فصلنامه فقه و اصول
پیاپی 109 (تابستان 1396)

The present research inquires whether jurisprudence pays heed to the financial status of people that is created according to conventional view or rejects it altogether. The findings suggest that jurisprudence has paid heed to the rulings of financial status based on two indices of financial prosperity and personality traits. In many of these instances, a panoramic attention and accurate look at the neglected ethical propositions would unveil the conformity of ethics with jurisprudence and in other instances where the difference is obvious
its reason will be analyzable and explicable in the purposes of these two sciences. This research has been performed in comparative form and with the explicatory-analytical method.

Intellectuals’ stipulation is a principled instrument, that on one hand its sides and components have not been explored into in principles and on the other hand the mechanism of its acquisition to be used in jurisprudence has not been provided. In this article, with an examination of the definitions available about intellectuals’ stipulation and analysis of its application in jurisprudence and principles, this principled instrument will be scrutinized and after uncovering its sides and components and explaining its difference with “intellectuals’ unanimity”, the mechanisms employed in jurisprudence and principles for acquiring it will be examined and finally the mechanism for relying on intellectuals’ stipulation in jurisprudence and principles will be suggested.

Circumambulation literary means turning around something paralleled with sensual and spiritual surrounding. The soundness of circumambulating on the floors higher than the Ka‘ba is relied on the conventional verity of circumambulation and relevance of the location of the House to the traditions and annexation of the air of the Mosque and Ka‘ba to the Mosque and Ka‘ba. Besides being weak in chain of transmission, the traditions relied on have no fully approved evidentiary proof either; and the verse ﴾and go about the Ancient House﴿ (Q. 22: 29) and the traditions of circumambulation of the House in conjunction with non-lenient conventional understanding appear to take the House itself as a pivot for circumambulation.

One of the challenges of civil jurisprudence is the nature of executorship of the will (commitment bequest = waṣiyyat ‘ahdiyya) and the issue of assent (qabūl) in it. The renowned majority of Imāmī jurists believe that assent is not a precondition in commitment bequest. Article 834 of civil law has also approved this view. Although in agreement with the renowned majority of Imāmī jurists, this article contradicts a number of indisputable legal and judicial rules such as the principle of sovereignty and free will, necessity of assent in contracts, denial of loss, and distress and constriction. On the other hand, it is also impossible to ignore the bequeather’s (muwassī) offer (ījāb) since the bequest would be left undecided and bring loss to him/her.
Besides the generally accepted view, there are other views in this issue, including that after the death of the bequeather, if the executor
(wasyy) has not accepted the execution of the will, he is entitled to reject or when the son is the executor of the father or if the execution of the will (wiṣāya) is not possible by anyone else except the executor himself, he should accept the execution of the will.
After refutation and confirmation of the viewpoints, this writing would accept ‘Allāma Ḥillī’s view with a slight difference as follows: the bequeather is legally and lawfully obliged to inform the executor of his object of bequest and to secure his assent before his (the bequeather’s) death; in this case, no injustice is done neither to the bequeather nor the executor and the contradiction of the two principles of “no harm” would be eliminated.

As one of the most important Shī’a source, the isolated tradition (khabar al-wāḥid) has always been open to discussion in science of the principles of Islamic jurisprudence (‘ilm al-uṣūl) and hadith and its authoritativeness has been carefully examined. Proving the authoritativeness of the isolated tradition lies in the scholars’ past approach by means of the Qur’an and traditions, the result of which is the devotional acceptance of such a judgment. In view of some contemporaries, however, the means for uncovering rulings (denotations = imārāt) does not have a devotional aspect; rather, they are subject to the intellectuals’ stipulation, as the legislator’s function is to endorse them. With such an approach, the present paper has analyzed the isolated tradition as one of these means, the origin of whose authoritativeness is the intellectuals’ attitude, and explicated the role of other textual evidences (verses and traditions) as requirement for an attitude. The most evident outcome of this reappraisal is a new perspective about the criteria of the authoritativeness of hadith and the means for diversification of tradition; because by accepting the role of the intellectuals’ stipulation in the authoritativeness of tradition, the criteria for its acceptance is also left with the intellectuals, and the issuance authenticity is considered as the most important feature of the authoritativeness of tradition.

Mutual cursing (li‘ān) is used in special wording and condition in the presence of a judge in case of man’s claim of the woman’s adultery or in case of rejecting paternity of the child by the husband; in that case the punishment of false accusation of unchastity (qadhf) and adultery (zinā) are removed respectively from the man and the woman; and the wife and the husband become unlawful (haram) to one another and would not inherit from each other for ever, etc. Jurists are divided upon the nature of li‘ān. Some have considered it to be attestation, some oath, and some a combination of oath and attestation, and each have come up with evidences for their claim.
After examining the evidences of each of the three groups given the differences of oath and attestation with li‘ān and given the specific outcomes resulting from li‘ān, this article concludes that li‘ān is none of the above-mentioned instances; rather, the Exalted God, in case of the husband’s claim as to his wife’s adultery, has devised a method under the rubric of li‘ān for eliminating punishment of qadhf from him, which gives rise to special rulings and results. Similarly, rejection of paternity has its special rulings and results. In one respect, li‘ān is an independent event and it is not necessary to be one of oath or attestation or a combination of both so as to say it should have their rulings and results.

After mentioning different views on marriage of a Muslim man to a Christian or Jewish woman, this article has addressed as to which of these views are correct from the perspective of the Holy Qur’an. To this end, first the verses in which the prohibition of marriage to the women from among the People of the Scripture is referred to are brought up and the denotation of these verses to the subject are examined; and then, the verses contradicting this denotation are examined; and finally it has been summed up that one of the most important points studied is the inclusiveness of the word idolaters in
verse 221 of Sūrat al-Baqara to the People of the Scripture, as, given this inclusiveness, which according to the explanations mentioned in the text, the outcome of the research is against it, the contradiction of the two verses 221 of Sūrat al-Baqara and verse 10 of Sūrat al-Mumtaḥana with the verse 5 of Sūrat al-Mā’ida has been studied and concluded that the verse 5 of Sūrat al-Mā’ida has not been abrogated and the generally accepted view on this topic has been critically reviewed in bringing up the issue.