نشریه فقه و مبانی حقوق اسلامی
سال پنجاه و ششم شماره 1 (بهار و تابستان 1402)

Devotional decree is an idiom used in theological sciences, principle of jurisprudence and jurisprudence and is mostly used as opposite to a decree having a cause (ḥukm-i mu‘allal) and it has different meanings. In the more preferred definition it is a decree that does not have an apparent cause although its wisdom might be apparent. The aspect of a decree being a Divine Right, non-vicariousness of problems, exclusivity of proponents, and certainty of denotation are the properties of devotional affairs. Many different topics and problems have been raised regarding this topic and the differences in this matter have impacted different jurisprudential subjects. This article has been written with a descriptive-analytical method and is of content analysis type and is based on Sunni legal and jurisprudential sources. The originality of devotedness (ta‘abbud) in devotional precepts, principality of causation in non-devotional precepts, the presence of wisdom in devotional precepts, affiliation of hesitant precepts in caused and of-rescannable-meaning precepts, the excellence of compliance of devotional precept based on the faith levels and distinguishing the worshipper  from the Worshipped, not using conjecture in devotional precept and the credibility of Ṣaḥābī sayings regarding devotional precept are among the preferences of this article.

Milkiyat-i ānī (instant ownership) which is discovered by wisdom and the support of the narratives and other principles is an ownership that cannot survive a moment later. Despite the definiteness of this ownership for the Imamiyah jurists, it has not been studied independently and comprehensively. The present study is a step to fill this gap of integrated attention to this subject by discussing the features, reasons, and exemplification of instant ownership by a descriptive-analytical method. In this regard, it would be beneficial to scholars in some juristic fields, especially in cases in which this ownership is considered the exclusive way for correction. The results indicate that the instant ownership, with the assumption of the absence of a barrier, is true and has an anteriority to its cause. It is also related to some branches of jurisprudence, such as sale, transaction by conduct (mu‘āṭāt), debt, endowment, and inheritance, and indicates the exigency and gathering of opponents as a document of this type of ownership.

Organ donation is a newly-raised legal issue with double importance and many challenges. What has been achieved in this article is an alternative opinion different from the opinions of other Shi'a jurists. In this research, relying on the necessity of preserving the respected soul through the four evidences of the Shari'a rulings, it has been proved that the organ donation of brain-dead patients and their organ transplantation is obligatory to preserve the respected soul who needs a transplant to continue living. This ruling is deemed as obligatory while the opinions of all Shi'ite jurists have been focused on the issue of permissibility or prohibition of organ donation. While investigating the doubts that have been brought up regarding the ruling for the permissibility, this research degrades the evidence of the claimants of the prohibition of organ donation. It is hoped that this jurisprudential survey will save many lives and become an example of the verse 32 of Sūrat al-Mā’ida, "And whoever saves a live is as though he has saved all the mankind.

The following article was influenced by field studies about one of the most important causes of disputes leading to divorce, that is, men's sexual dissatisfaction. In jurisprudence and legal works, the minimal concept of "compliance" is mentioned to regulate the marital relationship. Despite this, studies show that according to the current situation and social developments, the concept of "compliance" is often not enough to regulate the marital relationship. Accordingly, a more suitable platform should be sought. The present research has been intended to answer this question by using the descriptive-analytical method and relying on library sources. In this regard, it first reviewed the concept of "compliance" and then examined the concept of "proffering" and the relationship between the two. In the following, it has presented the hypothesis of replacement or obligatoriness of proffering and compliance based on jurisprudential sources. The result of this research is the confirmation of the hypothesis of the article documented in reliable Islamic sources.

Sunna is the second source of receiving rulings and doctrinal knowledge, and it is extremely necessary to protect this basic pillar in understanding religion and determining the effective components in validating traditions.
The history of hadith has witnessed a lot of research in the works of traditionists about the effective criteria in authenticating hadith. "Practical reputation" and its compensatory role regarding the weakness of hadiths is among the important criteria that has a significant contribution to this authentication.
Knowing the opinion and life history of great scholars regarding the influence of reputation in strengthening the hadith will be a very good guide in identifying the position of its issues. Accordingly, some research has been conducted in this field regarding the views of some jurists, including Vahid Behbahani and Imam Khomeini. With a descriptive-analytical method, the present article has taken a look at the role of practical reputation as a compensatory feature (jābiriyyat) for the weakness of hadiths in the works of ‘Allāma Majlisī (RA) such as "Biḥār al-Anwār", "Mulādh al-Akhyār" and "Mir‘āt al-‘Uqūl", a research which has been missing so far. The outcome of this research is to prove the valuable status of the practical reputation of the jurists in strengthening the hadith from the viewpoint of ‘Allāma Majlisī (RA), which is an approach based on following the method of the earlier companions.

If the nature of resignation from office is well explained and if the conditions for its realization are extracted in the form of specific and inclusive rules in relation to various posts, it will have different effects than dismissal from office. In this research, with a descriptive and analytical method, after explaining the nature of resignation from office, three conditions for the conclusion of an appointment, the existence of primary competency in the person in charge and its termination during the tenure were extracted as the conditions for the realization of automatic dismissal from the office which can be proved through the proofs of confession, testimony of righteous persons, isolated tradition (khabar al-wāḥid). After confirmation and proof of resignation from office by a competent institution such as a court, the decree issued as per resignation from office has a declaratory nature and the statutory effects of non-contractual obligation and invalidation of legal actions and mandatory effects of the prohibition of continuation of tenure and punishment in case of summation of the elements from the time of realization of resignation from office will ensue and be prosecutable.

One of the issues of family law that has more or less undergone changes over time is the issue of the husband's sexual enjoyment and the necessity of the wife's compliance. The husband's desire for his wife to become more beautiful with such demands as nail implants, jewel implants, and even cosmetic surgeries and prosthetics, has prompted special conventions in this field in some regions or social classes. The question is whether the husband's right for enjoyment and the wife's obligation to comply with these demands make any change in the variety of conventions, or is there a legal rule that precedes convention in the matter of enjoyment? If there is a legal matter to refer to convention and local culture, in this matter, is it conceivable for the wife to have a duty by making preparations in the form of tempering with the body? The present article examines this issue with a descriptive-analytical and a library method, maintaining that since the laws in family jurisprudence are determined according to the "popularity" of matters, in such sexual requests, only popular cases, i.e., what is in accordance with reason, morality, shari'a and convention necessitates compliance and obedience.

There are three areas of difference in opinion with regards to explaining the issue of fuqā‘: 1. The primary material. 2. Intoxicating nature. 3. Boiling. Since drinks such as beer, non-alcoholic beer, and malt drinks are on sale in the market nowadays, all of which could potentially be considered as fuqā‘, and there is no coherent research which has been done on this topic, it seems necessary to write an article in this regard. In this article, which was written using a descriptive-analytical method and library data, after analyzing the documents, it was concluded that the concept of fuqā‘ was not the same in different time periods and places. Rather, that which is forbidden in the religious texts is drinking "an intoxicating liquid made from barley" with the condition of that liquid boiling during the process of alcohol production. Therefore, non-alcoholic beer and malt drinks are not instances of fuqā‘.

The pattern of criminalization and punishment in jurisprudence follows basic rules, principles and ideas, some of which are specific to some crimes and others are executable in all divisions of criminal jurisprudence. The principle of ḥamā - with the concept of applying the prohibition decree from the center to the surrounding environment - is considered as the most important principle in the field of preventing major crimes and supporting value patterns in Islamic society. So far, the jurisprudential and legal analysis and pathology and the challenge-seeking of this principle have not been dealt with. The main issue of this article is the basic challenges of the jurist and legislator in sanctioning and penalizing (criminalizing) permissible acts based on this rule. If utilizing this rule as the basis of criminalization, despite its narrative theoretical nature, is documented without considering some paralegal and extralegal suppositions, it will pose serious challenges for the philosophy of Islamic and conventional criminal law and some of their doctrines; challenges such as the confrontation of the principle of ḥamā with rights and freedoms, the theoretical contraction and expansion, the fundamentals of the principle of ḥamā, the principle's incompatibility with the principle of minimalism in criminal law, and the principle's resulting (intāj) in the inflation of criminal laws. In other words, although the exigency of implementing the principle is available, in some cases its obstacle is not missing. Therefore, the necessity of discipline in adhering to and citing this principle is fully confirmed.

Inheritance is sometimes by kinship and sometimes through relation by marriage (sabab). However, the Imamiyyah jurists believe that if a dead person has an heir who enjoys two reasons for inheritance, this person can take both of the shares, no matter whether these two or more reasons are relation by marriage or by kinship, or both or all the reasons are either kinship or marriage, provided that none of the reasons is preventing the other. Otherwise, the heir would only inherit based on the reason which prevents other possible reasons. In this paper, an analytical-descriptive method is used to prove that according to the existing evidence, inheritance of the heir for two reasons is specific to those cases in which one reason is relation by marriage and the other is by kinship. However, in cases where both reasons are by kinship, the heir would inherit both shares only in case the relations by kinship are considered as conventionally separate and distinctive.

Sometimes, the transaction party, when entering into a credit transactions or using someone else's property, intends not to pay the price. The intention of non-payment contradicts with the obligation to pay, which is a direct or indirect effect of barter transactions. Hence, the question arises as to whether such a transaction is valid or not. This issue has been raised in the field of jurisprudence transactions and also in the acts of worship that such contracts and transactions are somehow related to, such as ablution, major ablution (ghusl), and prayer, in which the permissibility (ibāḥa) of water, as well as the place and clothing of worshiper, is a condition for the validity of worship. In the case of transactions, the intention of non-payment may cause the transaction to be void, the receiver's authority to be illegitimate, and the transformation of quantum valebant to quantum meruit. Using descriptive and analytical methods and library tools, this article aims to explain and justify the theory that favors the nullity of a transaction in which the debtor does not intend to pay the debt.

"Islamic Law" is a relatively new concept for Muslims. This concept provides a new formulation of Islamic jurisprudence. One of the main platforms for the formation of this concept is the ideas of the Orientalists. Joseph Schacht is one of the orientalists who has specifically explained what "Islamic law" is. What Schacht has done is the creation of "Islamic law". "Islamic law" in Schacht’s thought is the product of reappraisal of jurisprudence in the framework of historical sociology. The question of the current article is: What challenges does this new formulation face in terms of validity and reliability in explaining jurisprudence? The present article is an attempt to explain the development of this new matter in the three areas of methods, sources and issues in Schacht’s thought (theory, approach and research processes) and a glance at some of its weaknesses in explaining jurisprudence. To seek answers, the present paper has used the descriptive-analytical method.