فصلنامه جستارهای فقهی و اصولی
سال سوم شماره 3 (پیاپی 8، پائیز 1396)

Jihad of Invitation is among the tree principal theories in the Primitive Jihad Philosophy which has cultivated the support of the majority of pioneer jurisprudents. According to this theory, the Primitive Jihad is considered a war pursuing the cause of disseminating and improving the ideology or religion aiming at inviting others to Islam which would be continued unless either pagans are killed or converted to Islam. Utilizing an analytic-descriptive method and by making a report from this theory with respect to its Qur’anic and traditional indications, the present paper is to authenticate the originality and the main reason for its transmitive issuance based on Shite and Sunni references. Likewise, the authors have criticized the adherence to obligation of fighting absoluteness and contend that basically, the Holy Prophet has not stated the fighting and war precepts and rules but rather he has warned that Muslims’ properties and souls must be safeguarded. Another section of this theory criticism deals with the tradition authority and its contradiction with other Qur’anic and traditional propositions assuming that it indicates the sought object

In confrontation with the standpoint of positivist school of thought who believe in “the perpetrator”, there are two spectrums of Islamic teachings: a) human beings enjoy a pure nature and he is responsible for the purposeful and intentional behavior he reflects, and b) bliss and adversity lie in human’s nature and according to some rulings, an individual is deprived of some rights and advantages. The teachings of the second spectrum are in line with the positivist point of view. One of the challenging instances of religious status a person may face with is the birth from the illegitimate intercourse. The majority of jurisprudents believe that a “bastard” is deprived of some social rights such as the issue of inheritance from his/her parents. Thus, such a person does not inherit from his parents and vice versa. This paper has studied the rule of a bastard’s inheritance by analyzing and criticizing different proposed proofs using a descriptive-analytical method and a problem-solving perspective. It is conclude that none of the available documentations of the customary injunctions given by scholars does not clearly prove that a bastard cannot inherit his/her parents, but the majority of Qur’anic verses, transmitted traditions and rational indications have clearly stated that such a person can inherit his parents. However, whether parents, namely father, can inherit their bastard offspring or not is strongly under question.

Ibn Jonayd, whose name is mentioned alongside the name of Ibn Aqil as Qadimayn in some references, is among the jurisprudents attributed to believe in analogy by some precedent and recent scholars, albeit no works of him has been at hand till now. The recent thinkers’ reports are made based on the ones they have received from the common quotations presented by the precedents. However, all of them know him as one of the most outstanding jurisprudents of Imamiyeh. Ayatollah Sistani is one of the contemporary jurisprudents who have investigated his conduct. By orienting his works, the authors of the present paper have investigated some books such as Kashhi’s Rijal which contains the trend of Imams’ companions and the methodology of deduction given by them. Attempting to define analogy, the authors have tried their best to subtilize such an attribution and to clarify the instances which lead to the misconception of analogy. It is concluded that Ibn Jonayd could not have been a jurisprudent practicing analogy as is perceived today and such a conception is vigorously skeptic.

Ma’khuz bissaum is a term meaning that the goods delivered by the customer from the seller for examining their quality and price. Jurisprudents differ on the state of being guarantee for security for Ma’khuz bissaum, so that some of them believe that the customer is not surety for the goods based on the jurisprudential principles of “non-security of the trustful” and “the principle of clearance from obligation”. However, the majority of jurisprudents consider such a person as warrantor by the virtue of “Alalyad rule”, while some others have no idea as they have not any choices among the available indications. Using a descriptive-analytic method and by studying the indications and statements given by scholars and jurisprudents, the authors have investigated jurisprudents’ opinions. It seems that Ma’khuz bissaum leads to giving back the same goods or their alike in spite of having permission from the owner, but such permission does not pledge the security according to the intellectuals’ perception and custom. As seizing the object by the customer is not at his discretion and due to the fact that he has captured the property and based on the “rule for caring and cautioning Muslims’ properties”, the customer is obliged to return the merchandise to the owner.

Rule of Jabb is among the current rules of jurisprudence entries such as saying prayers (salāt) and legal alms (zakāt). This rule deals with an infidel who has converted to Islam which has already committed sins or has reserved some rights. Thus, according to this rule, such a person’s previous sins are eliminated from the moment he has converted to Islam.
Addressing the history of the rule and all the respective rights according to this rule such as God’s rights, peoples’ rights, and their joint rights, the authors have mentioned the instances of the rule’s inclusion with respect to each of the above mentioned cases. The jurists contend in the rule’s inclusion towards God’s individual rights which is nullified based on the rule. The expression of God’s nullified rights is given due to the fact that the pagans have to fulfill their obligatory acts during their infidelity period as Muslims do their obligatory acts. Hence by converting to Islam, infidels do not need to compensate the missed religious rituals. Likewise, this rule includes the common rights of God and human such as the One-fifth (khums) and the Legal alms (zakat), but excludes peoples’ individual rights. This rule includes the obligatory precepts and certainly excludes some parts of conventional and situational rules

By the virtue of the Jurisprudential Rule of Taslit (ownership and mastery of people over their properties), every owner has right to seize and exploit the property he owns except in the cases the law has excluded. (Article 30 of the civil code) Note 24 of article 55 of the Law for Municipalities is one of such exceptions by virtue of which establishing any enterprise in non-commercial districts is forbidden. In the ending section of this article is mentioned that establishing a law firm and such institutions by the owner is not considered as a commercial act. The content of this article specially the ending section has some ambiguities which have led to some problems in practice. Using a descriptive-analytical method, the authors try to answer the following question: does establishing law firm refer to founding a business enterprise by commercial purpose? They have studied the relationship of the act underwritten this article and the one above it. In the next step, the concept of any disagreement with the ending section of the article (owner bond) is investigated and it is proved that they are meaningless. In the proceeding, the concept and instances of the term “non-owner” which is in opposition to the bond term “owner” in the ending section is investigated which means returning the case to the “engineering office” or at least they consider the law-maker’s injunction on the law firm insufficient. In the concluding part of the paper, the judicial procedure and legal thoughts concerning the contents of the article by using basic jurisprudential principles and current regulation prove that law firm could not be considered as a trading office and the lawyer is not a merchant. Thus, establishing a law firm in a non-commercial property by the owner and tenant does not signify its being commercial.