نشریه مطالعات تطبیقی فقه و اصول مذاهب
سال پنجم شماره 2 (پاییز و زمستان 1401)

Judging in the Shi’a legal system is not limited to the implementation of rules or propositions of law, but the judge, who is also a mujtahid, has a basic and independent role in the process of discovering and deriving rules. But in Iranian law and considering that the judges do not have the rank of ijtihād, the most important and fundamental question is the analysis of the role and position of the judge in the interpretation and inference of the verdict. In the legal system based on the will of the government (traditional law), the duty of the judge is just to apply predetermined rulings to disputed issues, but in the legal system based on natural rationality (modern law), the judge can interpret the rulings based on reason. Today, a paradigmatic shift is necessary for judicial justice, and that is the transition from traditional laws to modern laws. In this article, in order to implement a paradigmatic shift and by emphasizing the role of the judge in the interpretation of the rulings considered for application as well as doing research about justice and its status in the inference of rulings, justice is introduced as the purpose of Shari’a and legal apparition beyond a jurisprudential rule or the stipulation of rulings or the philosophy and wisdom of them. This way, the judge, inspired by legal principles and by using reason and judgment criteria, goes beyond the appearance of the law, and especially in the cases of absence, silence, ambiguity, or defects of the law, he makes justice the criteria for inference of judgment and as a result issues a just judgment.

The content of verse 141 of Sūrat al-Nisā is the basis of nafy-i sabīl “negation of domination) rule. The jurists considered the declarative content of this verse to be an order and accordingly ruled that any action that causes the infidels to dominate over the believers is prohibited. Regardless of this rule, the concept that Muslims should not act in such a way that the infidels dominate them and distort their dignity is accepted by Muslim. However, this rule faces challenges both in terms of inference and implementation. The difference in the revelation occasion of this verse, the difference in the conceptology of nafy-i sabīl and its scope of inclusion are two important theoretical challenges related to this rule.

The argument based on the prohibition of ijtihād against naṣṣ emphasizes the existence of a prior, explicit, certain, definite, conclusive and meaning independent from the reader and interpreter. What is presented in the form of this proposition relies on the interpretive approach of the subject-interpreter. This article research, which was conducted with a descriptive-analytical approach and reliance library sources, shows that such an attitude does not include all interpretive approaches and cannot be cited as a principle-interpretive rule, because apart from the different impressions of the concept of naṣṣ, the way to call a referent (miṣdāq) in terms of proof is also a point of disagreement. Similarly, a distinction should be made between ijtihād against the appearance and ijtihād against the spirit and the intension of the text. The uṣūlī principle, “every ruling is based on a reason on which it was devised” limits the application of the prohibition of ijtihād against naṣṣ; e.g., not cutting off a thief’s hand in a year of famine and delaying the implementation of legal punishment of theft in other cases.

One of the most important divisions of crimes in terms of material element is its division into continuous and instant crime. A continuous crime is a crime that is repeated moment by moment with all its elements, no end point other than the interruption of continuity can be imagined for it; but this definition is contrary to the principle of interpretation in favor of the accused in criminal law and restricts the scope of the principle of acquittal in Imamiyyah jurisprudence. In Imamiyyah jurisprudence, there is no statement about continuous crime, but accepting it and imposing restrictive effects on the accused through it, is in conflict with some principles of jurisprudence. By reflecting on the opinions of the jurists on the punishable crimes, as well as the ḥudūd (legal punishments), qiṣāṣ (retribution), and the crimes deserving dīya (blood money), it becomes clear that none of them refer to the behavior that has continued over time and is realized until the criminal’s behavior ceases. The present study, which was carried out with a descriptive-analytical method and reliance on library sources, criticized the continuation of the continuous crime and, following it, the inclusion of the subsequent law with a more severe punishment than the crime mentioned in Article 10 of the Islamic Penal Code, and based on the principle of interpretation to the benefit of the accused and the doctrines of Imamiyyah jurisprudence has proved the absence of continuous crime and its opposition to the principle of acquittal. In this regard, it is necessary to examine the nature of continuous crime as one of the positions of violation of the rights of the accused.

When legislating its rulings based on the international customs of the time, Islam introduced a tax called jizya on a group of non-Muslim combatants who applied for residence in Islamic lands. The amount of this tax was much less compared to the taxes collected by non-Islamic countries, and in return for it, the lives and property of non-Muslims were protected by the Islamic state. The jizya system in Islam is based on three principles: mutual agreement of the parties of the contract; the small amount of the jizya, and the exemption of committed non-Muslims from participation in the defense of the Islamic land. The reason, conditions, instances of lapse and the philosophy of jizya collection show that Islam was not seeking to insult and humiliate non-Muslims.

The abundance of judicial cases in judicial courts and the importance of careful study of the cases by the judge create an interval between testimony in cases with witness testimony and the verdict issuance. Now, in this interval, witnesses may commit actions that may disqualify them as witness; in this case, it should be checked as to what effect the witness's iniquity (fisq) will have on the validity of the witness's testimony after the testimony and before the verdict is issued. This research, conducted with a descriptive-analytical method, shows that with regard to the criticism and infringement that is included in the generally accepted view as well as the detailing viewpoint, and according to the arguments presented in this research, in the mentioned assumption, the suspicion and confidence of the existence of justice of speech in the witness is doubtful and certainty turns into doubt and his testimony will no longer be considered as a legal testimony. Similarly, according to the application of verse 6 of Sūrat Al-Ḥujurāt, in addition to the necessity of the duty of research and investigation for the court, verdict issuance based on the testimony of such a witness will be against precautionary principle and the witness’s statements will be subject to the ruling of article 176 of the Islamic Penal Code.

The ‘āqila (paternal kinsman)’s responsibility in paying dīya (blood money) is one of the endorsed Islamic rulings. The Islamic Penal Code does not contain any ruling regarding the possibility or impossibility of the āqila’s referring to the criminal to receive dīya. The generally accepted view of jurists is also non-referral. However, examining the evidences of both opinions in Imāmī jurisprudence proves the superiority of the evidences for the right of referring. Therefore, this article is intended to answer, with a descriptive-analytical method, the question: “According to the legal, rational, and conventional evidence, is the view on the permissibility of the ‘āqila’s referring to the criminal valid or the view on its impermissibility?” The finding of this article is that the weakness of sanad (chain of transmission) or denotation of the narrations corresponds to not referring, the lack of consensus of jurists, and also lack of conflict of the principle of “Man lahu al-ghunam fa-‘alayhi al-ghuram” (lit. He who owns the sheep must pay the fine) with the right of referring, on the one hand and on the other hand, the existence of narrations indicating ḍamān (liability) of the criminal, a rational principles such as the rule of the wizr (heavy burden of sins), the principle of itlāf (prodigality), the expiration of established meaning of the word ‘āqila, obligatory verdict of paying dīya by the ‘āqila, separation between obligation to pay and ḍamān, deduction of the priority of the right of referring the public treasury to the criminal, the principle of non-gratuitousness of paying dīya by āqila, and legitimacy of substituting insurance with ‘āqila in obligation to pay dīya, denote the conclusiveness of the reasons for the view on the right of referring. The result is that due to the endorsement of ‘āqila institution, faltering of its social acceptability in the present time and changing the manāṭ (basis of ruling) of its occurrence, it may be possible, by predicting the possibility of referring according to an unpopular view in Imāmī jurisprudence, to bring this endorsed jurisprudential verdict closer to the requirements of the time.

Islam has given great importance to the foundation of family in such a way that with realism based on recognizing the talents and potentials of men and women, it has legislated rulings that suit them in the best possible way. However, one of the misconceptions in this regard is the inappropriate culture of beating women, which some have attributed it to verse 34 of Sūrat al-Nisā, but according to the research conducted on the concept of beating women in the Qur’anic culture, several questions have been raised in this respect, such as: “What are the opinions of commentators and jurists regarding the meaning of beating?” “Which of the meanings or concepts in question about beating based on evidences are preferable to other meanings?” Given the fact that the verb ḍarb does not always mean to beat and it attains different meanings according to its being placed next to different roots, many different viewpoints have been proposed regarding women based on the conditions and requirements of the time and place and the culture of the jāhilī (Pagan) society. This article tries to answer the upcoming questions in this field with a descriptive-analytical method on the basis of lexical, interpretive, narrative purposive and legal sources. Accordingly, it was found that despite various meanings such as physical beating, marriage, etc., which has been quoted for ḍarb, as well as approaches such as revocation, the most suitable meaning for waḍribūhunna in this verse is leaving home by the man and it is more compatible with rational and scriptural proofs and is preferred over other meanings.

Since the early centuries, the generally accepted (mashūr) view among most of the scholars of Islamic schools of thought has been that scant (qalīl) water is considered impure after coming into contact with impure objects, even if its three qualities, i.e. the color, smell and taste of the water, do not change; but despite this accepted view, some opinions of Imāmī jurists, especially in the later and contemporary centuries, as well as Mālikīs’ opinion, have been contrary to the generally accepted view. The present research has reappraised the Imāmī traditions in this field with fiqh al-ḥadīth (science of tradition comprehension) method and by using the scientific concept of proportion in this regard has reached a criterion or rule that confirms the unpopular opinion of the Imāmīs in this area, which is in accordance with the opinion of Mālikīs. On this basis, considering water as impure does not depend on its quantity, but rather on the proportion of impurity in the water. As a result, whether the water is scant or abundant (kathīr), it is considered impure only when the proportion of impurity in the water reaches such a level that it changes the three qualities of water.

Despite the consensus of the Imami and Sunni jurists about the principle of the exclusion of brothers for the mother and, as a result, her deprivation of the surplus share of the mother's one-sixth (share), the difference of opinion still remains that, presuming the brother to be the murderer, whether his right to the surplus share of the mother’s one-sixth (share) is still valid or does committing murder prevent the exclusion of brothers? Induction in jurisprudential sources indicates the existence of different views on this issue, to the extent that the renowned majority of jurists believe that presuming the brother is the murderer, they do not exclude the mother, and some others do not think that murder is an obstacle to the exclusion of brothers; some others have also left the issue in doubt or proposed caution. Conducted with descriptive and analytical method, this research tries to recognize the point of view of non-exclusion of the murderer brothers as a strong and defensible assertion; arguing that the general word “brothers” in verse 11 of Sūrat al-Nisā as a reason for the opposite view can be violable, and on the other hand, documents such as criterion (manāṭ) derived from the narrations about the non-deprivation of infidels and slaves (mamlūk), and inclusion of the mentioned manāṭ in murder - in the manner of refinement of the basis of a ruling and the removal of limitation - as well as the alignment of the consensus or at least the general acceptance of this point of view by the jurists, and most importantly, the allegorical aspect of the above-mentioned topics in the hadiths and non-relevance of the topics mentioned in the successive order of the ruling of non-exclusion, are among the documents that justify the acceptance of the non-exclusion view of the murderer brother. Therefore, the legislator’s approach to follow the unpopular jurisprudential point of view in accepting the assertion of exclusion - in the exception of the third condition of clause (b) contained in article 892 of the Civil Code - is subject to criticism; after proof of claim, removal of the mentioned exception is suggested to the conventional legislator.

In a general view, Shar'i rulings are divided into two categories: devotional (ta‘abbudī) and explanatory (ta‘līlī). The first category, which is also called rulings of non-reasonable meaning, is such that intellect is not able to understand their detailed wisdom and if it is left to the obligee to determine and recognize them, he will fail to understand them. In contrast to this category, there are explanatory or reasonable rulings. Considering that the judgment of all incidents and events is not specified in the texts and the ruling for many of them is left to the ijtihāds of the mujtahids, it is important and necessary to distinguish between the devotional rulings and the explanatory rulings, whose cause can be discovered and understood, because in devotional rulings there is no way for ijtihād, and ijtihād leads to heresy, while in explanatory rulings, the prohibition of ijtihād would lead to the non-compliance of Shari'a with the conditions, and as a result, to improper ijtihād. In order to understand the devotional rulings, such criteria as lack of reasonableness of meaning, lack of appearance of wisdom, constraint, stability, human inability to understand the cause and lack of explanation have been stated. It seems that among these criteria, only the criterion of constraint can be the real criterion for recognizing the devotional rulings. Firstly, other criteria alone are not considered as sufficient; secondly, some of them overlap or refer to a common meaning; and thirdly, they do not include all the referents of devotional rulings.

In the present era, when many women are responsible for social works and require leaving home, they have confronted with challenges related to the conflict between employment and obedience. In some approaches, all the rights and duties of a wife are presumed to be of marital duties and responsibilities; in such a way that all the religious, human and citizenship rights and duties of a woman are fading away in light of the commitments and tasks of marriage. This is while a woman has rights and responsibilities towards herself, God, parents and society for her spiritual and human growth and perfection, and her duties are not completely diminished in the tasks of marriage. This study seeks to present a new reappraisal of religious texts from a female perspective by using the case study strategy while not sticking to conventional readings, and recognize the contexts and potentials in religious sources. In this way, according to many endorsed family decrees and the approval of the legislator concerning the intellectual’s stipulation, by changing the lifestyle and social presence of women, according to the principles of permissibility, soundness and such rules as dominance, justice, maintaining system, good behavior, no harm and no plight, etc., there is a possibility for the wife to leave home in a conventional and reasonable manner; and the limits of the husband's authority in the matter of obedience and permission to leave home are overshadowed by the divine and human rights and duties of the wife.