فصلنامه فقه و اصول
پیاپی 98 (پاییز 1393)

Paying attention to the lingual analysis of the legal concepts and propositions is one of the most important sections studied in philosophy of law. The nature of the science of law necessitates its intermingling with words; law, contract, verdict, legal authorship, all have to be put into words to be understood and executed. The first stage of understanding a text or a speech – including a legal proposition – is to understand its meaning. Thus, this research seeks to find a semantic pretext for legal propositions. There is much material in this respect in analytical philosophy and the science of semantics, which has helped legal experts have better understanding of law. Nevertheless, Iranian legal logic and principles of law have been adopted from the principles of jurisprudence. The legal theorists (uṣūlīs) have proposed many discourses on the meaning of legal terms and the relation between words and meanings. Concerning the relation between a word and its meaning, it is opined that this relation is essential and conventional. Similarly, most of the legal theorists consider the object or dependant (muta‘allaq) of the meaning of non-conventional words as rational nature or percipient. Acceptance of any of these approaches has a direct impact on the legal experts’ attitude towards law, particularly in exegesis (tafsīr).

Islamic Azad University of Maymeh, Young and Elite Research Club, Maymeh, Iran Moon is considered a natural calendar for human individuals. Proving the crescent sighting is among the issues that all human beings are somehow in need of. Similarly, the Islamic religious law has subjected some of the important devotional acts upon proving the crescent sighting. This very fundamental function of the moon in the matters pertaining to this world and the Hereafter, has given the issue of proving the crescent sighting a special status in Islamic thinking. The question that the present research would deal with is whether the Islamic judge has authority over proving the crescent sighting or not. In fact, do people have to refer to their supreme legal authority (marja‘ taqlīd) concerning the crescent sighting or is the sighting among the state’s duties? Jurists have expressed various views on this question: a group of renowned majority of the jurists have considered as valid the judgment of the Islamic judge, whether his judgment is documented by evident proof or by his own knowledge. Another group maintain the invalidity of the judgment of the Islamic judge and believe that his judgment is not valid whether it is documented by evident proof, by being much reported (tawātur), by having prevalence (shuyū‘), or by the judge’s own sighting and knowledge. Yet, another group maintain that if the judge’s judgment is documented by evident proof, his judgment is valid and if it is documented by his own knowledge and sighting, it is not valid. To provide an answer to the above question, the present article tries to critically review and evaluate the brought up opinions and evidences of each one of them and conclude that the judgment of the ruling jurisconsult on the proof of the crescent sighting is necessary for, and even obligatory upon all people and that all people, even the legal authorities should follow it, since authority evidences of the judgment of the Islamic judge would include them, too.

The condition within the contract is a principle that has been recognized in the Islamic Law but there is disagreement among the authorities concerning its impact on the condition of the contract in the two stages of formation and continuation of the contract. In the formation stage, the difference is in terms of the relation between the condition and the subject, concerning which, from among the views of being part of the subject, being a description or a subordinate, and being independent, the latter view is more conforming to the legal rules and the intention of the two parties, according to which, the invalidity of condition would not have any effect on the validity of the contract. In the continuation stage of the contract, the difference is a result of the role of condition in the intention of the two parties; since some have by a single objective (waḥdat-i maṭlūb) come to believe that denial of the condition causes cancellation of the contract. Some maintain the multiple objectives (ta‘addud-i maṭlūb), according to which invalidation of the condition causes the cancellation of part of the contract; and some believe in the multiplicity of the main (i.e., the contract) and the peripheral (i.e., the condition), according to which, denial of the condition does not cause the cancellation of the contract; rather, it would lead to option (khīyār) for the party in whose favor the condition is set (mashrutun lah). This latter viewpoint is more conforming to the legal rules and the nature of condition.

The relation between an authorized contract and transfer of another’s property is one of the subtle and, at the same time, important issues of civil law as well as criminal law, which has doubly increased the legislator’s silence, numerous contradictions in legal texts, bewilderment of intellects, and confusion in comprehension. There are various probabilities apt to come up concerning the relation between these two positions, such as divergence; equality; generality and peculiarity in some respect (min wajh), and absolute (muṭlaq) generality and peculiarity. Since the recognition and distinction of these two topics creates significant practical outcomes, as for instance in case of conviction of “transfer of another’s property” that would prompt punishment for fraud, and since there is no distinct criteria in statutory regulations and legal writings for making distinction between an authorized (fuḍūlī) contract and transfer of another’s property, it is tried in this article to clarify their similarities and differences so that it may inspire the legislator to provide personal criterion in law.

Dividing the jurists into akhbārī (traditionist) and uṣūlī (legal theorist) is the most important division that dichotomizes the Imāmī jurists into two groups. In jurisprudential and legal (uṣūlī) books, there are many instances of characterizing a jurist as akhbārī or uṣūlī, but what is important in this division is the criterion for this division. What is manifested in the first place as the criterion for division is the remark made by the jurist in terms of his being akhbārī or uṣūlī and the akhbārī or uṣūlī dimension of the masters or disciples of that jurist. By a preliminary study, the non-efficiency of these criteria is manifested. However, another possible criterion widely addressed in this writing is the differences between the akhbārīs and uṣūlīs that are mentioned to be over a hundred in number. In case these differences are real and important, a criterion can be obtained and it can be realized as to which category of jurists a jurist would belong. Nevertheless, by examining and categorizing these differences, it would be figured out that these differences are not the criterion for dividing the jurists, nor is there any accurate criterion for this dividing.

Jurisprudence has been originated from the Qur‘ān and ḥadīth and the narrational or ma’thūr jurisprudence has been the first jurisprudential style after the rise of Islam, to such an extent that in the latter periods the expansion of this jurisprudence was intermingled with rational inferences and some issues that enjoyed more widespread aspects were accepted as rules. The rule of prohibition of taking wages for ritual obligations (wājibāt) has been considered as a challenging and controversial rule. This rule in early period of jurisprudence has its roots in some specific-case traditions on judgment, adhān (call to prayer), and instruction of the Qur’an; and in the books of the earlier scholars there is simply a legal judgment (fatwa) on the prohibition of taking wages for preparation of a dead body [for burying]. Differences concerning this issue in the latter periods have been mainly based on and arisen from rational aspects and analyses; and so far the scholars of this field have widely dealt with the rational principles of the rule. However, it has been seriously lacking in addressing the Qur’ānic and narrational aspects of this issue. In this writing, the stipulated and authorized (manṣūṣ) principles of the rule have been gathered from various narrational and exegetical books and put to criticism.

Justice rule is among the legal rules that have less dealt with. Application of this rule is based on achievement of justice as an attribute for legal rulings. Some jurists have no regarded human beings to be capable of comprehending the legal rulings as just and have subjected it to the legislator’s view. Thus, using this rule in inference of legal issues and extending it to jurisprudence has been cast into doubt. This article examines the possibility of unveiling justice in legal rulings in two stages. In the first stage, it has proved that justice is a real and objective concept and denotes an external reality unlike the traffic signs, whose reality is based on agreement and validity. In the second stage, it has proved that the justice brought up in the Qur’ānic and narrational evidences of this rule cannot be justice from the viewpoint of the legislator for four reasons, consequently its recognition has been referred to human understanding.

The person, who, on his way, encounters a fruit-bearing tree belonging to others, can eat from its fruit as much as fulfilling his need, provided that his reaching to that tree has been accidental rather than on purpose; and that he should not take away any fruit with him and damage a tree or a fruit. In this respect, the owner’s consent is not considered a sine qua non. The reason for this ruling is a number of traditions that, although terminologically isolated (wāḥid) and presumptive, can be considered as “isolated traditions accompanied by convincing evidences” according to various evidences. This ruling is generalizable to the trees owned by government, as well.

There is no doubt that expressing new ideas, exchange of opinions, and criticism of the scholars’ ideas are among the scholarly traditions that are influential in purification as well as dynamic and sublime development of any science. The science of jurisprudence and the jurisprudential opinions of jurists are not apart from this rule, either. Hence, in a fundamental research and through a descriptive-analytical procedure, the present writing undertakes to critically review the jurisprudential opinion of Professor Muhammad Ibrahim Jannati concerning the jurisprudential principles of stoning and tries to figure out to what degree the above jurisprudential opinion are compatible and consistent with the selected jurisprudential principles of that respectful scholar and the sources and evidences of Shī‘ī jurisprudential ijtahād (individual reasoning).

The characteristic of denotation (imāra) is its typical speculative exposition (kāshifiyyat), for which the legislator devises validity in respect to this characteristic. In contrast to it is the practical principle that is not concerned with reality and is used simply for getting rid of confusion in practice. In the meantime, the confirming principle (aṣli muḥriz) is set forth, which both enjoys principle and incorporates denotation. There have been various definitions presented for the confirming principle, the core aspect of all of which is devotional confirmation of something as true by one of the two sides of suspicion in practice, and making a transaction accordingly, without having, as denotation does and by means of its content (mu’addā), an exposition concerning the truth. While delineating the framework of such concepts as reason, denotation and principle, and taking a look at the concept presented about the confirming principle, the writing presented here has, by setting forth some considerations, viewed the confirming principle or devotional confirmation as a contradictory combination and brought up some deliberations and considerations concerning its existence.