فصلنامه جستارهای فقهی و اصولی
سال دوم شماره 2 (پیاپی 3، تابستان 1395)

Since most of religious percepts in Islam are stated as discrete general and specific. They have even been mentioned in the Quran in general and explained by Imam Hassan Askari in specific, and clearly the gap between general and specific is wide. Hence, this question is raised here that how the delay stating of the time of demand has not been questioned?
This piece of writing is to examine the purports of the rule "foulness of the delay of the demand time" first and foremost. Then, the Osuli's (Principles of Jurisprudence Scholar) pronouncements, who have responded to this question, are discussed. Finally, it is stated that as the evidences for the rule of "foulness of the delay of demand time" are scant and due to the critical conditions of the Shiite, the discrete general and specific is not indecent. Nonetheless, given a person intends to commit to the provisions of this rule apparently, he has to distinguish the acts of devotion from the interactions and deals, as the religious devotions based on causation in clues since the reward and punishment is by Allah. This can be mentioned that due to the different rational and transmitted reasons, Allah will suffice the foregone expediency. As for interactions and deals, it should be noted that the events taken place in the canonization era impeded the complete delivering of all religious percepts in the era of the Prophet. In the succeeding eras, such obstacles remained in some other ways and established discretions which removed foulness of the delay of the demand time, as such foulness is non-inherent.

The principle of jurisprudence has proved that the first principle in banned doubts is revocation principle. According to some jurists and Osuli scholars this principle has some exceptions, among which is the issue of vulvas upon which the majority of scholars have issued the fitwas to treat the vulvas cautiously. The studies have revealed that the well-known and common indications for proving how to treat vulvas are incomprehensive and some of these indications do not address this issue and do not believe in obligation. Moreover, given the completeness of the common indications is accepted, the indication leading to permissibility and impermissibility of treating cautiously with vulvas are in contradiction with common indications. Therefore, according to the rules of contradiction subject, preferences or custom consensus, we have to come up with non-obligation ofcaution in treating with vulvas. Thus, the researcher believes that the way of treating with vulvas is strict recommended.

Expediency and coercion are among old topics in Shariah whose function is realized in jurisprudence. The legislator has been variably considering this fact that a framework should be established in the rulings and prescriptions to make these rules flexible. The legislator asses mukallaf's (the one who is obliged to perform religious duties) conditions and the status in which he is situated to specify the servant's quality of obedience so that he is known obedient in special conditions even if he committed a forbidden, while he would be known guilty and sinful in usual situations if he committed the same crime. Expediency is compatible with human's purpose in this world and the Hereafter which consequently ends in access to profit and prevent from loss whose authority is proven as the intellectual's conduct is proven. Likewise, if the expediency is a bound one, the rule of intellect's rule and canon may obtain its authority. Coercion is an intolerable status which seduces a person and makes him commit sin and abandons dues. The guaranty for the authority of coercion and its consequent rules are indications such as the Quran, traditions and intellect. The researcher has attempted to propose introductory discussions and to provide comparative samples from the issue of expediency and coercion and to compare expediency and coercion so that their distinctions and similarities are identified. This question is also to be answered that how expediency and coercion may contribute to the issue of family and becomes a source for legislating prescriptions by the jurists. By going through samples from the prescriptions of family such as infants, it is concluded that the legislator has falsified the rules pertaining kids and infants based on expediency and envy, so that by deducing the rule pertaining the kids by the jurists, it is concluded that expediency enjoys a high status, hence, observing expediency in the process of law making has extended its influence. Similarly, the existence of coercion and obligation in the pertaining rules of family namely kids and infants could establish secondary status and impose prescriptions on them.

SirehMotasharaeh (Religious Shariah Conduct) has been of consideration as one of the sources of revealing sharia for a long time by the Osuli scholars. Nonetheless, researchers have rarely studied the indications of validity for sirehmotasharaeh and the only issue studied in this regard is reliance on the rational validity of sirehmotasharaehby validating the contemporariness of this issue with Imam's lives. The present research is an endeavor to criticize and analyze the indications and reasons of the validity of sirehmotasharaeh. Not only have the researchers of the study found the claim of consensus on the issue of sirehmotasharaeh void and null but also they have criticized the reasons and confirmations mentioned in the Holy Quran and Tradition. They discern the reason of rationality valid and have proven the inherent rationality of sirehmotasharaeh in the era of religions in a novel account of narration.

Permission and its effects in civil law is of utmost importance. Overview to the civil law and its different subjects inImamiyah jurisprudence reveals the fact that permission has an important role in people's social and legal relations. In family law, the importance of permission is clearly noticeable in civil law articles and jurisprudence subjects. The validity of the guardian's permission to the lady's marriage and moral boys or virgin's marriage, the requirement of lady's permission to marrying her husband with her nephew or niece as well as reliance of an Iranian lady's marriage with foreigners is on the government's permission include cases of permission for marriage. Islamic sects have spread different views regarding the permissibility or impermissibility a mature virgin lady's marriage without her natural guardian's permission. In the article 1043 of civil law, the permission of the guardian to his virgin daughter's marriage has been clearly stipulated. Some jurists contend in making distinction between temporary and permanent marriage, while quite a large number of them has treated cautiously with this issue. Many famous jurists and some contemporary jurists do not require the permission of father to the marriage of her mature virgin daughter. However, in spite of the importance of this legal matter, it has been remained unknown and the science of Law has not done enough studieson it. The present paper attempts to carry out an extensive investigation toward the importance of permission in marriage authenticity or nullity.

In Islamic legal system and Iran's regulations, an ill person's marriage who is about to die is distinct from other people's marriage. Article 945 of Iran Civil Law has made the maid's inheritance in marriage to an ill person subject to sexual intercourse or achieving recovery and inheritance without sexual intercourse is void and null. Imamiyeh jurists have interpreted the above-mentioned decree based on the related traditions and there is no contradiction in the main decree. As stipulated in traditions, given a near-to-die patient dies before any sexual intercourse, the marriage contract is void and null and the wife does not inherit her deceased husband. The nature of marriage nullity, enforcing or revoking decree to the ill, the wife's death earlier her husbands, and the nature of near-to-die illness are all considered among obscurities in this issue and Imamiyeh scholars disagree on it. Among other sects, only the jurists of Maleki sect issued the fitwa for nullity of a patient's marriage. Other sects consider the patient's and healthy's marriage authentic and issued a fitwa to the authenticity of patient's marriage and couple's inheritance. Using library references to state the jurisprudential principles of this article, the researcher has endeavored to alleviate the obscurities and to identify the origins of disagreements among Sunni Sects jurisprudents.