would address only some of the evidences and promise the respected readers a more detailed discussion at a more sufficient length of time in future.

In this article، aimed at promoting Iranian statutes and increasing their applicatory aspects and for providing more and more financial security of society، the legal rule of i‘rāḍ (avoidance، abandonment) is deliberated on، which is a rule that is not clearly and extensively discussed but is the basis of some rules in Iranian civil law. This has caused some obscurities، and sometimes، hasty decisions in regard to expropriating people’s properties presuming that those properties have been abandoned. The degree of generalizability of the principle of avoidance، how to establish avoidance، the difference between the abandoned property and abandoned and lost property، ineffectiveness of avoidance in case of proprietor’s recourse or the existence of the possibility of recourse (rujū‘)، the outcome of avoidance in collective and joint rights، and non-relinquishment of property as a result of avoidance in immovable properties، are the main issues sought to be explained and proved in this article.

The ownership that involves transactions and barters is subject to the validity of the intellectuals and the lawmaker، which is created by hypothetical (i‘tibārī) existence and can somehow be called a hypothetical relation for whose validity the existence of local convention is sufficient; therefore، ownership is neither among the categorical accidents، the existence of whose subjects is necessary in the outer world، nor like the mental conventions that resembles the concepts whose accidents and qualification are mental. Right (ḥaqq) is a specific capability that sometimes applies to physical goods (‘ayn)، sometimes to the contract، and sometimes to the person; such as the right of delimitation (taḥjīr)، the right of option (khiyār)، and the right of retaliation (qiṣāṣ). The object of right is in all cases an action that involves the physical goods، or person، or contract; whereas، property is a possession or domination that in reality involves the very physical good، or benefit، or action. Therefore، since the property is essential for absolute domination and the right is regarded as a special credit in some specific appropriations، the right cannot be considered as the property itself; and، furthermore، since property is by nature a simple issue and non-gradational، the right cannot be considered as a degree of the property. Besides، in some rights، including the right of delimitation and the right of specification (ikhtiṣāṣ)، ownership is essentially out of question. Given its specifications، right is principally conveyable، relinquishable، transferable to inheritance except in cases in which a specific reason prohibits all or a part of appropriations and everything that is in nature characterized by right is apt to relinquish، otherwise it is regarded as a decree، in which case it is not relinquished except by compliance with decree or denial of the subject. Since evidences for transactions stand as enforcement of legal means، if in cases of doubt، there is certainty about transferability and doubt in deterrence or conditionality is the specific cause، the generality of the evidence of condition or amicable settlement (ṣulḥ) would be executed; and if doubt is in the transferability itself، the principle is the non-acceptance of transference.

If، in special circumstances، a decree that had already not been permissible becomes permissible due to facilitation for the religiously accountable (mukallif)، that legal decree is called allowance (rukhṣat)، such as the permission to eat carcass for the one compelled by necessity (muḍṭar). However، the general legal decree that is devised for the religiously accountable in general in conventional circumstances is called determination (‘azīmat)، such as the unlawfulness of a menstruating woman to perform prayer، the unlawfulness of expropriating others’ properties، and the obligatoriness of prayer and fasting for the religiously accountable in general. As for some of the primary decree that are suspended for the religiously accountable on the basis of the evidences of no constriction، no harm and desperate necessity and secondary ruling is legislated، the question arises as to whether these secondary decrees on the religiously accountable is rukhṣat or ‘azīmat. Also، in cases where it is rukhṣat، the relation of permissibility (ibāḥa) to rukhṣat is open to discussion. In this article، while explaining rukhṣat and azīmat، the legal nature of these two and the relation of rukhṣat to ibāḥa، and some instances of the application of these two terms are analyzed and examined along with explaining the jurists’ opinions concerning some of the legal precepts and rules.

Today، the issue concerning the conferment of the whole or a part of the material rights belonging to the author and the related contracts is of special importance، to the extent that in some legal systems، such as the French، various specific contracts، like the publication contract، special provisions and regulations have been devised for it. Whereas، no special rules concerning the above-mentioned contracts are seen in Iranian legal system despite the recognition of the rights of literary and artistic works and the acceptance of the voluntary conferment of material rights of the author. Consequently، the legal nature of the contracts related to conferment of the material rights of the literary and artistic works is facing serious obscurities. With a comparative study of the legal nature of publication contract، it seems that in Iranian law the publication contract can be signed in the form of any of the lease، amicable settlement (ṣulḥ)، and commutative contracts، as well as the contracts of exploitation right. In addition، article 10 of the civil law also provides the possibility for the publication contract to be signed in the form of a non-specified contract.

According to the traditionists (akhbārīs)، “inference of theoretical precepts from the external meanings of the Qur’ān and the sunna of the Prophet without reference to the Infallible Imams is not permitted. Also، after enquiry into the sayings of the Imams، if no contextual evidence is found، it has to be ceased and no recourse can be made to the above external meanings.” The reasons that akhbārīs have provided on this claim are varied; however، their most significant reasons are the traditions that they claim to be frequently narrated (mutawātir). This article examines the reasons that the akhbārīs have presented for their claim or attributed to them. The conclusions achieved from this examination include the following: 1. Ḥadīth al-thaqalayn has the capacity to be a reason for both akhbārīs and uṣūlīs; 2. The akhbārīs have not referred to the distortion of the Qur’ān as evidence in this claim; but in the later writings of uṣūlīs such allegation has been made against them، which is an inadvisable allegation; 3. The claim of the akhbārīs is not compatible with the present realities of life in Islamic communities; and their claim is highly ideal but inaccessible.

One of the most highly applicable evidences for inference of legal precepts is the isolated tradition، whose acceptance، rejection، or limitation is highly effective in the consequences of inference. Muḥaqqiq Ardabīlī، as one of the geniuses of Imāmī jurisprudence in tenth/ sixteenth century، with his special attitude toward this source of inference of precepts، has regarded only the validity of the supremely sound tradition as acceptable and has rejected the other validity of traditions in basics of jurisprudence methodology (‘ilm al-uṣūl). This approach has left a great influential impact on his jurisprudence، in such a way that he has given up the legal judgment of sanction in proving the decree of sanction due to the unsoundness of the tradition، and in most cases he has maintained a decree of repugnance due to his scholarly and practical caution arising from his asceticism and piety. Similarly، because of this same opinion، he has been very cautious in designation of generalities of the Book and the frequently narrated (mutawātir) traditions by means of the isolated tradition and has regarded only the specific and explicit isolated tradition as authorized (ḥujja) for designation of generalities. In this research، we intend to examine the viewpoint of Muḥaqqiq Ardabīlī concerning the isolated tradition and its evidences and analyze its outcome and applications in his jurisprudential school of thought.