فصلنامه فقه و اصول
پیاپی 95 (زمستان 1392)

There is no doubt in the existence of the right to imprisonment in the marriage (nikāḥ) for the wife. That is to say، the wife is entitled to refuse submission until receiving all her dowry in case it is urgent (mu‘ajjal). The question arises here as to what the extent of this right to imprisonment is. Does it merely apply to specific submission or does it include general submission، as well? If a husband is insolvent and cannot pay the dowry and is not able to pay all of it at once and pays it by installments by order of the court of justice، some believe that by receiving the first installment، the wife no longer has the right to imprisonment; whereas، some have not accepted this view and this issue has become problematic in relation to sumptuous dowries، which would take years to pay off. In this research، we have reviewed the viewpoints of the jurists and scholars on this issue.

The rule of certitude has been brought up as one of the five pivotal principles of jurisprudence، which in itself includes several principles such as istṣḥāb (presumed continuity)، but over time it has been dissociated. Similarly، the rule of istṣḥāb has been mooted as discretionary (ijtahādī) reason; however، after resorting to traditions for its authenticity (ḥujjiyat) it has turned into one of the practical principles due to its being devotional to the extent that Shaykh Anṣārī regard those traditions only consisting of istṣḥāb and not the rule of certitude، which has been renowned as an inclusive doubt. This remark of him has been accepted by most of the (legal theorists) uṣūlīs، although some of them have given other reasons than his reasons for this claim. The total sum of these reasons are categorized into two states of approval and affirmation، which، upon being critically reviewed it seems that none of these reasons are sufficient and the traditions of istṣḥāb in general include both of the rules. A study of the traditions، rather، implies that their instances are not made exclusive to istṣḥāb، but such rules as the rule of certitude and indebtedness (ishtiqāl) are instances of these traditions، as well.

Since long ago, there have been discourses among the exegetes concerning the indication of the āya on polygamy ﴾If you fear that you may not deal justly with the orphans, then marry [other] women that you like, two, three, or four﴿, especially regarding the relation between the condition and the result. Various opinions, statements, and probabilities have been expressed in correcting this relation. A tradition based on the relinquishment of one third of the Qur’ān in the middle of condition and result as well as the replacement of the verses has aggravated the ambiguity of the meaning of the āya. In order to keep essential the permissibility of polygamy, the jurists have dealt less with the indication of this āya. Explaining the expanse of the appearance and indication of this āya, the present article has brought up and criticized the two major viewpoints (of ‘Allāma Ṭabāṣabā’ī) on the relation between condition and result and then has proved and reinforced the third viewpoint in the āya, according to which the āya has proposed the permissibility of polygamy for the men who fear undertaking the guardianship of orphans would lead to the violation of their rights and properties, so that they can, in light of the women’s presence, who are a source of emotion and kindness, deal with the proper training and educating the orphan children.

One of women’s psychological concerns is the remarriage of their husbands; however، the renowned majority of the jurists do not regard as valid the condition of non-remarriage due to its opposition to religious law. In this research، therefore، it is attempted to examine this issue from another perspective; thus، the traditions that are explicit or apparent in meaning concerning the possibility of this condition and the formats brought up in them are analyzed and it is indicated that the condition of non-remarriage and amicable settlement of the right of remarriage do exist in traditions and the possibility of guaranteeing this commitment has been confirmed. Throughout the discussions، we have responded to the scholars’ criticism for traditions clarifying the permissibility، critically reviewed the generally accepted perception، and preferred another understanding of the traditions referred to by the jurists. Besides، it seems that commitment to non-marriage after the death of one’s spouse is not valid from the perspective of traditions and due to disowning the general rights.

Concerning the prohibited or obligatory actions for perpetrating or abandoning of which no punishment has been established، the act of determining discretionary punishment is entrusted to the Muslim judge. An important and meaningful question is raised here as to whether this kind of punishment would include all the unlawful actions and abandoning? In other words، are all legal sins and misdemeanors legally punishable or the Muslim judge would announce just a part of it as punishable? According to the generally accepted legal viewpoint، the legal judge can، if he deems it expedient، penalize (practice ta‘zīr on) the one who has perpetrated an unlawful (ḥarām) act (and some maintain that the unlawful act has to be a cardinal sin)، but ta‘zīr should be less at a lower level than ḥadd (legal punishment). The renowned majority of Imāmī and Sunnī jurists have accepted this theory. In contrast، some jurists، including Muḥaqqiq Ardabīlī، have cast doubt on the judgment itself that any unlawful act deserves to be punished through ta‘zīr. Some contemporary jurists have also concluded that there is no reliable evidence that the perpetrator of any unlawful act would deserve ta‘zīr. Some have، even if accepting the judgment itself، interpreted the extent of ta‘zīr in such a way that it would include admonition، advice، reproach، and threat، as well. It is attempted in this article that while making an analytical statement of the viewpoints of the two sides، the viewpoints of the jurists who agree with this judgment to be seriously criticized and to prove with a dominant legal perspective that there is no jurisprudential or legal evidence for discretionary punishment of any unlawful act and consequently، this viewpoint is not to be easily taken as a foundation for legislation.

Given the importance of the evidence of intellect (dalīl-i ‘aql) in inferring legal rulings، especially in new issues، examining the evidence of intellect would help a better use of the evidence of intellect. Examining the legal attitude (sīra) of Muḥaqqiq Ardabīlī as an influential jurist in development of jurisprudence is befitting and praiseworthy in proving this issue. For this purpose، his discursive and theological (uṣūlī) legal texts have been examined on the basis of content analysis method and his legal judgments have been examined one by one. The results of the research indicate that Muḥaqqiq Ardabīlī has abundantly employed intellect and has derived different meanings from it. The most part of it has been the perception of intellect in recognition of the limits of the ruling and its conditions. He has plentifully utilized intellectual analysis in the interpretation of the Qur’ān. He has also used the intellectual analysis of the Qur’ān in the inference of rulings. Muḥaqqiq Ardabīlī maintains that intellect can perceive good and evil and consequently issue the necessary intellectual ruling. He has sometimes used the evidence of intellect along with other evidences parallel to them، too. He has used the evidence of intellect in proving the practical principle of continuance (istiṣḥāb) of the principle of permissibility (iṣālat al-ibāḥa).

Language consists of two components of word (lafẓ) and “meaning” and the consolidated relation between word and meaning causes human mind to be transferred from the notion of lafẓ to the notion of “meaning”. The nature، origin، and source of this relation have always been of interest to the philosophers of language، linguists، and legal theorists. Some have regarded this relation as resulted from the devising and convention and some others maintain that the allusion of words to meanings is a natural allusion. One group regard it the outcome of the devisor’s fabrication (ja‘l) and validity and another group that there is a real and genetic relation between words and meanings. Similarly، a group of learned scholars consider the devising of words to be a human action and believe that humankind have devised word for meanings; and yet another group maintain that the devisor of words is no one but God. All the above-mentioned and whatever that takes into consideration the relation between words and meanings is brought up under the heading of “devising theories” in linguistics and basics of jurisprudence methodology (‘ilm al-uṣūl). A study of the viewpoints of the legal theorists (uṣūlīs) and linguistics in this article clarifies that the mind’s transfer from words to meanings takes place according to a general law of the laws of human mind، which the linguists and psychologists have called “association of ideas”. It means that the emphatic conjoining between word and meaning causes the imagining of word to associate meaning in human mind. The association between word and meaning itself is rooted in devising words. To convey concepts to others and fulfilling one’s needs in society، human beings have undertaken to devise a series of words. This devising and convention would cause conjoining of words and meaning، and consequently، the bond and relation between them، and finally، the allusion of word to meanings.