مجله فقه مقارن
پیاپی 6 (پاییز و زمستان 1394)

One of the most genuine Islamic thoughts in which all Muslim schools of law believe is the belief in Wilayat al-Faqih (guardianship of the Islamic jurisprudent). This shared belief itself is rooted in another principle discussed in all schools of jurisprudence; namely, the idea that the legitimacy and integrity of an act is subject to the belief in Wilayah. No matter if it is the act of an individual person relating to himself/ herself or to others or the act of all individuals in a community, a whole society, the act must be carried out with the belief in Wilayah. The presence of a person who can run the society with Wilayah is essential. Necessarily or preferably, the person who takes the responsibility to manage public affairs must be a Faqih (Islamic jurisprudent). As a result, the ruler of a society in Islamic law has the two features of Wilayah (guardianship) and Fiqahah (jurisprudence), with the ruler called Wali al-Faqih and the government called Wilayat al-Faqih.

In their books on Islamic jurisprudence, Imāmīyya jurists consider the concept of reason/ rational argument along with the Book of Allah, the Sunnah and Consensus as various ways for inferring Islamic rules, unanimously agreeing that reason/ rational argument can be used for reaching religious rules. The use of rational argument is mainly discussed under the categories of Mustaqillat Aqliyah (the independently rational), Istilzamat Aqliyah (the dependently rational), non-literal proofs; proofs other than those which are in statements, such as the Sunnah and Consensus), Tanqih al-Manat (extraction of the underlying reason) and Fahm al-Maay’ir (understanding of criterion). However, when it comes to the use of analogy – particularly of the inferred type – to establish religious rules, these jurists defy rational argument definitively, arguing that it cannot infer the underlying reason, after making references to Islamic narratives that forbid acting based on analogy. But we are faced with a critical question: How is that reason/ rational argument, with all its importance and breadth, is rejected when it comes to analogy whereas it is the basis for inferring religious rules in the above-mentioned cases, and perhaps in some other cases as well, at least for Mujtahids? The present undertaking emphasizes that the underlying reason of a religious rule, as inferred by and as the product of rational argument which is a valid source for inferring rules, can be used as criterion elsewhere too and it, thus, should not be devalued against a rule which is established independently by pure reason. As a result, analogy as apparently refuted in the Imamiyya School should not be read in the common sense of the term. Rather, textual arguments that refute analogy signify a completely different thing.

In Imamyya jurisprudence, Muharaba (fighting; hostility) refers to the use of weapons for scaring people. In Sunni jurisprudence, some define Muharaba as banditry and the creation of insecurity on roads and some others define it as the creation of insecurity, fear, corruption and murder on earth by weapons, including chemical ones. In Quranic verses on Muharaba as well as in textual arguments by Sunni jurisprudents, there is no statement that makes Muharaba conditional on the use of weapons. There are also references in Islamic Hadiths narrated by Imams that refute the dependence of Muharaba on the use of weapons. Apparently, the main condition for the realization of Muharaba is the presence of force, violence and disturbing the public security. However, there are references to the use of weapons in some arguments, and it is justified as a dominant and obvious instance of Muharaba insofar as it involves violence.

Making the pure things lawful and prohibiting the evils is one of the principles of Islam. It is for the same reason that Islam considers the belief in unity of God as a Wājib (an essential part of Islamic faith) and forbids all the different forms of polytheism. This principle is observed in all spheres of human life but if it seems otherwise in special cases, there is the Hikmah (Wisdom) of God behind it. Resorting to certain reasons, some maintain that Islam has forbidden art in general and music in particular. But the Shaare al-Hakim (the Wise Law-maker) adheres to the principle that the order regarding every issue must be decided based on its advantages and disadvantages. Art is an advantage inseparable from human life. Art is even encouraged by Islam in cases where it can contribute to Islamic faith and assist Muslims. However, art is sometimes used in unfavorable ways and in different conditions against Islam and humanity. The present study firstly defines music and ultimate religious purposes of practical regulations (Maqasid al- Sharia) and then considers the relationship between the two. By analyzing texts on this issue, the study concludes that Islamic orders regarding music are not one and the same in all cases. Furthermore, the study uses descriptive and analytic procedures in terms of methodology.

One of the most important issues of our time in the field of medical law and jurisprudence is amputated limb/ organ transplantation after the implementation of Hadd (prescribed Corporeal Punishment) and Qisas (Retaliation), which is a matter of controversy among jurisprudents. Among the causes of this disagreement are references to texts with uncertain indications (Zanni al-Dalalah) and conflicts among ultimate religious purposes for practical regulations in the expression of Islamic rules. Furthermore, among the objectives of punishment are the disciplining of the convict, relief for the plaintiff and security for the society. Social security is the ultimate purpose of Hadd and relief for the plaintiff is the primary reason for the implementation of Qisas. Differences in the type of argument and attitude in preferring certain purposes over others have led to the emergence of three perspectives in this context: One group advocates the absolute prohibition of amputated limb/ organ transplantation including Imamyya, Hanbali, Maliki and some contemporary schools of jurisprudence. Another group advocates the absolute permissibility of amputated limb/ organ transplantation including Hanafi, Shafii and some contemporary schools of jurisprudence. The third group divides rights into Haq al-Lah (the rights of God) and Haq an-Nas (the rights of people), advocating the permissibility of transplantation under Haq al-Lah and also under Haq al-Nas but with certain conditions. The fatwa of the Jeddah Fiqh Academy and some temporary schools of jurisprudence fall into this category. Evaluations of the reasons posited by different perspectives in light of general Islamic principles and purposes bring us to the conclusion that we must differentiate between Haq al-Lah and Haq al-Nas in this issue such that amputated limb transplantation is not permissible under Haq al-Lah (Hadd for theft or Muharaba) but it is permissible under Haq al-Nas (retaliation for amputated limb/ organ) conditional on the plaintiff’s consent or limb/ organ restoration.

Li’an (Divorce by Curse) is an established rule in the legal system of Islam whose formalities and regulations are stated in detail in the Holy Quran and are addressed separately in the books of Islamic schools of jurisprudence. The subject of this rule is a husband accusing his wife of betraying him. That is why it is related with a whole range of family crimes. Despite little attention to this Islamic rule in the Constitution of the Islamic Republic of Iran, it is necessary to re-examine the issue according to current social realities insofar as it is an established rule in the legal system of Islam and is directly addressed in Quranic verses. Family crimes make up a high percentage of criminal cases in Iran most of which are due to cynicism and betrayal in the family. The author has aimed at addressing and explaining Li’an’s potential in reducing such crimes because it can prevent them by removing the psychological factors behind every crime.