فصلنامه فقه و اصول
پیاپی 99 (زمستان 1393)

In the Islamic legal system، sale contract is regarded as among appropriative (tamlīkī) contracts، without any difference existing between the designation of the object of sale and its being wholesale (kullī). Thus، there has been a considerable controversy among the jurists on the time for designation of mabī‘ (object of sale) with the presumption that mabī‘ is wholesale، which would bring about different and in some cases contradictory impacts. Elucidation of this crucial issue and its analysis for achieving a definite theory can diminish diversity of views and make the rulings of this widely used contract more transparent. Civil law is brief about this issue، which has caused some lawyers، following the Western legal systems، to regard bay‘ as commitment (ahdī) with the presumption of mabī‘ to be wholesale and to exclude it from appropriative contracts. In this research، first an accurate elucidation of the concept “wholesale” and its different types is presented and thereby various opinions of the jurists have been examined in relation to the time for designation of wholesale mabī‘. Based on the findings of this writing، the joint (mushā‘) wholesale is designated by partition (ifrāz) and in designated wholesale (kullī dar mu‘ayyan) and indebted wholesale (kullī dar dhimma) the seller’s serious intention، to whom the customer has entrusted the selection and surrender of the wholesale instance، would be the criteria for designation of mabī‘.

One of the traditions relied on by Shī‘a jurists in jurisprudence and especially in the discourse on judgment and testimonies is the tradition or the story of Imam ‘Alī’s (A. S.) lost coat of mail. The coat of mail being found in the market while it had been put on sale by someone، the Imam’s going to the judge، filing a lawsuit against that person، and providing evident proofs in the court hearing، concerns a story frequently referred to throughout history. Many of the great Shī‘a jurists have used this tradition as a jurisprudential evidence for some of their rulings. While verifying this tradition and criticizing it through sanad and denotation، the present article has found out the falsehood of this tradition and its being forged and has addressed its negative repercussions in legal inferences. Presenting legal evidences and the negative impacts of this story on jurisprudence is among other important topics of this article.

There is disagreement among the Imāmī jurisprudences concerning the legal status of contract containing illegitimate subject; although some maintain the soundness of such contract، most jurists believe in the invalidity and prohibition of acting on the illegitimate subject of the contract. Among those maintaining the invalidity، some have accepted it as the primary rule and principle in these contracts and for proving it have relied upon the unlawful benefit as not being property، not having material value، lacking power to surrender، contradiction in religious law، and disclaiming the respect for unlawful property by the legislator. Some others، by criticizing the viewpoint of the first group، have maintained the invalidity of such a contract according to such traditions as those of Tuḥaf al-‘Uqūl. In this article، we have addressed the viewpoints brought up in this respect and finally have proved the invalidity and unlawfulness of such a contract in a new way by means of criticizing all the viewpoints and disproving the reasons given.

After determining the status of mawlawī and irshādī and deciding that they are attributes of commands and prohibitions and not attributes of ruling and after giving the opted definition and its advantage over other definitions، this article has dealt with the important discussion of the methodology and the measurements for distinguishing the mawlawī from the irshādī commands and prohibitions. According to different definitions of mawlawī and irshādī، the measurements for distinguishing these two are different، as well. The present article seeks to prove that alteration in the meaning and methodology of mawlawī and irshādī has entered uṣūlī discourses since the time of Shaykh Anṣārī onward، and these very alterations have caused many refutations and confirmations in the very definition and referents of mawlawī and irshādī، which have had a fixed meaning in Shī‘ī and Sunnī jurisprudence before Shaykh Anṣārī and the measurement for its recognition has also been specified. According to the writer، the same definition and measurements for distinction prior to Shaykh Anṣārī are the best in the discourse of mawlawī and irshādī and can create many changes in the content of many of the legal judgments (fatwās).

The Infallible’s (A. S.) taqrīr، as one of the three tradition types، is that an action is carried out in their presence، and although they can hinder it، they would adopt a position that would denote their consent. There are different issues of interest concerning the Infallible’s (A. S.) taqrīr. One of them is the typology of taqrīr، which has not been dealt with yet. The present paper has been written for elucidation of degrees of taqrīr، examination of the evidential degrees and finding types of its true evidence within the five schools’ jurisprudence. Then، the identified types of the sunna of taqrīr are compiled and critically reviewed under eight topics. Types of taqrīr are as follows: 1. Confirmation of words or actions; 2. Praising the actor; 3. Participation of the Infallible (A. S.) in the action; 4. Commanding the requirements of the words or actions; 5. Consent to the outcomes of the actions; 6. Silence along with smile/laughter; 7. Retelling the words، without confirming or denying، 8. Merely keeping silent.

The lawfulness of dhabīḥa (sacrifice) in Revealed Scriptures is implied from āya 5 of Sūrat al-Mā’ida، and the reason for it، besides the contexts and appreciativeness of the ruling for lawfulness، is that the word ṭa‘ām (food) in the above-mentioned āya، as testified by convention and lexicon، means dhabīḥa or related to dhabīḥa and the traditions concerning lawfulness approve it. The traditions that have interpreted ta‘ām as grains، are either in terms of mentioning the evidence or are contradictory to these traditions; in case of contradiction، the external aspect of the āya or the originality of lawfulness is referred to. There are discourses on reconciliation of the contradictory traditions، from which Shahīd Thānī’s discourse in predicating nahy (prohibition) to karāhat (repugnance) is preferable.

By accepting the responsibility of ‘āqila (blood relatives of the person perpetrated homicide) in unintentional homicides، the Islamic Penal Law، passed on Ordibehesht 1، 1392 sh/March 21، 2013، has included this view in article 463. This law maintains the following concerning how to pay for the diya (blood money) mentioned under article 468، “‘Āqila includes father، son، and the paternal and maternal blood relatives or paternal in order of inheritance level.” The content of the latter article relies on the consent of the renowned majority of the Imāmī jurists. They believe، “With the existence of the nearest of kin، undertaking of the farthest of kin is inapplicable and in case of the presence of all the male blood relatives، payment of the blood money is obligatory upon the nearest of kin according to the level of inheritance.” Their main evidence is their relying on the āya، ﴾but the blood relatives are more entitled to inherit from one another in the Book of Allah﴿ as well as the traditions concerning the above-mentioned issue. The writer does not regard as complete the reliance on the above āya and as fully approved the reliance on traditions. After criticizing the evidences of the generally accepted view، he concludes the following، “In payment of the blood money for unintentional homicide، the observance of order among the āqilia is not necessary and all of them are responsible for payment of the blood money; even though they are not heritable at death.” Although contrary to the generally accepted view، this view has drawn the agreement of some of the jurists; moreover، the generalities of the evidences approve it as well.”

Given the importance of intellect in inference، especially in new issues، it is befitting to study the jurists’ works، such as examining the jurisprudential mode of life (sīra) of Fayḍ Kāshānī as an influential jurist in the evolution of jurisprudence in proving the above issue. To this end، his various books have been examined on the basis of content analysis method and every one of his legal judgments (fatwas) studied. The research outcome indicates that the late Fayḍ considers the meaning of rational proof as a concept dedicated to the Prophets and regards the exigency of rational proof to be obedient to this intellect and somehow views the commonly known intellectual to be presumptive. He regards the people of ijtahād (legal reasoning) to be on the wrong path; and yet in some instances، he frequently uses rational proof and rational evidences along with scriptural proof. Therefore، it seems that he has used three concepts of intellect in his statement without asserting it: first، the concept that he considers intellect as dedicated to the Prophets and others deprived of it and at the same time useful and applicable in inference. Second is the concept of independent intellect، which in his view is not used in the process of inference. Third is a concept of intellectual proof that he has frequently used and is more used in perceiving the legal commands.

As mutually agreed upon by the two major sects (Shī‘a and Sunnī)، divorce is effected only by the husband; and to explain the evidence for this matter، the jurists commonly resort to the Prophet’s tradition، “Divorce is in the hands of the one who has touched the leg [i. e. in the hands of the husband]” Although this tradition is mainly related in the Sunnī tradition sources، it is claimed in Imāmiya jurisprudence to have consensus on its content as well. In this article، we intend to consider man’s will in one-sided act (īqā‘) of divorce not a merely devotional ruling، but as resulting from the quiddity and exigency of the nature of marriage and divorce، and view the mentioned tradition as basically guiding to the above reality. Accordingly، we regard the quiddity of marriage as “tamlīk (appropriation of) or taslīṭ (having absolute domination over) buḍ‘ (vagina) in return for bridal gift” and the reality of divorce as “a ceremonial renunciation” and view man’s authority over divorce as resulting from this same analysis and in accordance with the nature of the issue (without refuting the woman’s enjoyment and the excellent functions and goals of marriage). Of course، it is clear that no rightful person can cause damage to another person or disorder in society via exercising his own right. Therefore، the lawmaker can make arrangements in the implementation process of this issue.

The dynamism of the verity proposition has led to its being used in various issues and sciences as the founder for the general and constant principles. The principles of jurisprudence، as a science that is the founder for general rules to arrive at legal rulings، utilizes this proposition in many subdivisions of uṣūl (principles) as well as in resolving problems. In fact، if we do not take the verity proposition into consideration، reaching many of the significant principles of this science، such as proving the rulings، doubt in obligation and the object of obligation، the role of the proposition in distinguishing the generic from the absolute، and many other problems would naturally be impossible. Thus، by bringing the applied issues into this proposition، the role of this proposition in principle of jurisprudence is addressed in the form of a report on the reasons and ways of using the verity proposition from among the viewpoints of scholars of uṣūl.