فصلنامه فقه و اصول
پیاپی 117 (تابستان 1398)

The present paper discusses the legal addresses theory and offers a new reading thereof. The legal addresses theory, despite opening up a new horizon to analyze the reality of religious ruling and resolving many problems raised in the field of Usul al-Fiqh and Islamic Jurisprudence, the current reading still has deficiencies which the authors have attempted to resolve in this paper through offering a new reading thereof. Based on the new reading of the legal addresses theory, titled legal rulings, the problems concerning it have been resolved and it is reconciled with the rival theory i.e. the individual addresses.

Description and fixing the defects of some laws which have computational aspects by new mathematical literature, is an essential of the information technology age and such studies are unavoidable for programming in order to realize the electronic judiciary. The author's claim about article 393 of the Islamic Penal Code with difference of blood money topic is that this article does not cover certain instances of the related crime. Therefore, in addition to recommendation of a new version of the above said article, for the first time a mathematical formula has been devised to make it operational. With this approach, the author, while introducing the above said article, has explained the cases of deficiencies and their frequency. Finally, the article has been amended so that it encompasses all probable instances related to the sexes of those participating in the murder and the way the difference of blood money is calculated are covered. The result of this study in the section of offering a mathematical formula to calculate the difference of blood money of those participating in the murder, with simple to complex frequencies, is as follows

The hadiths concerning the cause of revelation are related from one aspect to Quran and hadith and from another to history. As far as the verses declaring religious commands which have causes of revelation are concerned, the jurisprudential aspect is added to the above said aspects. The Imamia jurists' attitude to historical evidences in general and to hadiths concerning causes of revelation specifically, affects how verses are inferred from the jurisprudential aspect through the understanding obtained from these hadiths.  In this paper, in order to explain the Imamia jurists' attitude to historical evidences, the function of hadiths concerning causes of revelation in Imamia jurists' works is investigated. For this purpose, the authors have borne in mind the difference of jurisprudential schools and attempted, in this way, to explain the diversity of ways Imamia jurists have treated hadiths concerning causes of revelation. The induction obtained from this investigation shows that the hadiths narrated from Imams, provided that the validity of their attribution is proved, have been cited among the main proofs of a jurisprudential ruling. On the other hand, the causes of revelation quoted by Sunnis have been mostly used as endorsing the jurisprudential inferences by Shiite. The hadiths concerning causes of revelation have a variety of functions in the Imamia jurists' works such as determining the conceptual components of words and inference jurisprudential rulings from the verse. However, providing the ground for jurisprudential inference from the verses apparently non- jurisprudential is one of the most important functions of these hadiths; since, without taking these hadiths into consideration, the verse has not directly referred to jurisprudential issues.

Idjmā‘(Consensus) is among the most challenging Jurisprudential proofs in the eyes of Shiite scholars and each of the great jurists has adopted a specific approach to it. A well-known Shiite jurist famous for frequent use of Idjmā‘in his jurisprudential citations is Mohaghegh Ardabili (1572 A.D). The study of his jurisprudence reveals that in the area of jurisprudential citations, he has considered that Idjmā‘ madraki (consensus whose sources are known) has authority. However, there are arguments which indicate the difference between his jurisprudential citations and his theoretical bases concerning  Idjmā‘. In other words, in the field of jurisprudential citations, he has considered that all instances of Idjmā‘manghul madraki (quoted consensus whose sources are known) are of authority but according to his theoretical bases, reaching Idjmā‘ is possible only in the age of appearance and the times near it.

Self-esteem is to feel worthy about oneself. Maintaining self-esteem and avoiding self-humiliation which is considered as an important and effective issue in the knowledge of education and ethics has been taken into consideration in Islamic jurisprudence and underlies many rulings and has an obvious footprint in fatwas; however this issue has not been discussed independently and coherently in the jurisprudential books. The author, in this fundamental study, through descriptive-library method, has extracted from the jurisprudential texts, five reasons concerning the above said issue and discussed their denotation. Some of these reasons such as Nafye Haraj and Zarar in the form of secondary rulings lead to the issuance of rulings related to self-esteem and some others including the proofs of prohibition of self- humiliation indicate the primary ruling. Therefore, it should be admitted that the scope and variety of rulings related to self-esteem imply the significant and effective role of self-esteem on jurisprudential rulings and may be considered as a variable in issuing more rulings.

One of the significant topics of contradiction of proofs in the science of Usul Al-Fiqh is the change of relation i.e. where established contradiction occurs among more than two proofs. After two proofs are restricted (takhsis) or qualified (taqhyid), the relation of one of them to the third proof is observed and by the third proof, their relation is converted from stable contradiction into unstable contradiction. Through analyzing the authority of change of relation, the authors have attempted to study those contradictions of proofs which consist of contradiction among more than two proofs and lead to the application of change of relation. In addition, given the different instances of change of relation (according to the opinions of later and earlier jurists), the arguments of opponents and advocators of change of relation as well as instances of application of change of relation in hadiths are analyzed and finally, it is indicated that change of relation is of authority in a number of cases while it lacks authority in others.

The penalty for blasphemy against the holy Prophet and the Infallibles prescribed by the Shiite Jurists based on the hadiths is the obligation of killing the blasphemer and that his blood may be shed with impunity. Nonetheless, there are a variety of cases in the infallibles' practical conduct where they have treated the blasphemer nobly and with tolerance and prevented their companions from executing the death penalty. The authors, with a view to resolve the above said contradiction, have reviewed and analyzed the hadiths underlying the death penalty for the blasphemer and concluded that up to the certainty of the referred proofs is the obligation of killing the blasphemer who has targeted the holy Prophet’s prophethood position. In case the subject matter of hadiths is extended to those who blaspheme the Imams, the death penalty concerns the rancorous persons and blasphemers who knowingly and intentionally insult the Imam's legal personality and Imama position. Therefore, there is no conflict between the religious ruling of punishing the blasphemer and the Infallibles' practical conduct in the form of treating morally and generously those who unknowingly insult them and, out of ignorance, were hostiles to their individual personality.

The subject of this study is the sanctity of neutral unbeliever’s property. The famous opinion among Islamic jurists is that from a macro perspective, human is divided into Muslim and non-Muslim. Non-Muslim is not considered hostile unbeliever and his life and property are respected only if he is a contracting party or tributary. On the opposite, a number of Islamic jurists believe that the life and property of neutral unbeliever (hayadi unbeliever) are respected the same as contracting and tributary unbelievers and no one may invade them. In order to emphasize on the latter opinion, the present study, firstly aims at analyzing it scientifically by reconsidering and approximating the famous opinion arguments and in some cases documenting it with the most important probable arguments of this opinion. Then, the author, through criticizing these arguments, attempts to show that one may not, relying on all of them, prove a significant issue like non-sanctity another’s property. The conclusion is that not only the sanctity of the neutral unbeliever’s property is proved because of the absoluteness of the proofs and the lack of evidence concerning their restriction or qualification; but also some proofs may be invoked which demand to  treat the neutral unbeliever with justice and goodness.