فصلنامه فقه و اصول
پیاپی 130 (پاییز 1401)

One of the challenges of Shiite families especially in Sunni areas is the marriage of a Shiite girl with a Sunni man. This issue is under the more general title “the permissibility of the marriage of a Shiite with an Opponent”; the main question of this paper is: what is the imperative rule of the marriage of an Imami woman with a Sunni man? The Jurists have raised this issue in the chapter concerning the conditions of the couples and parity of status between parties to marriage. They have usually mentioned the two features of being co-religionist and the ability to provide alimony as the conditions of parity of status between parties to marriage and then explained the necessity of being of the same sect. There exist three opinions about the permissibility of marriage between a Shiite girl and a Sunni man: absolute permissibility, absolute impermissibility and permissibility with karahah (abomination). The famous jurists believe that it is impermissible and their main arguments, besides clamming consensus, are the opponents’ disbelief and nasibism, the interpretation of parity of status between parties to marriage as being a Twelver Shiite and the narrations in this regard.  The advocates of absolute permissibility and karahah rely upon narrations that permit such a marriage, the absolute and general proofs mentioned in the marriage chapter and the practical conduct of Imams (peace be upon them). The conclusion of this research is absolute permissibility which, in addition to the arguments raised by those who believe in permissibility, is based on the biological, ideological and attitudinal developments of today’s women. The research method is analytical-critical and in addition to the Javaheri Ijtihad as the basis, regard shall be had to the jurisprudential approach that takes into consideration the effect of time and place.

As a pioneer of the Salafi school, al-Albani's views deserve attention in various areas of the methodology of Salafi thought. al-Albani's aggressive and anti-Shia fatwas are perceptible in many of his jurisprudence books. Such fatwas arise from his view towards the sources of inference; however, the scope of the authority of sources from aL-Albani's point of view is not fairly clear due to the lack of an extensive and coherent research in this regard. al-Albani has a specific approach in using the four sources of inference i.e. Book, Sunna, consensus and intellect for his own jurisprudential ijtihad. The present paper has been written with the aim of identifying the extent of the authority of those sources from the view point of Nasir al-Din al-Albani. This research, using a descriptive-analytical method, shows that al-Albani considers Quran and Sunna to be of equal ranks in the process of ijtihad and believes in no priority in using these two sources and does not accept a preference between verses and hadiths. In addition, he believes that a hadith narrated by one person has authority with regard to precepts and beliefs. al-Albani defends hadith in a way that, in his opinion, hadith has authority even in case it contradicts Quran. Moreover, he weakens the category of hadiths according to which, all hadiths should be compared to Quran, since he considers their content to be against Quran. Intellect has no proper place in al-Albani’s system of jurisprudence and ijtihad and he generally advocates narration and is anti-intellectualist. In addition, al-Albani considers the consensus which is accepted among Usulis as controversial.

Jurisprudential hadiths, as a treasury of divine words, have suffered from various damages including difference between the narrated texts of the same hadith. Sahib Javaher is among those jurists who have paid special attention to such hadiths. In order to know Sahib Javaher's approach to this issue, it is necessary to find his answers to the following questions: is there a principle under which there is difference between the narrated texts of the same jurisprudential hadith? What are the causes of difference in the narrated texts of the same hadith? What are the stages of the examination of a hadith narrated with different texts? What are the consequences and applications and reasons of preferring a report of a hadith with different narrated texts? The present paper, using a descriptive-analytical method, has concluded that: first, from the viewpoint of Sahib Javaher, principally, the text of a jurisprudential hadith is unique. Second, the mistake of narrators and scribes are two main causes of such a difference. Third, Sahib Javaher has treated a hadith with different narrated texts in four stages: identification of difference between the narrated texts of the same hadith, differentiation between the different narrations of the same hadith, in the form of affirmative particular proposition and affirmative universal proposition, preferring one of the reports, abandonment or the probability of option in case of the application of the narrations related to the resolution of contradiction between proofs; fourth, the consequences of difference between the narrated texts of the same hadith may be studied in three fields i.e. the signification of hadith, its authority in case of its contradiction with other proofs and its effects on the jurists' fatwas. Finally, Sahib Javaher refers to fourteen supporting factors for preferring a report of the hadith with different narrated texts over other reports including being more accurate, fame and Idjma (consensus) either narrated or acquired through comprehensive research, opposition to the context and not being mentioned in hadith books or the original version.

In this paper, the effect of dangerous contagious diseases on the ability and acts and rituals of Hajj is studied. This library research concludes that if the contagious disease is dangerous and deprives the affected person from the opportunity to perform the rituals until the last possible time, he would lose the ability and in the case that his financial ability remains, he should take action in the next year. However, if he is healthy and is afraid of contracting a contagious disease existing in Saudi Arabia, if the conjecture of contracting the disease is strong and rational, the fear of contracting the disease prevents the obligation of Hajj and in case he knows or it seems strongly probable to him that preventive and appropriate measures will be taken against the spread of the disease in Saudi Arabia, such a fear does not prevent the obligation of Hajj. In that case, if, despite precautionary and preventive measures, he contacts a contagious disease and at the same time, following a physician's instructions, he is able to complete his acts and rituals before the time expires, even if he confines himself to performing the minimum obligations and rituals, his Hajj is sufficient (Mujzi). Otherwise, illness and failure to perform the acts indicate his inability in that year.

Freedom of religion is among the important theological issues. Adoption of Islam is subject to the intellectual maturity of the duty-bound. In case a Muslim-born declares his disbelief after puberty, should he be considered apostate and deprived of his freedom of religion? Apostasy is among the Hudud (unalterable punishments prescribed by Sharia) not mentioned in the Islamic Penal Code and with respect to the dubieties concerning it, valid jurisprudential sources should be consulted. On the other hand, the opinions of the jurists, especially the later jurists, regarding the declaration of disbelief by a person born to a Muslim father after puberty are diverse and have prepared the ground for the appearance of the repelling dubiety concerning the Hadd of apostasy. Among the Imami jurists there are three viewpoints with regard to declaration of disbelief after puberty: some jurists consider him as a Murtad Fitri (a person born to a Muslim father who later rejects Islam) taking into account his inherited Islam; the famous jurists apply the rules of Murtad Melli (a person who converted to Islam and later rejects the religion) to him on the basis of Dar rule (the rule of avoiding Hudud due to doubt) and the necessity of being precautious to preserve the lives of people and some later jurists are of the opinion that he is a disbeliever because they condition apostasy upon real Islam. Since holding that the minor is a Muslim as a result of inheritance originates from the graceful approach of the Lawgiver, inherited Islam may not be a basis for imposing the punishment of apostasy. Accordingly, it is justified to consider a person born to a Muslim father who later rejects Islam as a disbeliever.

The synergy between Gadamer's philosophical hermeneutics and Perelman's rhetorical logic, has resulted in the formation of a model in the methodology of legal science that can be referred to as rhetorical hermeneutics. According to this model, in judicial proceedings, justice is a guiding concept to inspire the result in the interpreter's heart, which is re-understood through an exchange of conversation, and the criterion for its recognition in undetermined situations is to persuade the conscience of a reasonable audience. After hermeneutic understanding of the result, the lawyer's task is nothing more than justifying it with rhetorical tools to persuade the audience to believe that he is presenting a definite image of truth. Under this model, it is not accepted to use the interpretive manners of the Usul al-Fiqh science, in which the subject matter of the propositions does not intervene in the conclusion of the argument. Due to the formation of this model on the basis of conventionals query in humanities, the present research, using a descriptive-analytical method based on the conventional perceptions theory of Muslim philosophers, evaluates the preconditions offered for accepting this model in Iranian law and explains the application of Usul al-Fiqh in law. Usul al-Fiqh is the methodology of discovering the conventionals of the lawgiver and its topics of the interpretation of terms are nothing but explaining the custom and conduct of the wise that is the starting point of understanding and a constituent of the horizon of the interpreter's mind and the semantic horizon of the text and one of the points of fusion of these two horizons.

Distinguishing between prescriptive and advisory commands is an undeniable and significant necessity in jurisprudential inference. In this study, through the case study of famous examples of advisory commands and comparing the three types of religious commands i.e. advisory, preferred prescriptive and prescriptive command being a path, the main elements that form advisory and prescriptive commands will be discovered. The results of this research show that the essential element in prescriptive commands is the use of the lordship status and the lord’s legal personality in stimulating the servant to perform the act; on the other hand, advisory commands apply where either there is no lordship or the lord, for certain reasons, does not use his lordship to stimulate the servant and instead he uses other methods such as declaring the benefits and harms of an act.  Nevertheless, in any type of commands, the lord actually desires that the servant performs the act or refrains from it and only the method and means of stimulation are different. The results of this research show that having an independent benefit, entailing reward, lack of punishment, being related to worldly and hereafter affairs, the existence of real or factitious demand, the existence or absence of an independent intellectual ruling, being new-established or emphasized, etc. do not constitute inclusive and exclusive standards for the distinction between advisory and prescriptive commands.

Sometimes, certain instances of jurisprudential opinions seem to be in conflict with moral principles and values. Among such instances is sexual enjoyment from a minor wife permitted by a group of jurists. The present study, through a library and analytical-descriptive method, seeks to criticize that fatwa, introduce the different opinions of jurists in this regard and examine their proofs in addition to examining this issue from both legal and factual aspects, taking into account the child’s mental injuries from the perspective of Psychology knowledge. The authors believe that given the proved mental injuries as well as severe mental disorders inflicted on the child as a result of sexual enjoyment and based on the rule of negation of detriment and harmful precepts in Islam, sexual enjoyment from a child wife may not be permissible from the viewpoint of Sharia and the opinions of certain jurists regarding its permissibility originate probably from their failure to discover and identify its numerous mental injuries and non-proof of its customary and moral obscenity to them; otherwise, in case of identification of such injuries, they would also issue a fatwa regarding the prohibition of this issue.

Based on the four-stage theory, capability to be created is the first stage of a religious precept. Regardless of the possible existence of a precept capable of being created and different possibilities about its concept, the problem of this research is: what effects does the acceptance of the capability of religious precepts to be created, in the sense of the existence of benefits and harms, have on the analysis of religious teachings and whether some jurisprudential propositions may be excluded from the scope of deduction on the basis of it or in case of knowledge of actual benefits and harms, is it possible to establish a duty and attribute it to the Lawgiver, although it does not exist in the narrated teachings? The results of this research show that capability to be created belongs to the benefit and harm domain and is a preliminary of legislating a religious precept and is not one of its stages. Nevertheless, Imami jurists have utilized the term precept capable of being created in analyzing the religious precepts of different issues. The acceptance of a created precept that never transforms into the actuality stage does not seem to be justified. Since negligence in establishing a precept is not permissible for the Lawgiver and establishing a precept is based on the existence of benefit and harm resulted from the duty-bounds' acts, where the intellect can realize the existence of a benefit or harm for which the Lawgiver has not established an actual precept, due to the correlation between  the precept of reason and the precept of religion, one may believe in the existence of a religious precept created for that act and the legitimacy or illegitimacy of its performance and the problem of the lack of religious precept for emerging issues would be resolved.

Undoubtedly, knowing the Usuli opinions of each jurist plays a significant role in understanding his jurisprudential approach. Ayatollah Sayyed Ahmad Khansari, the author of the precious book Jami al-Madarak, is one of the great contemporary jurists. Despite his numerous jurisprudential and theological books, he has left no Usuli book that may be consulted in order to identify his Usuli views. His Usuli views should be investigated in his jurisprudential books and among individual precepts. Among the practical pinciples, Istishab (the principle of continuity of the previous state) has a special position either in terms of its widespread examples or because of being one of the Usul e Muhreze (principles that declare the duty by taking into account the reality). In this paper, by referring to the jurisprudential book Jami al-Madarak, the authors seek to realize his opinion about the nature and characteristics of Istishab. By taking this paper as a model, one may perceive his Usuli views and discover the missing pieces of his Usul al Fiqh.