نشریه مطالعات تطبیقی فقه و اصول مذاهب
سال ششم شماره 1 (بهار و تابستان 1402)

One of the factors in validity of deals is Gharar. Although all of the jurists consider Gharar as one of the factors effective regarding the validity of the contract but some of the contracts and deals can be considered valid with existence of Gharar and some may be considered invalid. This may be indicative that scale of Gharar may be an effective on the decree of the deals. With studying the saying of jurists we can conclude that they did not introduce the factors of the scale of Gharar. Some of the jurists say that custom is the deciding factor and others considers the severity as a factor but they don’t introduce a criterion to measure its severity. Its seems that leavimg it to custom or introducing a vauge criterion is not right and there should be a specified criterion. Based on reviewing the texts of Quran and Sunna, including the first and last verses of surah Muzamal as well as two Hadiths “one third and one third is a lot” and “the food of two is enough for three” it can be said that there is a measure and a rule between small and large Gharar affecting the validity and invalidity of a contract.

According to ibrā’ (acquittal), a person relinquishes the right to claim what is owed to the other party. The wife’s right over the stipulated dower as a financial right can be subject to ibrā’. Knowing and being ignorant to the amount of dowry and the time of its obligation on the spouse are factors influencing the decree of such acquittal. The present study, based on a descriptive-analytical method with library tools, tries to answer this basic question: “What is the ruling on ibrā’ mahr al-mithl (acquittal of stipulated dower) from the perspective of Imami and Sunni jurists?” There are two views among the Imami jurists regarding the time of legal obligation of mahr al-mithl: Some believe that mahr al-mithl is obligatory through marriage, resulting in the validity of acquittal, while others believe that it is obligatory after intercourse, resulting in the invalidity of acquittal before intercourse. The Imami jurists mostly do not consider ignorance of the amount of mahr al-mithl to be effective in the validity of acquittal. Shafi'i, Maliki, and Hanafi jurists also consider the intercourse to cause the obligation of mahr al-mithl; However, the Shafi'i jurists do not consider ignorance of the amount of mahr al-mithl to be effective in the invalidity of discharge, and the Maliki and Hanafi jurists do not consider the lack of knowledge of the amount of mahr al-mithl as an obstacle to the validity of acquittal. According to Hanbalis, mahr al-mithl becomes obligatory with the marriage contract, and intercourse and ignorance of the amount of the dowry do not play a role in it. It seems that since the dowry is in exchange for baḍ‘, it is the penetration (intercourse) that causes the obligation of mahr al-mithl, and so after the penetration, in order for the marriage not to be a mere exchange, ignorance of the amount of mahr al-mithl does not affect its validity, unless the ignorance is such that the wife is imagined to lack intention.

It has been recognized that bringing men to men for sodomy and men to women for adultery constitutes a crime of procurement according to criminal law and, accordingly, is a fixed (ḥadd) offense in the Islamic Penal Code approved in 2012. The Islamic legislator has determined the punishment for this offense. From a jurisprudential perspective, the legislator has imposed the punishment of seventy-five lashings for the procurement for the first time. Those who act as panders a second time will be exiled in addition to being whipped. Procurement crimes can be viewed as the beginning of sexual crimes such as adultery and sodomy within a society. Through the introduction of the perpetrators to each other, the pimp helps to remove the obstacles to the crime and paves the way for sexual crime in society. Although the exclusiveness of the punishment of lashing in the first instance of procurement comes from a jurisprudential perspective, it seems that the punishment does not adequately deter the crime of procurement and does not provide enough deterrent to prevent it from occurring again. The careful study of the jurisprudential sources shows that many Imami jurists, citing narrative reasons, regarded the punishment of exile as necessary for the first-time occurrence of procuring. Based on the descriptive-analytical method, this study examines conflicting jurisprudential opinions and considers the principle of proportionality to criticize the Article 243 of the Criminal Code, while keeping procurement under the category of a criminal offense. As a result, the punishment of exile is proposed to be transferred to the first-time occurrence of procurement in order to amend the Article 243.

Ta’wīl, i.e. passing from the exoteric meaning of the word to the esoteric meaning, is a method of understanding the text. Since this method seems to be effective for understanding jurisprudential narrative proofs, and on the other hand, there are popular rules in the words of the science of usūl al-fiqh, such as the Appearance Principle, which prevent the interpretive (ta’wīl) approach, it is necessary to evaluate the status of ta’wīl in usūl al-fiqh, as well as, its relation with the Appearance Principle and its difference with interpretation (tafsīr). The main purpose of this research is to recognize the roots of ta’wīl in usūl al-fiqh. The worthy efforts of some of usūlīs in this regard are commendable, although such efforts have been neglected. Based on the descriptive-analytical method, this article tries to identify and introduce them. The most important findings are as follows: the necessity of not being satisfied with the inherent relationship between word and meaning, the necessity of establishing the absolute will of the speaker, the public plural, the necessity of adapting the rules used from the text to the inherent good and bad, synchronizing with the holy legislator intentions, distinguishing between direct and indirect audience, the possibility of departing from the implication of appearance in the assumption of corroboration, and the superiority of conventional meaning over literal meaning. These findings show the interpretive (ta’wīl) capacity of words in usūl al-fiqh to the extent of classical hermeneutics, which attaches ta’wīl to the text, the history of the text, and the intention of the author.

The acceptance of unilateral will as one of the sources of commitments in the comparative jurisprudence and the Iranian law is dubitable. According to the renowned majority of the Imami jurists and the Sunni jurisprudential schools, as well as some lawyers, īqā' (unilateral legal act), like a contract, cannot generally create a commitment, but is a secondary and exceptional source for commitments. However, as an unpopular opinion, īqā' is not limited to the cases foreseen in Shari'a and law, but as a general rule, it can create a commitment against its owner and for the benefit of another. Accordingly, the authors try to examine the jurisprudential and legal foundations of this issue and analyze the opinions regarding it. The data has been collected by library method and then analyzed descriptively and analytically. The results show that, in order for social trust to be established among the members of the society and the legal security of others to remain immune from attack, the expresser of the will must adhere to his commitment and not shy away from this legal commitment.

Different impressions of religious texts have always been one of the controversial issues, and in the science of interpretation and principles of jurisprudence, certain rules and procedures for the correct interpretation of texts have been presented. However, different perusals of texts have a history as old as jurisprudence. The need for interpretation of texts in the historical horizon of issuance is among the important rules of interpretation that can help to prefer one of the jurisprudential perusals over the others. One of the differences in jurisprudence of Islamic schools is jahr (raising the voice) when reciting bismillah (In the Name of Allah) in prayer. The Shāfi‘īs and Imāmīs are in favor of jahr, while the Ḥanafīs, Mālikīs and Ḥanbalīs are in favor of non-jahr (i.e., lowering the voice). The main reason for both viewpoints is making reference to identical traditions that express the quality of the Imamate of the Prophet (S.A.W.). The present research has investigated the influence of the historical attitude of jurists on the interpretation of identical traditions with a descriptive-analytical method and by citing library sources; and by presenting historical evidence and forming a hadith family, it has shown that the mentioned traditions do not necessarily indicate the negation of bismila and it is clarified by the induction of the related hadiths that the mention of the phrases of the first verse in the hadiths was to refer to the sūra and the necessity of reciting Sūrat al-Fātiḥa in prayer, which due to the acceptance and popularity of the names of the sūras from the second century onwards, this phrase has been taken as the negation of bismila.

In Islamic jurisprudence, public treasury has various expenditures. Using the descriptive-analytic method, this research studies Imāmī and Shāfi’ī jurisprudences on the question as to upon whom the responsibility for the costs of public interests that cannot be procured in any other way should fall. There are various cases in Imāmī jurisprudence; however, the present research examines five cases: First: alimony for the martyrs’ families; according to both Imāmī and Shāfi’ī jurists, they consensually say that fighters (mujāhidīn) and their families should be given serious attention, especially in terms of economic and livelihood, for jihad and defense of the Islamic world are considered as the fundamental issues and great interests of Muslims. Second: marriage expenses of the needy; Imāmī jurists permit using various sources such as a share of “fī sabīl Allah” (for the sake of God) and public treasury to cover such expenses. Some Shāfi'īs including “Shirbīnī” pays attention to this issue. Third: alimony of the abandoned (laqīt); According to Imāmī jurists, the responsibility for expenses and alimony of an abandoned is to the public treasury. Shāfi'īs believe that if an abandoned possesses property, multaqit (finder of the abandoned) could consume it with the permission of the ruler, otherwise, the public treasury is responsible for paying alimony to the abandoned. Fourth: The cost of the shroud and burial of deceased Muslims who cannot afford it; according to Imāmī jurists, if someone did not undertake it voluntarily as a most recommended deed, the State can conduct his/her burial using the public treasury and a share of “for the sake of God”. Shāfi'īs also pay attention to this issue so that some order to pay the public treasury for it. Fifth: Paying debts of debtors; based on Imāmī jurisprudence, the public treasury and its sources such as almsgiving (zakat) and public property (anfāl) could be used for it, while in Shāfi'ī’s, if the debtor does not have financial ability, he/she is given a deadline until he/she pays his/her debt. Otherwise, his/her debt would be paid from the share of zakat of “wal-ghārimīn” (and the debtors).

As Islam emerged and spread in Iran, many Iranian customs and traditions underwent serious changes in personal and social relations. The marriage contract is one of the social contracts that have taken a new form due to these changes. However, in recent years, some young Iranians returning to their previous traditions replaced the shar‘ī marriage with a new marriage called “Aryan marriage contract” (aqd-i āriyā’ī) to set their marriage bond. After a while, due to the belief that it is illegitimate, it was banned in marriage offices. Using the analytical descriptive method, this article explains and analyzes the content of this contract and its legitimacy based on the teachings of Islam. Through reading this article, it would be clear that the mere emergence of the Aryan marriage contract and some differences in the appearance of its implementation with the shar‘ī marriage are not considered as proof of its illegitimacy; this contract enjoys the basic elements of creating a marriage bond in Islam, that is, it is correct and legitimate

One of the Qur’anic rulings in the field of family is the payment of alimony (nafaqah) to the wife by her husband. Since in the contemporary society, women have an equal or superior economic and social position that sometimes the compliance or non-compliance of this task causes problems between couples, the present study by using the descriptive-analytical method with document-library tools aims to answer the questions, “What is the legal basis of the payment of alimony in the permanent marriage?” and “Can the payment of alimony be a function of the economic conditions of the couple?” Findings indicate that the concept of alimony directly implies its philosophy, which is to meet the needs of wife through husband. One of the main Qur'anic foundations also expresses the economic needs of women due to lack of employment and income. It also proves the rationality of such obligation. Also, the philosophy of need is confirmed on the basis of narratives. From the jurisprudential view, alimony is more compatible with the principles of “need” and “compensation of retention.” Reasons such as non-devotional nature of alimony, non-compensation of alimony, theory of validity of non-alimony condition, rightfulness of alimony, conventional conjecture and exigencies of society, and macro policies of the country prove that alimony obligation is based on the woman's need and in case of her need, it is absolutely necessary, but in case of self-sufficiency and having income, its ruling can be determined based on its philosophy. In addition, in case of return of need, the ruling of obligation can be established again.

Islamic jurisprudential schools have presented various reasons to justify merchandise (Ebzae) and its permissibility while offering diverse definitions and interpretations of its essence. Given the significant influence of jurisprudential principles on the nature of Ebzae, it becomes imperative to assess these jurisprudential fundamentals critically. This research addresses the central question: "What are the reasons supporting the permissibility of Ebzae according to Islamic jurisprudential schools?" The research hypothesis posits that some of the reasons put forth to establish the permissibility of Ebzae lack sufficient justification. The present study employs a descriptive-analytical approach and relies on desk studies of both Imamiyyah jurisprudence and Sunni jurisprudence schools.Furthermore, the research findings indicate that variations in the interpretation of Ebzae have led to disputes regarding the fundamental requirement of "voluntariness or freedom" in Ebzae and the entitlement to fair and equitable compensation. Simultaneously, this divergence has resulted in some individuals regarding Ebzae as an independent contract, while others perceive it as a subsidiary of unilateral contracts or advocacy agreements. In some instances, due to factors such as the capital owner's lack of familiarity with business practices, Ebzae is viewed as benevolent and assistance in fulfilling needs, consistent with religious recommendations. It is emphasized that a broker has the right to receive remuneration, reflecting the dignity of the Muslim transaction unless otherwise specified that the service is pro bono.

The wise solution of Le’an's institution in Islamic criminal policy, based on God's grace, legislates to overcome difficulties in married life. Its wisdom lies not only in solving challenges faced by families involved in infidelity crises but also in preventing self-effort and arbitrary actions to solve such problems. However, the effectiveness of this institution is limited by the requirement of "seeing" the wife's betrayal. Therefore, the research question is whether, according to the jurisprudence of Islamic schools, proof of blasphemy depends on the husband witnessing his wife's adultery or not. Islamic religions differ regarding this "seeing" condition. The Imami jurists, except Shahid Sani, and one view of the Maliki jurists consider witnessing the wife's adultery as a condition for proving blasphemy. Hence, they do not view cursing a blind person or someone who has not witnessed their wife's illicit relationship as valid. However, according to Zaidiyyah, Hanafiyyah, Bashafiyyah, Hanbaliyyah, and other viewpoints of Malikiyyah jurists, witnessing is not a condition, and even a blind person who has not seen their wife's adultery can perform laan. Therefore, the subjectivity of the "seeing" condition in Le’an is not defensible. This goal can be achieved by describing and analyzing the propositions of Islamic jurisprudence and human sciences, as well as library data. The result is that the lack of subjectivity in this condition not only protects more individuals involved in ominous phenomena under the cover of the Le’an's institution, but also eases the bottleneck faced by the criminal justice system in executing justice for the aforementioned individuals.

The Qur'an is the most important source of legislation in all Islamic denominations. Sunnah, i.e. the sayings, actions, and tacit approval of the Prophet Muhammad (pbuh) or the Infallibles (as), after the Qur'an, is considered also the most widely used source among all Islamic sects. A criterion that can play an important role in evaluating hadiths is considering the verses clarifying the general purposes of sharia (maqāṣid al-sharīʿa). These verses do not explain divine rulings (aḥkām), but rather explain the general goals of the sharia or express the wisdom behind the rulings. This article examines the role of these goals in evaluating hadiths, using the descriptive-analytical method. It studies and examines the functions of the verses clarifying the goals in relation to the extracted hadiths. Attention to the explicit Qur'anic verses which indicate the general goals can lead to new interpretations of such hadiths, so that without considering these goals, such outward meaning (ẓuhūr) would not be established. These Qur'anic verses have a significant impact on the understanding and interpretation, as well as the restriction and expansion of the hadiths. If they transgress the indisputable preferences (murajjiḥāt-i manṣūṣah) they may function as one of the preferences of the contradiction issue (bāb-i taʿāruḍ). Eventually, recognizing these general goals can be considered as a criterion for assessing the soundness (ṣiḥat) of hadiths. In one of the stages of ijtihad, i.e. facing religious narratives, there is a significant discrepancy among contemporary Shi'ite researchers regarding the application of the maqāṣid al-sharīʿa. The author intends to refer to the relevant legal and theoretical discussions to prove this point.