فصلنامه جستارهای فقهی و اصولی
سال نهم شماره 1 (پیاپی 30، بهار 1402)

Jurisprudential methodology is one of the issues of fiqh philosophy and also a description of the process of obtaining jurisprudential knowledge. Studying the jurisprudential works of Martyr al-Ṣadr from a methodological point of view shows that he organized the method of jurisprudence in two stages; theory and comparison (taṭbīq). “Theory” means the common elements and “comparison” means the specific elements in inference processes. His creativity and innovations in the issue of common elements have opened new and different horizons in the analysis of jurisprudence issues. Providing an explanation of these innovations in the theory stage leads to the re-examination of the dimensions and sides of his methodological point of view. In order to determine the position of common elements in jurisprudential inference, Shahīd al-Ṣadr has provided an innovative structure and also provided a new content system. In terms of content, she has mentioned the truth and levels of rule (ḥukm), Tazāḥum-e Ḥifẓī, analytical relation in the literal meaning, the rational attitude (sirah al-ʻuqalāyī), ḥisāb al-iḥtimālāt, ḥaqq al-ṭāʻah, etc. How these elements influence the emergence of different jurisprudential results is considered a clear press. The descriptive-analytical method in the processing stage and the library method in the information gathering stage have been used in the present study.

Knowing the history of issues and theories which is proposed in sciences is very important. The present study has examined and investigated the history of the theory of inqilāb-e nisbat as an uṣūlī theory. By referring to the written fiqhī and uṣūlī sources from the earlier scholars to the era of Mullā Aḥmad Narāqī, who is known as the innovator of the theory of inqilāb-e nisbat, and analyzing some fiqhī fatwās, the way of reasoning, and criticizing the proposed views about that fiqhī branch, this result has been achieved that, based on some jurists such as Shaykh al-Ṭūsī, Muḥaqqiq al-Ḥillī, ʻAllāmah al-Ḥillī, Fakhr al-Muḥaqiqqīn, Muqaddas al-Ardabīlī, Muḥaqqiq Sabzawārī and others, the method of study and resolving conflicting evidence in cases where there are more than two evidences surrounding the conflict, is the same method titled to inqilāb-e nisbat. Therefore, although according to the confession of uṣūlī scholars, this theory is attributed to Mullā Aḥmad Narāqī, which it was clearly explained and refined by him for the first time, the roots of this method can be found in the words of the predecessor scholars of fiqh and uṣūl and, sporadically, in some fiqhī branches. Thus, this theory can be considered as a theory that has a relatively suitable and strong support among scholars of fiqh and uṣūl.

After the Islamic Revolution, there were many questions presented about the way of Islamic governance and how such a government deals with social norms and anomalies, even now these questions continue. One of these basic questions is what is the role of the Islamic government in the religious education of the society and does the government have the competence to educate the people of the society and to interfere in the education of its citizens or not? Using the library method, and based on Shīʻah ijtihād and the jurisprudential approach, this study first states the evidence of the government’s lack of competence in the matter of religious education and responds to them. Then various rational and scriptural evidence that have been presented to prove the validity of this matter are stated and after that, these evidences are confirmed or criticized. The general result of this study concludes that based on the frameworks and conventional rules in jurisprudential inference, the evidence of incompetence is not sufficient, but on the other hand, there are many proofs and pieces of evidence for competence. Although some of them are not acceptable, many of them are complete and convincing. Thus, it is possible to rule the intellectual and religious competence of the government for the religious education of the citizens. Of course, this ruling is only in terms of the primary ruling. By considering the secondary titles and special conditions that may exist in society, it can be ruled that it is not permissible.

The main issue of the current study is that, from a jurisprudential point of view, does the contract necessarily have to be based on conventional outcomes such as ownership, matrimony, etc., or is it sufficient for the fulfillment and validity of the contract by mutual commitment and agreement. Some scholars have believed that contracts that are based solely on commitment and do not include conventional outcomes are not an example of a contract, and as a result, are not considered compulsory. Moreover, the inclusion of evidence of fulfilment to the condition of these contracts is doubtful. In this study, while explaining the nature of the contract, this theory is criticized and it is proved that, although the dominant discourse of Islamic jurisprudence in contracts is the discourse of ownership and the existence of conventional outcomes, contracts based on commitment are also legitimate and compulsory. After proving that the ‘aqd (signing the agreement) does not require conventional outcomes, the legitimacy of the contracts based on obligation is examined with regard to the nature of the “condition.” One of the important effects of proving the legitimacy of such contracts is that contracts such as istiṣnāʻ (sale in the form of a manufacturing contract) contract, qolnāmeh (informal preliminary agreement) and the like will be compulsory in the form of commitment for commitment.

In some cases, it is observed that a person commits the crime, but the liability lies with another person. Such as the government’s liability for some damages caused by its employees. However, this contradicts the general principle that the punishment is directed at the person and the liability directed at the perpetrator, which is based on several verses of the Holy Qurʼān. Now the question arises that what are the rules in Islamic jurisprudence that can prove nthis liability. So far, attempts have been made to answer this question, which do not seem to be convincing. Compiled analytically, this study tries to provide a comprehensive answer to the above question. Criticizing refering responsibility of others to the principle “Whoever benefits, the loss will also be his responsibility” or the principle “the instigator is stronger than the principle offender,” this conclusion has been reached that it is based on tanqīḥ manāṭ (refinement of the basis of a ruling) raised in the jurisprudence or the extraction of the religious shariat tendency from the many cases in the words of the jurists that the responsibility for the act of one person is given to another, it can be considered as the dominance of the third party and his authority over the perpetrator, or it can be used the intellectual’s procedure to prove it.

Today, in many sale agreements, including a number of real estate purchases and sales, determining the amount of thaman (price) at the time of signing the agreement is either not possible or entails great risk. While many jurists have considered determining the amount of thaman at the time of signing the agreement as a condition for the validity of the sale agreement, and this condition has been specified in Article 338 of the Civil Code of Iran. The main question is whether the determination of the amount of thaman is an imperative rule and a condition for the validity of the sale, or is it enough for the validity of the agreement to provide a clear and indisputable process in the text of the agreement for determining the thaman in the future of the agreement? This study concerns the evidence of the necessity of determining the thaman – including the Prophet Muḥammad’s ḥadīth of the prohibition of the gharar (risk-taking) sale – demonstrate that not only is there no evidence for the first possibility, but a ṣaḥīḥ narration correctly indicates the second possibility. This study has dealt with analytical-critical data processing with the textual-revealed method.

Considering the fundamental importance and basic requirement of respecting property, deeds and interests in proving civil liability, jurists have considered the action of the owners and agents to lose the respect as a nullity of the liability. In various jurisprudential chapters and discourses, relying on this idea that the result of holding on to the intellectuals’ attitude and reliances is customary, they have documented the fall of responsibility to the loss of respect for property and work by the owner or agent. There is an analysis of the action and the connection between awareness and jurisprudential invalidity. Loss of respect on the one hand, and researching the effect of this connection on the nullity or proof of the liability, on the other hand, are among the challenging issues in the field of civil liability in the transactions. A group of jurists have considered the commitment to the provisions of a void contract despite the knowledge of the nullity of the contract from the time the contract agreement was drawn up, as an example of obtaining the possession of property for free or doing work without taking money. Focusing on this idea, they have voted to drop respect and responsibility in various contracts. Using the descriptive-analytical method, this study along with introducing the concept and analysis of the basis of this view, has addressed the validation and critical rethinking of the aforementioned thought in the field of transactions. According to the selected point of view of this study, since the basic criterion of proof of liability is based on the intellectuals’ attitude, handing over property or carrying out work with full knowledge of the invalidity of the contract, without the intention of donation and gratuitousness, and with knowledge or indication of this intention, is not considered as an example of obtaining the possession of property for free or doing work without taking money, and as the loss of the respect of property and actions. Because such a feature does not have a forced or intentional adaptation to the mentioned titles, rather, knowledge of the nullity of the contract agreement, in the view of rational custom, is considered as a title for both free and donated intention. Based on this, the knowledge of the lack of legal entitlement of ʻiwaz does not have any contradictions with faithfulness to valid exchange in the eyes of rational custom. Knowingly committing to the provisions of a void contract with the intention of exchange, benefit or participation in profit, will not be prevented from the civil protection arising from the necessity of respect for property and actions.