فصلنامه جستارهای فقهی و اصولی
سال دوم شماره 4 (پیاپی 5، زمستان 1395)

Mughal Empire mastery in the political arena led to the Islamic world change of attitude and consequently change of Imāmiyeh jurisprudents’ attitude change in the issue of government and made them consent the pattern change of government from “Allah’s Successor” to “Islamic Ruler”. Before Mughal attack, all Imāmiyeh Shiite jurisprudents agreed upon the negation of legitimacy for any other government except the Infallible Imams’ government and any limited cooperation with such governments were merely allowed in case of obligation. Thus, this principle was not violated and this change of attitude lead to the mastery of theological viewpoints on the Imāmiyeh Shiite jurisprudents views. However, in the area of non-Muslim Mughal mastery, the factors of Imāmiyeh Shiite jurisprudents distance from central power and their reluctance to confirm and cooperate such an empire were really degraded and they accepted to shoulder the burden for carrying out some of the duties of infallible imams in the issue of ruling the society. They changed the definition of the term “Justice for Islamic Rulers” and directed the present condition of the time in favor of “Confirmation of Political Rulers’ Legitimacy” discourse.

Cleaving to the general in cases where specific reasoning is brief is regarded among the most important issues Osuli scholars have raised. The popular method for encountering this phenomenon is that several countenances for this issue are proposed and then all of these countenances are studied. This paper discussed the theory that before investigating the mentioned countenances, some fundamental principles should be examined, as confirming some principles in Osul science causes that cleaving to the general in all countenances is allowed unconditionally, while some others are not and the difference in the raised countenances is merely meaningful due to some basic principles. Therefore, the current method for investigating this issue seems not to be correct and demands a drastic revision.

As its nature depicts, will is considered among the rare concepts raised in central and general topics of different social sciences such as law. Analyzing the legal identity of will is infeasible given it is not studied in other sciences, namely, philosophy, Islamic theology, psychology and ethics. Specifically, we need to know that there is a significant relationship between the role of will in such sciences and the legal and jurisprudential issue of will. Analyzing will with the help of such sciences is a novel phenomenon. Moreover, such an approach would end in a) getting to know the confinement of the will theory with the help of an ethical and a philosophical analysis of will b) a better statement of rules and effects of will and analyzing its defects with the help of a mental analysis of the will, and c) justifying the stablished separation between intention and satisfaction with the theological analysis of the will; an approach which states will in its confinement framework comprehensively in one way and will not approach will vs. ethics and other mandatory expediencies such as order as an omnipotent phenomenon on the other hand, contrary to the broad and dominant perspectives of the supreme Islamic jurists.

As the most fundamental unit of the society, the unit of family plays a significant role in the prosperity of individuals and society. Thus, the necessity of giving solutions for protecting the family institution from social problems and corruptions is of great importance. One of the punishments stipulated in positive law with respect to the crimes against family institution is the imprisonment punishment whose consequences signals that there is no harmony between the philosophy of charging this crime with different cases which may inherently end in causing crises and intensified problems. To spot the above problem, the present paper has adopted a descriptive-analytical research method to mention the consequences and effects of imprisonment, especially regarding the family crimes. To meet this end, jurisprudential indices and documentations (in light of Shariah objectives and aims) were scrutinized. The results of the study revealed that regarding the troubles of imprisonment, the law-maker had better to reconsider the current law and does it best to lessen imprisonment from family crimes and to replace alternative crimes.

Presumption approximate to knowledge is the firm belief to the knowledge which leads to the certainty and calmness of the soul. This kind of presumption is mentioned under different titles such as certainty presumption, firm presumption, custom certainty, certainty knowledge, and common and custom knowledge by Islamic jurists and are being excluded from the verses of presumption. Albeit it does not enjoy a natural authority, it has been proven by the indications of the Book, the Intellectuals’ Conduct, the Wisdom, and the Priority Analogy. To obtain such a knowledge, some kinds of means and sources are as expansion, consensus, knowledge of the things, and successive transmission. Presumption approximate to knowledge has found different applications in jurisprudence. For instance, it could be used to prove authenticity of different cases such as sound tradition, the inner and outer contradiction, purely-slaughtered animal purity, knowing the Qiblah direction, the place of salat prayer, proving the witnesses’ justice, and emulating the branches of religion, as well as other cases such as judicial problems.

One of the rules ruling over diyyat- compensation payable in case of bodily harm or homicide- is the principle of the diyah for the single or dual body members which are negligently interpreted as odd and even body members. The above-mentioned principle holds that harming any even-body member deserves a full blood-ransom and given somebody harms one of these members, he deserves to pay half of the full blood-money, except the diyah for the two testicles. According to some of Imamiyah jurists, the diyah for the left testicle is two-third of the full blood-money while the diayah for the right one is one-third of it. This view is accepted by the lawmaker of the Islamic Penal Code and is approved and mentioned in the article 665. Having studied the different aspects of this issue and having investigated the five-fold sayings related to this subject, the authors of this paper believe in no distinction between the left and right testicle and argue that each of these testicles enjoy half of a full blood-ransom equally. However, Mukhtar’s saying refers to specific indications and accords with the rules ruling over diyat.