فصلنامه جستارهای فقهی و اصولی
پیاپی 1 (زمستان 1394)

Paradigm of personalism has prevailed the Contemporary Principles of Jurisprudence. This paradigm is located in a linguistic and social source which roots in Arabic as the language of Islamic sciences. In Principles of Jurisprudence, the imperative structure is analyzed with the ideology of individuality, so that while the mawlā (commander or guardian) commands a person to do something, in fact, the personality and individuality of the commander is associated with the commanded. Given the servant refuses to do what is commanded by his mawlā, he has disrespected and disgraced his mawlā. In the individuality paradigm, the criterion for punishment infliction on disobeying the mawlā›s command and disrespecting him is the servant›s rebellion against his mawlā and disgracing him, which is performed based on the practical wisdom interpretation.
aq al-tā‘a theory as a distinctive sample of paradigm of personalism is criticized from this perspective. This paradigm is in line with social class idea and impedes the legal thought growth in Principles of Jurisprudence. Likewise, based on the intellectual approach and evaluation of the probability value, some criticisms on aq al-tā‘a theory are leveled and a proposed notion in the credibility of probability is referred to.

The Science of Principles of jurisprudence plays the most important role in provision of applicable jurisprudential rules. However, the issues of principles of jurisprudence from the perspective of practicality and functionality are not placed in the same level; some are so practical while others are less or not practical. In the texts pertaining to principles of jurisprudence (uṣūlī texts), there are lengthy discussions occasionally, which are fruitless in jurisprudence, according to uṣūlī scholars. To propose the subjects in this field, we have to revise its related subjects so that the fruitless issues are removed or possibly would turn into useful subjects. The Religious Law Reality is among such subjects, which is fruitless as it goes by present. Nonetheless, this subject can be proposed from another angle so that it turns to one of the most fruitful subjects in this field. This paper attempts to study some terms such as saying prayer, legal alms, charity, debt and usury using the aforementioned approach by proposing the process of discussion.

As the written literature of Shī‘a Principles of Jurisprudence suggests, by the pass of time, namely in the recent century, different questions on the issue of presumption of continuity (isti āb) have been raised, each of which has opened a new file of discussion or classification on isti āb. Clearly, the performance of isti āb rests on the issue of skepticism on the continuance of the one who believes in the presumption of continuity called musta ab. Whether the continuance of a musta ab who is doubted should bear the present continuity or would the virtual continuity suffice as well? This question has raised a new issue in the recent century known as virtual isti āb. The quality of Shī‘a Principle of Jurisprudence Scholars› perspectives on the aforementioned question and their answer to this question frames the key fundamental research question of this study. This study is to discuss this issue deploying a library research and descriptive-analytical methodology.

Lately, some people have misused some parts of Imam Khomeini’s sayings expressed in some of his jurisprudential books on the permissibility of backbiting the opponents in general, and on sanctity of backbiting the believers in specific. They attempted to injure Imam Khomeini’s reputation and to deteriorate the pure Shiite teachings. Revisiting Imam Khomeini’s opinions, the present writing has concluded that although he expressed his early opinions before the Islamic revolution on the sanctity of backbiting, the criterion of “belief” is compulsory. However, this standpoint could not be known as Imamiyeh’s Sect ideology and could not be considered as Imam Khomeini’s resolute view as well. Studying Imam Khomeini’s perspectives after the Islamic Revolution and the period of his leadership to the Islamic Society reveals that his Excellency expressed very strong views occasionally maintaining backbiting a Muslim is prohibited. As a person’s latest saying would be known as his recent and absolute opinion, we should consider Imam Khomeini’s final attitude on backbiting applicable to the public and general.

Among the most important issues of law and jurisprudence is whether general sale is promissory or possessory. It goes without saying that if the object of sale is exactly specified, the sale contract would be possessory, and as soon as the contract is concluded, the ownership transfer takes place. However, by the virtue of the article 350 of civil law, the object of sale could be general and a whole. In this case, most law intellectuals and experts believe that after the contract is signed, no ownership is seized by the buyer, and merely, he is able to claim his ownership by the time the sale object is submitted or identified to him. Therefore, in cases in which the sale object is general, the effect of contract solely commits the vendor to the sale. Accordingly, most of lawyers believe that general sale is a promissory contract and did not maintain such a sale to be possessory as included in the article 238 of civil law in contrast. However, Imamiyeh jurisprudence experts and intellectuals substantiated that the aforementioned sale is a possessory one providing irrefutable proofs. The present research attempts to state Imamiyeh jurisprudence and substantive law perspectives with respect to the general sale›s enjoying promissory or possessory nature deploying a library and analytic-descriptive method of research. It highlights Imaiyeh jurists› viewpoints holding that general sale is possessory and reiterates jurists› and lawyers› fundamental disagreement on the concepts of ownership, property, source of property and the classification of contracts to promissory and possessory.

Bequest is considered among the general powers of disposition a person jots down before his/her death. Thus, it is compared to the fulfilled properties a person might have possessed during his/her lifetime. According to the custom and practice, a hidden mercy lies in the interior of this legal identity. Mercy is antonym to the word hostility which means doing or not doing an arbitrary action that deserves appraisal and it is taken for granted that the legator has bestowed the position because of his mercy in the time of composing his bequest. In other words, taking possession of the legated property after the legator’s death has been intended by the legator merely by the time of composing the bequest initially and may not be continuous. By taking a look at the jurisprudential background of legacy law and comparing it with the ruling civil law of the present legal system, we come across disagreements with respect to the nature a contract or a unilateral obligation of the above mentioned identity has, namely regarding ownership legacy, which has been utilized in the present civil law unchangeably. Thus, to frame the legal structure of this law, some experts and scholars have considered it as a contract, while others believe it to be a unilateral obligation. Evidently, offer vs. acceptance is an issue which is discussed under contracts, and acceptance would not be positioned in the structure of unilateral obligations as the legal structure devised in the present legal system would be different with respect to contract and unilateral obligation and the ruling government adopts the rules which are considered as general and clear. However legacy law contains regulations and rules which contradicts the general rules in some cases and the ruling conventional system over the contracts entails that legacy, either ownership legacy or pledge is considered as being unilateral obligation. Therefore, the present paper attempts to investigate the jurisprudential background of this law along with the set-out reasons by comparing it with the civil law which has not been paved by many. The authors of the paper will compare legacy with the general rules of contracts and will substantiate why complex concept of legacy rests on being unilateral obligation.