فصلنامه فقه و اصول
پیاپی 126 (پاییز 1400)

Establishing the status of phenomena in the future has far-reaching IMPLICATIONS in the field of Islamic jurisprudence, and certitude and certainty, as the only way to achieve it, lacks a disciplined mechanism and is often unattainable. Prospective Istishab (the principle of continuity of the previous state) is an issue resulted from this need which fulfills its mission in ascertaining the future status according to the current status of phenomena. Relying on documentary method and simultaneous interaction with revelatory, rational and customary evidence pave the way for research on prospective Istishab and the only proof of the validity of this principle is the absoluteness of “inadmissibility of break of certainty by doubt”. The important issue in case of authority is that if there is difference between the proofs of prospective Istishab and present Istishab, believing in the authority of a general institution and that both Istishabs are its examples is wrong. The most frequent function cited for this Istishab is the topic of “admissibility of initiation (Bidar)”. In addition, as examples of the consequences of this Istishab, we can mention “ascertaining  the justice”, “absence of an obligation for the duty-bound to learn the precepts with which he is not usually concerned (uncommon percepts )”, “absence of an immediate obligation to embark on fulfilling the duties with extended time-limit”  and many other cases.

As regards the treatment of “Sharia Taazirs mentioned in narrations” as Hudud by the legislator in note 2 of article 115 of the Islamic Penal Code, the question arises as to the nature of Sharia Taazirs mentioned in narrations and how they differ from  Hudud in their terminological meaning? Different approaches have been adopted in jurisprudential sources: 1- the instances mentioned in narrations are Haddi; 2- such instances are Taaziri and whose amount is prescribed; 3- such instances are Taaziri and whose amount is not prescribed. In this research, the legislator's current approach and the jurisprudential view of the Guardian Council concerning “Sharia Taazirs mentioned in narrations” have been criticized through descriptive, analytical and critical method and with an Ijtihadi approach and after summarizing the different jurisprudential opinions, the conclusion has been made. The results of this study show that “Sharia Taazirs mentioned in narrations”, as other Taazirs, are absolutely at the discretion of the Sharia ruler; consequently, their treatment as Hudud by the legislator and establishing a new type of Taaziri punishments in note 2 of article 115 of the Islamic Penal Code is questionable.

Penal policymakers do not provide for general principles and rules of penal law such as nullum crimen, nulla poena sine lege, principle of individualization of penalties and the rule of interpretation in favor of the accused in criminal codes; since the content and foundations of these principles and rules have been recognized a priori. However, in some cases, the legislator has provided for them in criminal codes taking into account certain considerations and in order to modify the general principles and rules of penal law. The Dar Rule (avoiding corruptions takes priority over gaining benefits), is one of the important and applied rules in the area of jurisprudence and law. This rule has been provided for in articles 120 and 121 of the Islamic Penal Code of 2013 for the first time. The contents of these articles indicate that the legislator has adopted a new approach towards this rule in the above said act which is in contradiction with the general principles and rules of penal law.In this paper, besides elaborating on whether providing for general principles and rules of penal law in criminal codes is necessary, the reason why the Dar Rule has been provided for in the Islamic Penal Code of 2013 and its contradiction with  the general principles and rules of criminal law have been analyzed and subsequently, in addition to criticizing and evaluating the new signification of the Dar Rule in the above said Code, the way court decisions deal with this rule has been taken into account.

The famous Imamia jurists believe that performing Taqsir (cutting the hair and nails) and the rites of Mecca on the night of Eid al-Adha (the Feast of Sacrifice) is permissible for female pilgrims who fear from menstruation. Most of the earlier and later jurists have not dealt with the precept of other women and the permission or impermissibility of night Taqsir and then their performance of Mecca rites on the night of Eid al-Adha. It is understood from the above said fatwa that premature Taqsir and performing the rites of Mecca are restricted to the excused women. Some contemporary jurists have also clarified or at least been cautious about this matter and some other contemporary jurists maintain that it is understood from narrations that female pilgrims whose duty is to sacrifice are allowed, after appointing an agent for performing the sacrifice on the day of Eid, to perform Taqsir at night and to go to Masjid al-Haram to perform the rites of Mecca at night.The results of this research, which has been done through documentary and library and content-analyzing method, show that the narrations, as the main religious proof of this precept, clearly signify the latter opinion and reliable proofs indicating impermissibility are not strong enough.

Paying attention to the changes of time, place and gradual conventional circumstances of every society is necessary. One of the issues raised in Imamia jurisprudence is that the impure objects are not capable of being owned; previously confirmed by the custom of society as well. Due to economic, cultural and social changes, this view does not remain as strong as before and in certain cases, in addition to the change of the prevailing social attitude, the Islamic jurists have also changed their opinion as to the capability of these objects to be owned. As regards pet dogs which are among impure objects, it may be said that given the social changes, their customary capability to be owned is uncontroversial; however, the qualification of halal (legitimate) profit is not still imaginable for them and this has led to different approaches to protection and non-protection of the rights of owners of pet dogs and has also provided the basis for the issuance of controversial decisions in the jurisprudence of courts. It seems that considering the customary capability of these objects to be owned, which is verifiable from the viewpoint of law and some sources of Islamic jurisprudence, as well as Haghe Ikhtisas (a special right resulting for example from possessing something) that Islamic jurisprudence recognizes for the owners of these impure objects, the protective approach should be adopted and the effects of this protective approach (civil and criminal responsibility) should be accepted.

The authority of certitude is among the topics whose various aspects do not seem to have been sufficiently investigated in the Holy Quran and the words of Ahl Al-Bait (peace be upon them). The definition of certitude appears to be clear and despite different approaches,  there are few opponents to its absolute unconditionally and excusing feature; however, questions raised in this paper about the certitude of which Quran has spoken, indicates that it is impossible to apply the above said to knowledge and certitude mentioned in Quran and narrations and there is no way to prove its  absolute authority in the narrated sources; rather, a set of verses and narrations indicate that the human beliefs are not the measure and a number of them have no authority.

In jurisprudential texts and consequently in the Islamic Penal Code, penetrating injury means the insertion of sharp instruments into organs such as limbs. Note 1 of article 713 of this Code states that the above said ruling applies to organs whose blood money exceeds one-tenth of the full blood money. According to note 2 of article 713, in case the object protrudes from the other side of limbs, two penetrating blood monies are payable. In the above said article and its two notes, there are cases that can be criticized, such as restricting the body parts of penetrating injury to limbs without designating its coordinates, the blood money being payable to men and Arsh (monetary compensation for bodily injuries whose amount is not determined by law) being payable to women,  determining two blood monies in case the object protrudes from the other side of limbs, and most significantly, applying the ruling to organs whose blood money exceeds one-tenth of full blood money, etc. This research, through a descriptive-analytical method, has analyzed and examined the above said cases from jurisprudential and legal perspectives and concluded that the basis for realization of penetrating injury in case the wounding instrument penetrates an organ whose blood money exceeds hundred Dinars is controversial from certain aspects; for instance, the full blood money of an organ may be a little more than hundred Dinars, consequently, hundred dinars are payable in case it is pierced which is not reasonable and is inconsistent with financial justice existing in the Diyat field. Additionally, the understanding from the Sharia desire and the proportion between precept and its object does not accept it; accordingly, the jurisprudential basis that considers the organs with full blood money or with at least half of blood money as the object of penetrating injury is more reasonable and acceptable and accordingly, the amount payable for penetrating that organ is one-tenth of the full blood money which equals hundred Dinars.

Although exercise is one of the sources of vitality and health of the human soul and body, and the intellect and Sharia recommend it, some sport disciplines are dangerous and cause harm to athletes. Such harms are sometimes temporary and minor, and sometimes lead to severe injuries, disability and lifelong disablement, and possibly the athlete's death. In this study, through a descriptive-analytical method, the authors seek to obtain a rule to infer the precept of all types of dangerous sport disciplines. The hypothesis of this study is that those sports which harm the body are per se impermissible according to the ruling of intellect and Sharia and in case they cause harm to or the death of another, give rise to liability. This study concludes that pursuing these sports with the good motive of, for example physical readiness in order to defend oneself and express glory and readiness to defend Islamic territory and society against malicious persons, is permissible due to necessity and as a result of a secondary rule and subject to certain conditions; even occasionally it is obligatory due to being the essential precondition of obligation and liability is also excluded in case of prior acquittal. Obviously, malicious or criminal personal motives including villainy, revenge and unsafe competitions keep the case subject to the primary rule.

Implementing the rules of Sharia is considered as one of the important goals of establishing the Islamic state.  The legislator, too, while considering the material and spiritual needs of the society, enacts laws and regulations in order to ensure the security of the society and the rights of different strata in the best possible way. The essential question is whether the violation of these laws, in addition to committing a crime, amounts to the occurrence of a sin, so that in addition to the worldly punishment, the afterlife punishment awaits the perpetrator, or there is no connection between crime and sin. In response to this question, the Islamic thinkers have offered different views: some have denied the connection between crime and sin; another group maintain that violation of Islamic state laws constantly correlates with the occurrence of sin before Allah; the third group have limited the realization of the two titles to the absence of conflict with Sharia rules and another group have not completely denied the correlation between the laws and the Sharia rules and in case Islamic government decrees are violated, have accepted the occurrence of crime and sin in certain cases. In this research, by criticizing and examining different opinions, the real relationship between crime and haram (forbidden) has been explored and by explaining the correct point of view, an appropriate step has been taken in response to this question.