فصلنامه فقه و اصول
پیاپی 133 (تابستان 1402)

The obligation of Ḥajj for the oblige is conditioned not only by fulfilling the general conditions of the duty and having the power to travel the path, but also by affording the trip expenses and to support the family until the return. Sometimes a person finds an unstable ownership of the amount of money that is sufficient to perform Ḥajj, which is subject to deterioration. In this regard, it is important to decide whether such a person is eligible for the title of Mustaṭīʿ (capable) or whether unstable property is an obstacle to achieving financial affordability?Different perspectives are discussed regarding this issue. After analyzing and examining the evidence and opinions of the jurists by applying a descriptive-analytical method, the study concluded that the criterion for the realization of financial ability is the presence of two elements: the owner's permission to occupy and the knowledge of the non-destruction of his ownership. Based on this, in cases of unstable property where these two elements are present, the title of financial affordability and the obligation of Ḥajj are fulfilled, and in cases where one of these two elements or both are missing, affordability is not achieved.

The famous ʾUṣūlīs have considered the validity of Banā-yi ʿUqalā (The common performance of the wise) to be subject to the non-repeal of the Sharīʿah. The study of Muḥaqiq Isfahānī and Muḥammad Bāqir Șadr’s views about Banā-yi ʿUqalā shows that both of them, like other ʾUṣūlīs, considered the validity of Banā-yi ʿUqalā to depend on non-repeal; But they have introduced the validity of Banā-yi ʿUqalā as being based on rationality. Is it possible to arrive at the theory of the impossibility of deterring Banāt which are based on rationality by analyzing that they are based on rationality? This essay tries to represent the concept of rationality of Banāʾāt-i ʿUqalā by using a descriptive-analytical method. Based on this framework, the study proves the theory of the impossibility of deterring rationality-based Banāʾāt.The identification of the theory of the impossibility of deterrence from the rationality-based Sīrahs is done with the aim of achieving the validity of the Sīrahs after the era of the Innocents (pbuh), in addition to facilitating the compatibility of Islamic law with the rationality of the time. The research contends that the necessities of life and expediencies of the governing system are the determining factors of the rationality of Sīrah and any Banā which is based on the necessities of life and expediencies of the governing system is irrevocable.

Fracture of the nasal bone is one of the most common cases of fracture stated in jurisprudence books. It seems that the nose is absolutely considered as a single bone in jurisprudence books and the cost of its fracture is determined according to this concept. This is despite the fact that the child's nasal bone is not completely connected and is considered as a group of multiple bones from the medical and customary point of view.The present article employs a critical-analytical method to analyze whether it is considered one fracture or two fractures if a fracture similar to an adult's fracture happens to a child's nose and leads to the breaking of two bones close to each other. A lack of related tradition in the issue of nasal bone fracture has complicated the investigation of this issueThe research shows that among the evidences presented for the equality of nasal bone fractures in children and adults, there is enough evidence to prove equality. The most important reason that can be provided for the equality of the Dīyih is referring to the application of similar traditions in other bones of the child, which have a similar situation. The application of the words of the jurists in expressing the ruling on the issue of Dīyih for fracture also supports such a conclusion.

In the criminal laws of Iran, the realization of Rishāʾ (bribery) and Irtishāʾ (corruption) crimes is accepted in the public sector, but in the private sector, it is not considered criminal. Imāmī jurisprudence does not directly mention the possibility of bribery and corruption in the private sector, but it seems that it is possible to infer the prohibition of bribery and corruption in the private sector by considering the literal meaning of bribery, the application of verses and traditions, as well as the implication of reason and consensus, and then seek to criminalize bribery and corruption in the private sector.Considering the expansion of the process of privatization and the reduction of government employment, it does not seem logical to separate the private sector from the public sector regarding the crimes of bribery and corruption. In this essay, the criminalization of bribery and corruption in the private sector has been investigated by using a descriptive-analytical method. It is concluded that the criminalization of this act has the support of verbal evidence and is in accordance with the rule of reason and the needs of the Islamic society, and it is necessary for us to move in the direction of criminalizing it in the Penal Code.

One of the most widely used rules in the inferring rulings is Al-ʿIbrah bi ʿUmūm al-lafẓ, lā bi khusūs al-sabab, which helps the jurist in identifying the scope of the ruling. Most of the aḥadīth that contain a general ruling have been issued in response to the narrator's specific question, and whether the criterion in such aḥadīth is the generality of the answer of the infallible Imām or the nature of the narrator's question is a matter of debate. The narrator's question, as one of the reasons for the issuance of the ḥadīth, can restrict general answer, but the rule of Al-ʿIbrah emphasizes the inclusion of the answer. This article tries to present a detailed picture of this rule and where the rule is applied to the audience by reflecting on the basic theories and examining the reaction of the jurists to the rule of Al-ʿIbrah using a descriptive-analytical method. The result of the research is that the rule of Al-ʿIbrah plays an important role in the development of Sharīʿah rules and is known as a revealing tool. Verbal and practical consensus, the Sīrah of Ahl al-Bayt, and the evidence of authenticity of Ẓavāhir suffice to establish the validity of this rule, and among the essential elements of this rule are: the Infallible's word preceding the question, the independence of Infallible’s answer, and its non-contradiction with Sharīʿah rules.

Women's rights are one of the important legal fields that are faced with different views in traditional jurisprudence, all of which are rooted in foundations and methods. The fundamental question is what are the foundations and practical challenges of rebuilding the traditional jurisprudence approach to women's rights. With a critical analytical approach and focusing on the findings of traditional jurists, this article tries to answer the above question and find out in which areas the approach of traditional jurisprudence in the category of women's rights needs re-reading.The findings of this research show that the challenges to the traditional approach and its foundations in women's rights are multiplying and increasing, so that it can bring the role of this jurisprudential approach in human life to a crisis, and this involves the need to update and modernize the traditional approach to jurisprudence in order to be present in the public and humanitarian sphere in the surrounding world. In this article, after explaining the concepts, only some of the challenging foundations of the traditional approach to women's rights; Just like the human personality, the legal personality and the spiritual personality of the woman have been investigated.

One of the topics worthy of research is the difference between worship and non- worship rulings in terms of inference and its form. In this essay, relying on the descriptive-analytical method, this issue has been investigated.The most important differences obtained are: the first rule  is a) being Shari'i of the nature, ruling and criterion of worship rulings, b) rationality of the nature, ruling and criterion of non-worship rulings  c) discovering the position of the Sharia from the none rejected Sire'  in worship rulings and not discovering his position from the none rejected Sire'  in non-worship d) the implication of  innocent Imam's  act on recommendation  in acts of worship and not implying recommendation in non-worship, the first rule is the  stability  of quantitative restrictions in acts of worship and the absence of such a rule in non-worships, the first rule is the issuance in the place of expressing the position of the Sharia in acts of worship and the absence of the first rule in acts of none  worship, the first rule is non-generalization in acts of worship and the absence of the first rule of non- generalization in acts of none worship.

The school of Motekallmin –theologians- (Baghdad) lost its effectiveness over time due to the loss of the first books and works, and this inefficiency showed itself more with the emergence of a wave of Shaz fatwas in the jurisprudence of Ibn Idris Hilli. On the other hand, Shia jurisprudence was criticized by the opponents due to its simplicity, and therefore the raging wave of opposition to Khabar Vahed gradually subsided and the theory of the authetiicity of Khabar Vahed was proposed by Allameh Hilli. Allameh Hilli, unlike his predecessors, established various arguments about the authenticity of Khabar Vahed, and following the theory of the authenticity of Khabar Vahed,, the discussion of the narrators' conditions also became relevant and important, and the dual-centered division of traditions  was replaced by four-fold diversification.Among these four types, due to the requirement of faith, Allameh considered the Movassaq ones as lacking in authenticity and considered only the Sahih  and the Hassan ones to be accepted. But on the other hand, he offered solutions to bring himself closer to the early companions in practice and to authenticate the narrations which are not Hassan or Sahih, and the theory of Injebar ( compensaion ) was the most important tool to achieve this.

From the point of view of Martyr Sadr, the distinctive feature of the new era of knowledge of principles - which Vahid Behbahani is the founder of - is the role of the personal state in the jurisprudence of the jurists of this era. He considers some jurists such as Sheikh Ansari to be influenced by this characteristic, which he believes, has led them to contradictions in their fundamental and jurisprudential views.This essay, in a descriptive and analytical method, while explaining the view of martyr Sadr, collects documents through the words of jurists such as Sheikh Ansari. According to the findings, the statement of Martyr Sadr faces some problems; Including the fact that he did not make his intention clear about the psychological state; Therefore, the inclusion of this element is not known for institutions such as obligatory precaution. Another problem is that it seems that there is basically no contradiction and confusion in the jurisprudence of the mentioned jurists in this regard, and as a result, the distinction he mentioned between Mohaqeq Khoi and the jurists before him is meaningless.

The effort of the jurists is aimed at deriving the Shari'i ruling and explaining the ruling in all areas and different aspects, including its types, Ijza and its phases. They discuss the process of deriving a jurisprudential ruling from the phases of issue and creation of the ruling, its actuality  and Tanajjoz. In the meantime, the study of the phase of Tanajjoz is very important, although this phase has not been discussed in the science of principles under the independent title, but it has been the focus of several important discussions of principles, including the practical principles, Ijza, and Musghatat (abrogating elements) of rulings. In this article, based on the descriptive and analytical method, various issues related to the position of the Tanajjoz have been clarified.