مجله پژوهش های فقهی
سال هجدهم شماره 1 (بهار 1401)

Although, according to a number of Islamic traditions and Quranic verses, the legitimacy of the imprisonment can be verified briefly, the main challenge is that the imposition of this punishment in some cases appears to conflict with the rights of others, such as the incarceration of the offender's mother which is in violation of the rights of the child and the imprisonment of a criminal householder which is in conflict with the rights of his wife and children due to significant damage sustained by them. What comes to the mind is providing a solution to the conflict and settling the dispute of the rules of the Wizr through execution of the sentence of imprisonment. The present research, while explaining the dimensions of the imprisonment, as well as the explanation of the rule of Wizr which implies the concept of the principle of personal punishment, seeks to answer these conflict. According to jurisprudential sources and well-known narrative books, it is concluded that the rule of Wizr (the principle of the personal punishment) is an unexceptionable principle, and the imprisonment should be executed only in limited cases. In the conflict of the imprisonment and the rule of the Wizr, the rule of Wizr shall be governed and the sentence of imprisonment shall not be executed.

One of the demands of feminists is to permit and legitimize abortion. Because it is a matter of the right to life of another person, it is perhaps the most challenging demand. Therefore, attempts have been made to provide various reasons in this regard. Referring to the right to choose, the right to freedom, as well as adhering to the right to flourish women's talents and also seeking help from the right over one's own body, the feminists seek to prove their claim. This paper, taking a view of the philosophy of jurisprudence as a science that is responsible for extrajurisprudential explanation of the jurisprudential affairs, investigates these fundamental issues. It considers the proof of these reasons weak and neutral, deems such attempts unsuccessful, and explains the disagreement between such principles and reasons and Islamic principles of the philosophy of jurisprudence.

The main pathology in the field of methodology of jurisprudential and legislative ijtihad is that the keywords of methodology, group ijtihad, religious sociability, legislative requirements, and the face of social thinking that are presented in this writing suffer from the following harms: they are either left unsaid or do not cover all dimensions and need to be completed, or their semantic relations are not systematic or the rule of adherence to the object is adherence to its accessories and  have no quorum in explaining the keywords. This writing, by dividing methodology into basic methodology and applied methodology, emphasizes that with a new approach to religious sociability and a new explanation of the anthropological and sociological foundations of ijtihad and legislation, social thinking is freed from the monopoly of matter and precise results and is also decorated on the face. One of the fruits of social thinking face is that the requirements of legislation are adorned with new requirements, and group ijtihad achieves new dynamism and richness with real actualization. With this systematic revival, the legislative process becomes a process in accordance with the requirements, and the resulting law becomes destitute from structural and substantive discrepancies. Maintaining and strengthening the position of the Legislature Power and the Guardian Council as part of the legislature depends on the above approach to ijtihad.

Many Shi'ite jurists, adhering to some Quranic verses known as “the verses prohibiting any action based on a suspicion” attempted to prove that invalidity of suspicion is the primary principle. The principle reads: “Following a suspicion to inference and comply with Islamic law is prohibited.” By accepting this principle, the validity of some kinds of suspicions such as a suspicion arising from a single transmitter and from the superficial meaning of the words of the Quran and Islamic traditions known as “specific suspicions” on which the inference of many Islamic laws depend, faces some challenges. Every scholar of principles of jurisprudence has a specific way to tackle this challenge which is discussed in this article. The main purpose of this article is to show that the scholars of principles of jurisprudence have interpreted and understood these verses wrongly and that the mentioned principle has no Quranic basis. The verses prohibiting suspicion, based on the audience and verses context, mean “believing without reason and witness” but not a mental state opposite to certainty. As a result, all kinds of suspicions which there is a reason for their validity and based on which the wise act, are not included specifically in the verses prohibiting suspicion.

Although mortgage, among other forms of guarantee contracts, has the widest application due to mortgagor’s direct domination over a mortgagee and developing better confidence, jurists, relying on four reasons, have different views about receipt and objectivity of the mortgaged property. Believing in the condition of receipt and material objectivity of mortgaged property in mortgage contract which also affect civil law had led to the shortcoming of this type of contract in the modern contracts which makes inevitable a change in the guarantee structure. Mortgage aims at achieving domination by the mortgagee over the mortgagor’s property to restitute his right. Domination is a conventional matter which has different instances in different times. Material receipt is only valid in this respect and its condition in making a mortgage contract cannot be proved by any jurisprudential reason. In addition, the objectivity of property, in its modern perception, is not limited to material object. The principles of general theory of collateral include proving this view, along with proving the unity of engagement and debt, the extent of guarantee, and concluding a guarantee as an innominate contract according to which it is possible to conclude any type of guarantee contract, material or non-material, such as the tangible specified object, debts, rights, intangible (descriptive) specified object.

The study seeks to investigate the legal ruling of driving roofed vehicles in Mecca or crossing over the tunnels during the day by men in the state of ihram (muhrim). The results of this research, obtained through library resources and software, show that the mentioned ruling depends on the criterion inferred by the jurist. It means that if the criterion of the jurist is the prohibition of using shadow by the muhrim during his travel, moving by a roofed car and crossing the tunnel permitted in Mecca. But, if the criterion of the jurist is the prohibition of using shadow when moving through any kinds of vehicles or using animals it is not permitted. Of course, he can cross the tunnels on foot. It seems that according to the indications in Islamic traditions it can be said that the criterion of sanctity is only creating a shadow by the muhrim on himself during the day and his stopping or moving has no effect in this ruling. Therefore, using the existed shadows or entering the house, tent, tunnel and the like is permitted for the man in the state of ihram, since he does not make a shadow on himself. According to this criterion, men in the state of ihram are not allowed to travel by roofed car in Mecca during the day, because it is an instance of shadowing.

Imprisonment is undoubtedly the most common punishment used in all legal systems in the world. The Islamic legal system has legislated imprisonment for some of the crimes. This paper claims that Islamic law (Shari'a) has confined imprisonment to the cases stipulated in the Quran and Islamic traditions and it cannot be used for non-stipulated cases. Therefore, in spite of the legislator’s view, the offenders cannot be sentenced to imprisonment – based on ta'zīr or hadd- (except the cases stipulated in the clear Text), as it has been stipulated in Islamic Penal Code. This article proves its claim through discussing the traditional arguments of imprisonment.

Istishab (presumed continuity of laws) is one of the practical principles that is widely used in jurisprudence and law. The status of this principle in jurisprudence and law and the lack of coordination of law with jurisprudence in this area needs to be studied. Regarding the application of this principle to judging and proceeding, the situation is different in jurisprudence and law. In jurisprudence, the application of this principle to judging is in serious doubt, and the jurists, except in rare cases, have not discussed the application of practical principles including istishab, and the lack of application of practical principles, including istishab, has been resolved and stipulated by the jurists. However in law, it is a famous view that this principle can be applied in litigation. This reputation has been influenced by the popularity of the application of practical principles in jurisprudence and law, and the particular status of practical principles of judging in jurisprudence has not been addressed. The article 198 of Civil Procedure Code has also stated the principle of the survival of already proved right and debt.

Hand kissing is one of non-verbal communications being common in most of cultures throughout the world. This non-verbal communication is performed in Muslim societies for older family members especially parents, rulers, social dignitaries, and religious scholars. The messages conveyed in this type of communication include the expression of gratitude, love, and obeisance. Considering the messages hidden in this kind of communication, a question raised in this paper as to what is the jurisprudential ruling of this behavior. In this case, jurisprudential analysis comes to this conclusion that hand kissing, carrying each of three above–mentioned messages, is not religiously illegal, if three following conditions are fulfilled: (a) it does not include certain Muslim prohibitions related to forbidden sexual desires, (b) it does not lead to people’s humiliation, and (c) it does not show pure obedience which God, prophets, and infallible ones deserve. If hand kissing is practiced for expression of cordiality and esteem of the believers, it can be recommended. Furthermore, it can be religiously unlawful if its omission leads to harassment, humiliation, or braking the heart of the believers that kissing their hands is conventional.

There is a relative agreement among the scholars of jurisprudence and principles of jurisprudence (osul) that the utmost knowledgeable person is the one who has a better inference. What is disputed is this question: what characteristics should exist in a mujtahid that lead to a better inference. In other words, what characteristics should exist in the most knowledgeable mujtahid? On the other hand, if those attributes are determined, how and on what basis those attributes should be inquired and acquired in a specific instance? From another point of view, how is the concept of utmost knowledgeablility conceived in a "legal entity" with a "council", "group" and "organizational" structure? In this article, which has been done with developmental method - in terms of purpose - ; library  method- in terms of data collection -, and descriptive-analytical method - in terms of subject -, three characteristics for being the utmost knowledgeable person [understanding (including jurisprudential understanding, understanding the principles of jurisprudence (osul), rejali understanding and thematic understanding), memory and skills] - and four indicators [training history, teaching history, research history and executive history] are presented. Next, the utmost knowlegibility in a legal mujtahid has been compared with real mujtahid based on three council, group and organizational structures.

There are clear differences among the jurists about the right to alimony of a separated pregnant wife. Many jurists, whose views are more popular, consider the separated wife to be inherently deprived of the right to alimony, citing the rule that "there is no alimony for a temporary wife". In contrast, Sheikh Tusi and his followers hold the second view and believe that it is obligatory to pay alimony to the separated pregnant wife. Under the article 1113 of the Civil Code of Iran that follows the first view of the jurists, the payment of alimony to a pregnant temporary wife becomes obligatory where the parties have set out a condition at the time of concluding the contract of mut'ah. Using a descriptive-analytical method and after reviewing each point of view along with the presented documents, the author evaluates that if it is proved by evidence that the alimony should be given to a separated pregnant wife there is no contradiction with the ruling of Imamiyyah jurists that the separated wife has no right to get alimony. It is because of the fact that it is obligatory for the husband to pay alimony whether the separated wife has the right to get the alimony or not. In addition to the weakness of the first argument, the ruling of the necessity of alimony is proved in two ways: First, by taking the opposite meaning from the verse 6 of the Surah Al-talaq which considers the description of pregnancy as the exclusive cause for proving alimony and indicates the need to pay alimony. Second, through the "originality of alimony of pregnancy" in which case the ruling of the necessity of alimony, based on the general evidence of alimony for close relatives, has more implication on lineage alimony.

According to Shari'ah law, "hunting" is one of the acts forbidden to muhrim. The verse 95 of Surah Ma'idah states the ruling on the prohibition of hunting in ihram (pilgrim sanctity) and its atonements. The exegetes and the jurists have different views on some of the rulings mentioned in this verse. The reason for this difference of opinion is the different understanding of the interpretations in the verse, the existence of seemingly contradictory narrations, as well as different views in determining the role of words and letters. This study deals only with the subject of "the right to choose or arranging the expiation ruling for killing a game in ihram". While gathering evidences of understanding and examining the opinions of the commentators and jurists of two main Islamic sects, it provides an analysis of the views of pros and cons. Next, it studies the literal role of the letter “`aw” and tries to explain the role of this letter in this surah and the place of this ruling among other atonements. Finally, it explores the narrations based on the theories of "sequence" and "choice" and in order to resolve the conflict, presents a new reading of the narrations predicted on the theory of "sequence". Based on the evidence obtained, the authors have accepted the view that the muhrim is free to choose atonement and have found that the ruling of observing the order of choosing the atonement is in conflict with the existing documents.

One of the emerging issues is discrimination in retaliation. Discrimination in retaliation means that the parties agree that instead of blood-vengeance, a limb of the criminal should be retaliated against, and in the retaliation in limb, the criminal and the victim should agree to a lesser amount of the crime committed for retaliation. For example, if the criminal cuts the hand of the victim from the elbow, it could be cut off from the wrist with the agreement of the criminal and the victim. Although the legislature acknowledged the legitimacy of discrimination in retaliation, the law is silent on retaliation. From the jurisprudential point of view, most contemporary jurists do not consider it permissible, but in the view of some jurists, it is not forbidden. While presenting different views, the author has provided several arguments on the permissibility of discrimination in retaliation and believes that assuming that discrimination in retaliation is a prescriptive sanctity, there is no positive sanctity. Even from the point of view of the jurists who do not allow discrimination in retaliation, if the parties agree on discrimination in retaliation and implement it, the right to retaliation will be revoked and due to the silence of the law, the court can rule on cancellation of retaliation based on Article 167 of the Constitution and referring to a valid jurisprudential ruling. It is also suggested that the legislature also accepts discrimination in retaliation as it has accepted discrimination in limb under the Article 390 of the Islamic Penal Code.

The possibility of marrying non-Muslim women has been a controversial issue throughout Islamic history. It is claimed that there is consensus among the Shi'ah and Sunni scholars over some aspects of it such as the prohibition of marrying non-Muslim infidels with no Book. Considering the increasing communication with modern societies, especially with East Asian countries, which are typically considered as the people of no book and the need to pay attention to lawful sexual needs, it is necessary to re-examine this type of marriage. Therefore, by analyzing the arguments for the sanctity of such a marriage, including the evidence of consensus on unlawfulness, and the lack of sanctity of marriage with an infidel woman of no scripture based on other evidences such as the Holy Quran and Islamic traditions, as well as the existence of evidences such as isalat al-hilliyyah in marriage and the possibility of infidelity of  Zoroastrians and the permission of marriage with them, as the people of no book, in the view of some jurists is not far from expediency that there is the possibility of such a marriage even temporarily in Imamiyyah jurisprudence. On the other hand, according to the principles of some jurisprudential religions based on the authenticity of the valid expediencies, due to the lack of evidence for unlawfulness of marriage with infidel women, as well as the existence of expediencies such as the need of fulfilling the lawful sexual desires of Muslim men in countries whose people are infidels of no Book, it is not unlikely that they will be allowed to marry infidel women.