فصلنامه فقه و اصول
پیاپی 107 (زمستان 1395)

Among the causes for the prohibition of marriage is fosterage, which is one of the most important issues of concern. There is consensus among the jurists of all the Islamic schools in that fosterage is one of the causes of prohibition. However, the issue disagreed upon is whether the source in fosterage causing the spread of sanctity (ḥurma) is the mother (murḍi‘a = foster mother) or the father (ṣāḥib laban = possessor of milk). The renowned majority of Imāmīs believe that what is valid in the spread of sanctity in fosterage is the oneness of the consort (faḥl); and their reason is (based on) the traditions that cause specification and limitation of several generalities, such as the Prophet’s (S.A.W) ḥadīth, “What is prohibited through fosterage would be prohibited through parentage (nasab), too”, and the verse of the Qur’ān, ﴾your [foster-] mothers who have suckled you and your sisters through fosterage﴿. (Al-Nisā’, 23) The renowned disapproving majority’s statement is that of Ṭabarsī, the author of Tafsīr al-Bayān, and another group of the Imāmīs, who have not considered as a precondition the oneness of consort in the fosterage causing the spread of prohibition. The reason for this statement is the generality of ḥadīth, inclusiveness of the verse, and the traditions of Muḥammad b. ‘Ubayda. The critical review of the two viewpoints and their reasons reinforce the unrenowned majority’s statement.

Studying the nature of legal punishments (ḥudūd) and legal misdemeanors deserving these kinds of punishment – which along with discretionary punishments (ta‘zīrāt) are regarded as the most important criminal reactions to crimes in Islamic criminal law system – despite their importance (both in terms of the intensity of punishment and the special favor that the religious law shows towards preserving the targets being threatened by these kinds of crimes) are still of concern and seem to be revisable. One of the outcomes of this theoretical discussion is that the Imāmī jurists have provided different readings and manifold opinions in determining the number and the titles of the causes of ḥudūd. As its primary mandate, this research is intended to explore the scholastic reasons for this disagreement to figure out – after raising and analyzing the effective causes – whether the main source has finally been found to be in the opted viewpoint concerning the study of the nature of legal punishment crimes and their legal definition. Upon identifying the above-mentioned causes, it is to examine the important notion that the crimes deserving legal punishment (ḥadd) are necessarily quantified (maḥṣūr) and the list of these crimes are subject to scriptural ruling (tawqīfī) and are not increasable or reducible. It is attempted, in the present research, to prove the necessity to quantify the numerical range of the misdemeanors deserving legal punishment with reliance on a new definition consistent with the content of the legal texts of religious law that are implied from the legal nature of the above-mentioned crimes and by attesting to the general regulations and the legal restrictions placed on the process of criminalization. The argumentative approach of this article is trying to simultaneously provide the lexical meaning and the Qur’ānic-narrative concept of the word ḥadd, as well as the fundamentalism and purposefulness in interpretation of texts and paying attention to the philosophy of legislating legal punishments (ḥudūd). The new lawful changes in legal punishment crimes have also been critically and briefly analyzed in this research.

The relation between crime and sin is of much importance in religion-based criminal law systems. In these systems, sin against Allah have a pivotal role in realizing crimes. In the Imāmī School, the criterion for criminalization is committing sin against Allah; for this reason, this relation is of much more importance in this school than in others. The relation between crime and sin is worth noticing from two standpoints; on one hand, which crime is regarded as committing sin against Allah; and on the other, which sin is regarded as a crime. Concerning the second standpoint of this relation, the criminality of certain sins such as the sins deserving legal punishment, retaliated punishment (qiṣāṣ), and discretionary punishment have been considered as admitted tenets in Imāmī School. However, in respect to some other sins, about imposing punishment on whose perpetrator there is no specific clear injunction (naṣṣ), the jurists have different phrases with similar context based on permissibility of discretionary punishment in them. Some have extracted from those phrases a principle such as Al-ta‘zīr fī kull-i ma‘ṣiya or Al-ta‘zīr li kull-i ma‘ṣiya (discretionary punishment in [for] all sins). This principle has its proponents and opponents in Imāmī jurisprudence. Some have totally rejected it and some have absolutely accepted it and yet some others have added restrictions to it.
In this article, it is attempted to deliberate on the above-mentioned principle by gathering the statements of Imāmī jurists and critically reviewing their evidences.

Article 438 of the Islamic penal law considers as renewable the sentence of the executed person coming back to life in case of qiṣāṣ (retaliated punishment) due to observance of the resemblance (mumāthilat) condition and in case demanded by the claimant of blood, but it has kept silent concerning the legal and discretionary punishments like those administered for drugs crimes. The present article, while presenting the viewpoints and critical review of the arguments of the proponents and opponents of renewal of death warrant, tries to answer the main question brought up in this discussion as to whether or not according to the legislator there is a difference between capital punishment, which is regularly intended as death or loss of life, and the concept of disclaiming of life or death. Finally the chosen view will be that in case we believe that execution, like crucifixion (ṣalb), is typical (qasīm) of murder and the typical of an object cannot be the very object itself, then the above-mentioned verdict can be generalized to execution and suspend the re- execution verdict in legal punishments and penalties, except in premeditated instances.

One of the most important issues in jurisprudence that has to be researched is to find out whether the Islamic rulings are unique notions (mufradāt) without any correlation or collections with deep relations and forming an integrated system. The writers in this article maintain that there is a very profound relation among the collection of rulings, which in every field, when considered together, constitute an integrated system that enjoys unique principles and purposes, whose unveiling is among the ability, or better say the duties, of a master jurist (mujtahid). Thus, with an emphasis on the viewpoint of Shahīd Ṣadr, who is somehow considered as the innovator of this idea, we intend to explain the method of achieving the system. Shahīd Ṣadr’s idea has not been so far taken into consideration and elucidated as a pattern for jurisprudential systematization and the new perspective of the present writing is directed toward this goal. The system that is discovered by a master jurist needs to achieve authenticity and confirmation by the lawmaker, just as any ruling that he implies from the evidences. Although Shahīd Ṣadr has not discussed much in this field, we have proceeded to prove its authenticity in the conclusion of our discussion.

Given that the most principle reason for imitation (taqlīd) is the intellectual basis in “the reference of the ignorant to the learned” and, in one respect, reliance on one’s personal conjectures and bringing up an “intellectual basis” claim without (presenting) valid document on this subject has become a source of incorrect judgments, it is attempted in this article to delve into “the intellectual basis in the reference of the ignorant to the learned” through exploring the methods of acquiring the intellectual basis with the use of behavioristic method. The outcome achieved includes instances such as: distinction between “reference to the specialist” and “reference of the ignorant to the learned”, and regarding the needs of collective living and personal certainty as the source for the appearance of such sīra by the jurists. And finally, by analyzing the term taqlīd (imitation from legal authority) in jurisprudence and principles and comparing the outcomes resulting from behaviorism with “reference of the ignorant to the legal authority”, what can be attributed to the attitude of the intellectual is the no-devotional reference of the client (the referring person), which is something other than the connotative taqlīd

The ancients, following Aristotle, used to classify sciences according to their subject criterion. This criterion had created such problems as non-comprehensiveness of all sciences and not achieving a comprehensive classification of sciences, etc. For example, the problems of some sciences like theology, principles of jurisprudence, or jurisprudence and law, or history and geography, etc. do not enjoy such a relationship to their subjects and not all their problems signify the inherent accidents of their subjects. It was here that some scholars such as Muḥaqqiq Khurāsānī and many of the legal theoreticians (uṣūlīs) after him, resorted to “goal” (ghāyat). This viewpoint, that has been formed because of the deficiency of the Aristotelian epistemology pattern, has itself suffered from deficiencies, which has prompted the scholars followed by the author of Al-Kifāya to undertake some modifications on it; some consider the (subject-oriented) Aristotelian epistemology pattern as more efficient; and yet another group present a third pattern apart from these and even find tendency toward eclectic and conventional approaches.