فصلنامه فقه و اصول
پیاپی 102 (پاییز 1394)

The essential difference between hadd and ta‘zīr has long been accepted in Islamic penal system. Based on a study of the holy texts and the statements of the scholars it can be asserted that the rule according to which ‘the type and size of the hadd is defined by the legislator, whereas the type and amount of the ta‘zīr would only be determined by the Islamic ruler’ is not comprehensive and lacks universality. Hence, the jurists have not reached a consensus about crimes including sexual intercourse with the wife in Ramadan, apostasy, corruption on earth, and etc. in terms of their hadd or ta‘zīr punishments. Therefore, according to the rule ‘Ta‘zīr punishments should be lower than the hadd’, it can be stated that for the ta‘zīr offenses similar to hadd violations, the size of punishment must be smaller than the hadd. However, this rule does not apply to the new crimes. Consequently, based on the rule ‘Ta‘zīr punishments are those decided by the rulers,’ and due to the universality of the term ta‘zīr, and for the best benefit and interest of the Islamic society, and with the goal of eradicating corruption from the earth, the Islamic rulers can freely determine the type and amount of punishment.

Belief in the lack of authority of ‘a single report’ is one of the most basic doctrines of Ibn Idrīs in the Principles of Jurisprudence, and this same issue has caused his ideas and methods of jurisprudence to be different from those of other jurists, and even in some cases has led to irregularity and scarcity. He does not consider as authentic those traditions that have not reached frequency (tawātur) or those lacking evidence; since he believes that such reports do not bring about knowledge. He defines this thesis as an essential element within Imamiyya jurisprudence. The thesis has caused some to ascribe to him the failure to follow the reports of the Ahlul Bayt. But according to the study, this attribution is not right because Ibn Idrīs has referred to many non-frequent (āhād) reports as well as frequent ones (the mutawātir). It can be said that in his view ‘single reports’ are divided into two types: a single report which is confirmed by other evidences, and such a report is certain and can be practiced; and a single report without confirmation and cannot be practiced, even if its narrator is reliable. As a result, according to his theory, the truth and accuracy of a single report must be measured in its relationship with other reasons and arguments.

Undoubtedly, legislation in any governmental system is based on its intellectual – philosophical foundations and special ideology. Hence, in an Islamic society, religious rules must be criteria of legislation in order to make those laws authentic and valid for the people. In this research, we have reviewed the historical past of the argument shortly, and have studied various possibilities for criterion fatwa in legislation, i.e. jurists’ common fatwa, fatwa based on caution, fatwa of the supreme knowledgeable jurist, and any jurisprudential fatwa. Thus, we have come to the conclusion that with regard to jurisprudential foundations, the fatwa of the supreme knowledgeable jurist is closer to authority and authenticity. Then, with reference to the criteria of ‘Superior Knowledgeability’ in political jurisprudence, we have reached the conclusion that in an Islamic state, the superiorly knowledgeable jurist is the same ‘ruling jurist’ testified by the elites of the Islamic community for his knowledgeability in conducting the affairs of the society based on Islamic measures. In the final step and according to the above-mentioned, the procedures available in the Islamic Republic with regard to criterion fatwa in legislation have been explicated and explained. The verdict and fatwa of the ruling jurist becomes the criterion for legislation in the Islamic state, either directly or through a secondary analysis and based on a delegation enshrined in the constitution (the delegation to the assembly in taking any jurisprudential fatwa and the delegation awarded to the jurists of Guardian Council in the exercise of his jurisprudential opinion). Therefore, the legitimacy and authority of the laws of the Islamic Republic are ultimately attributable to the verdict of the ruling jurist.

How to deal with the prohibiting forbiddance in the context of trade is the difficult mystery of forbidden professions (makāsib muharrameh). Some would consider it as an autumn breeze, impeding the thriving transactions of the market; others perceive the encounter of the forbidding prohibition with trade as a collision of two chemicals getting mixed with each other and producing a third material; still others think of this contact as a bomb hitting the bottom of a building totally destroying it and disintegrating its parts. The methodology to identify the prohibition of impermissible trade is the key first step in the study of forbidden professions, including recognition of the subject ‘the prohibition of forbidden trade’. On the one hand, jurists believe that legally prohibited acts such as wine trade or transactions based on usury are invalid and ownership transfer is thus not achieved; on the other hand, most jurists believe that the obligatory prohibition of these legal exercises entails a specific and independent prohibition. Thus, the challenge of the problem is that it is not clear how a transaction that is invalid and in fact has not happened can ever be forbidden; especially knowing that according to some views, the mere empty give and take does not entail prohibition. The present paper seeks to mention and analyze and critique the viewpoints of jurists. It also aims at collecting prohibited legal actions and relying on Qur’anic verses it tries to derive a correct methodology for identifying independent and non-independent prohibition.

Signed ordinances are a major part of religious ordinances having existed as normative before the institution of divine canonization and having been approved without any or with slight modification by the legislator and having entered the canon law. Some neo-mu‘tazilites believe these ordinances are related to the praxes of the time of legislation, and by the disappearance of those customs they have been canceled in consequence. In cases where the norm is the main element of the subject of signed ordinances, those views are right. But normally, custom is the background of issuance of religious rulings and not the basic element of them, which in itself requires reasoning. Additionally, in cases where the custom provides the background of issuance of ordinances – which is the case with many signed rulings – the change of ordinances depends on the change of the customs only when the legislator does not find approval and decides to rely on reported attitude of the intellectuals. This paper will demonstrate that the nature of signing (approval) in signed ordinances is the approval of the legislator; since in the process of signing the legislator approves a ruling similar to that of the intellectuals, and for this reason, the validity of the verdict shall not be challenged by the disappearance of the praxis.

In Islamic jurisprudence we face phrases such as ‘Unforgivable in continuity (survival, sustainability) is not unforgivable in the beginning’ whose context suggest that this is considered by scholars as a known and accepted rule. But, after examining the traces of the phrase in the books of jurisprudence and rules of Islamic jurisprudence, there seems to be no consensus as regards the authentic origin of this expression and even its independence. Some have mentioned this phrase in relation to the rules ‘Rejection is stronger than removal’ or ‘The follower follows’ or ‘The impediment is created, and some have called it as an independent subject. Finally, after analyzing and examining the statements about this phrase and providing some arguments, it seems that as a result we can consider it not as following the three rules, but as an independent rule; on the basis that what is prohibited and forbidden in the beginning, in continuity its sustainability and survival shall not be prohibited.

In the popular view, the fulfillment of promises is recommended, apparently its reason being, in addition to consensus, some traditions. However, all of these reasons appear to be distorted and unreliable. On the contrary, we find a lot of traditions and evidence which entail the necessity to fulfill promises.