فصلنامه فقه و اصول
پیاپی 121 (تابستان 1399)

The rise of Islamic rulers to translate the works of other nations in the early centuries of the appearance of Islam is known as the translation movement. The influence of this cultural phenomenon on the Muslims' thought is noteworthy and the Muslims' jurisprudential thought is not separated therefrom. In the Islamic jurisprudence, many of the proofs for inferring the verdicts are considered conjectures, while following the conjectures has been strongly condemned in the Holy Quran. This paradox has become a challenge in the course of acting on the basis of proofs of inference. The purpose of this paper is to identify the origin of this paradox and find a way out of it. This paper, which has been prepared by historical-analytical-descriptive method relying on library sources, claims that the above said paradox has happened as a result of the semantic evolution of the terms knowledge and conjecture due to the translation of sciences such as logic. The definitions and attitudes entered into the Islamic world through translation have been proposed initially by some Sunni theologians in opposition to Ahl al-Hadith; however, the views of some Shiite jurists have been affected by them as well.

Although the Holy Quran has limited the sentence of the prisoner of war to the two options of Mann and Fedaa (release without exchange and release with exchange), many of the jurists have added to them the sentence of killing and slavery. Some jurists have claimed that the sentence is confined to the two latter options and considered muslimization as the only way to release the prisoner. Such opinions have become the pretext of Takfiri groups and the basis of anti-Islamic propaganda. This paper which has been organized through a descriptive-analytical method and library tools has criticized and analyzed the arguments of jurists in this regard by studying the Shiite and Sunni jurisprudential, hadithi and interpretation texts and historical sources. The purpose of this research is to explain accurately and wisely the sentence of the prisoner of war in Islam based on jurisprudential sources and jurisprudential reasoning method in order to respond scientifically the baseless perceptions and the Islamophobia attack from this aspect. The results of this research show that the sentence of the prisoner of war is limited to its two Quranic options of Mann and Fedaa; the sentence of killing is specific to those who have committed a specific crime and slavery, if proven, has been a temporary sentence in the early Islam due to the special circumstances of that time.

One of the arguments cited by Imamia jurists in jurisprudential and Usul al-Fiqh books to prove or disprove a verdict is the prohibition of establishing a new jurisprudence. Despite the relatively high use of this argument among jurists, no definition of establishing a new jurisprudence has been offered nor has the reason behind its prohibition been presented. What this research seeks to find is the concept of establishing a new jurisprudence and the reason behind its prohibition. For this purpose, the Imamia jurisprudential and Usul al-Fiqh works and other written documents have been searched and studied using various keywords and after finding examples of jurists' citations, the authors have attempted to discover the concept and the reason behind prohibition of establishing a new jurisprudence. The result of this research is that establishing a new jurisprudence has been considered to be the same as having rare opinions and changing the permanent verdicts. The probable bases of this prohibition which is obtained in some way from the opinions of jurists are: the correlation between establishing a new jurisprudence and opposition to Idjma, contradiction with the necessities of the age of the Infallibles, contradiction with the spirit of worship, contradiction with the standards of Usul-al-Fiqh, contradiction with the requirements of religion and contradiction with rectifying the effective cause. By examining each case, its inability to prove the prohibition of establishing a new jurisprudence has become obvious. Therefore, it can be said that establishing a new jurisprudence is not per se prohibited; however, this does not mean that a new jurisprudence is in contradiction with the traditional jurisprudence. Instead, it means the necessity of applying strong arguments in jurisprudential inferences.

From the perspective of civil jurisprudence, the trustee is not liable for any damages unless in case of excessive use or failure of due care. However, a question arises whether a trustee may be liable, by inserting a condition, even in the absence of excessive use or failure of due care? This is a controversial precedented issue in the Islamic jurisprudence and the aspect which makes it up-to-date is its analysis in “banking profit and loss sharing contracts including Mudarabah”. The vast majority of Shiite and Sunni jurists consider the stipulation of the trustee’s liability in the form of a “corollary condition” as “null and void and invalidating” due to its being against the requirements of contract and its contradiction with the requirements of trust, ownership and representation of Mudarabah. The few jurists, under whose fatwa liability in the form of condition about performance is valid, consider this condition as a promise which merely creates a “pure imperative rule” and is not capable of creating “the positive rule of liability”. It appears that the evidence of those who consider this condition as valid are not convincing and the evidence of opponents such as the absoluteness of “Sahiha of Mohammad ibn Ghais” which declares the stipulation of merchant’s liability as the cause of the “transformation of Mudaraba nature” into usurious loan, are preferable. Although the Iranian legislator has also accepted this opinion in article 558 of the Civil Code, article 12 of the Executive Directive of Usury-Free Banking Act passed in 1984, has permitted the trustee's liability which needs amendment. This research is based on a descriptive-analytical method and the use of documentary collection tools. The main approach of this paper is jurisprudential; however, given the need to analyze the relevant Iranian laws, the issue has been studied from a legal perspective as well.

The famous Shiite jurists consider the non-permissibility of stipulation of options in unilateral legal acts as one of the general rules applicable to them. The formation of this rule over time, the jurists who contributed to this trend, explaining the famous jurists’ arguments for establishing this rule and the critique by Saheb Orwa to these arguments and the reasons presented by him to deny the above said rule and popularize a new perspective are the main topics dealt with in this paper with a historical approach in the form of a jurist-based research in order to inform about certain facts of the history of Shiite jurisprudence in this section of the general rules of unilateral legal acts.

The holy religion of Islam, in order to protect the social and economic security of secure and holy places and respect their sanctity, has provided special sanctity and holiness for certain times (Dhu al-Qa'dah, Dhu al-Ḥijjah, Muharram, Rajab) and places (Shrine of Mecca and other honored places with differences in opinions) and aggravates or increases the punishment of perpetrators of crimes in these areas in addition to the prescribed religious punishment. If the crime committed is murder, its punishment is “full blood money and one-third” according to a Sahih narration of Imam Sadegh peace be upon him. Throughout the history of Islamic jurisprudence, the individual entitled to receive the one-third surplus has been the one entitled to the blood money itself and this ruling indicates that the Islamic jurists have not considered this extra amount to be of a nature other than the blood money. However, the hypothesis of this article is that the one-third in excess of the blood money has a “Taaziri” nature. In organizing the present research, analysis of texts and Ijtihadi method especially rectifying the effective cause and cancellation of specificity have been used. Proving this hypothesis has several implications the most important of which is the Islamic state's right to receive the one-third in excess of the blood money as one of the Islamic state's financial resources. Amending the relevant articles of the Islamic Penal Code is another expected implication of this theory.

From the viewpoint of Uslu al-Fiqh scholars, divine precepts are fixed and actual in the sight of Allah and the verdicts inferred by jurists are apparent and in case of their inconsistence with the actual rules, make no change to them. However, the question arises what causes jurists to infer different verdicts as to the same subjects and by referring to similar sources? Although most of the answers to this question concern the influence of time and place and the change in subject matters of the verdicts, it seems that one of the factors affecting the change in the religious verdicts is the difference in the “metaphor-theory” system. According to the achievements of contemporary cognitive linguists, the process of human thought is of a metaphorical nature and most of the linguistic metaphors are due to the existence of metaphors in the conceptual structure of human mind. Accordingly, all abstract concepts become conceptual through the process of visualizing a known and objective matter. The findings of the present study which has been done by analytical-descriptive method and based on library resources show that the difference in the verdicts is due to the difference in the Usuli theories and the difference in the Usuli theories stems from metamorphosis of the supporting and internal metaphors of these theories. For example, the two metaphors “slave and master” and “legislator and law-abiding” which have evolved over time and based on the abstract concept of duty- as the most important and influential abstract concept in Usul al-Fiqh- have led to different theories in this science and subsequently, have also affected the jurists' inference from jurisprudential sources (the Holy Book and Sunna).

The criminal legislation, more than any other branch of law, requires respecting principles that are consistent with sources of legislation. The connection between Islamic law and legislation and proceedings, especially in the criminal field, is also a long-standing debate which has experienced certain changes in the new legal transformation. In the present study, the extent to which the legislator adheres, in the Islamic Criminal Code, to one of the most important principles applicable in the criminal field, i.e. nulla crimen sine lege in two instances of abetting (the subject of article 127 of the aforementioned Code) and Hadd Crimes (the subject of article 220 of the same Code) will be assessed. The authors have critically analyzed two examples of such changes in the form of conflict assessment of articles 127 and 220 of the Islamic Criminal Code passed on 21/4/2013 with principles 36 and 169 of the Iranian Constitution and the nulla crimen sine lege rule. The outcome of this research also provides a general moderate approach to the question of whether religion is a source of criminal legislation and it seems that it has the capability to make legislation interact, in some way, with the legislative principles and the religious culture of the Iranian society and is able to slow down or stop the acceleration of confusion in the Iranian criminal legislation and finally, religion in positive criminal law, is a source of legislation and may not be a direct source of rendering judgment.