نشریه قرآن، فقه و حقوق اسلامی
پیاپی 16 (بهار و تابستان 1401)

The word “ḥila” (stratagem) is used in Islamic jurisprudence to indicate an action in which topic alteration is used to prevent the establishment of a defining or declaratory law or remove an established law. Many scholars believe that the perpetration of stratagem to change a law through topic alteration, including the case of usury, is prohibited from the viewpoint of Islamic law. It is even called “pious fraud” by laypeople.  A piece of evidence adopted to prove the ineffectiveness of using stratagem to change a law is the story of Aṣḥāb Sabt narrated in the noble Qur’ān. The results of this study, which has been done via a descriptive-analytical approach using library research method, demonstrate that the noble Qur’ān verses do not refer to the action of Aṣḥāb Sabt as a stratagem, and the assertions of the exegetes and related narrations in this regard do not enjoy a sufficient level of validity to prove the common interpretation made about the action of Aṣḥāb Sabt. Therefore, this story cannot be used to prove the prohibition of usury stratagems

In the separative criminal policy, different measures – either active or reactive – are foreseen for different crimes or criminals. The legitimacy of penal policy (i.e., the reactive measures) from the viewpoint of the Qur’ān needs rereading the noble Qur’ān verses. In the noble Qur’ān, not only harsh actions are foreseen against corruption and corrupt people, but also different actions are foreseen against the corruption of the elite and white-collar people in comparison to the crimes committed by ordinary people. This reaction represents the separative penal policy about white-collar offenders. This descriptive-analytical study concludes that the separative penal policy against criminals can be extracted from the noble Qur’ān verses, and in case the elites commit a crime, more sever punishments in comparison with the ordinary people are foreseen both in this and the other world. The reason for the more severe punishment is the protection of the legal status of the Islamic government agents.  Moreover, the bulkier and more severe punishment is not limited to the people or topics pointed out in the Qur’ān; rather, it is generalizable.

One of the crimes against Internal security is baghy (insolence), which means withdrawing from obedience to the just ruler. Despite its long history in penal jurisprudence, insolence can be examined from the viewpoint of documents, nature, conditions, punishment, its relation with political crimes, its position in the Iranian penal law, and the rate of its correspondence with Imāmīyya jurisprudence. In this study, qur’ānic verses, interpretive narrations, jurisprudential opinions, and Iranian penal regulations were inspected through a descriptive-analytical approach to determine the discretionary nature of insolence and the punishments of criminal behaviors related to the insurgence of rebels (before and after rebellion), the conditions necessary for insolence realization, the absolute generality and particularity relationship between the political crime and insolence, definition of insolence, principles and punishments of insolence in the Islamic Penal Law, and the stances of the legislator to insolence that agree and disagree with Imāmīyya penal jurisprudence

Despite the common belief among the Shī‘a and Sunnī jurists about the legitimacy of judgement and arbitration, some jurists have not accepted this legitimacy, with both groups adopting some qur’ānic verses and Islamic narrations to support their stance. Since the qur’ānic principles and evidences – due to the definiteness of their chain of transmission – have been disputed less than other jurisprudential evidences, it is necessary to examine the station of the judgement institution and its nature in the noble Qur’ān and to answer the question that if the right to use judgement in the qur’ānic verses is supported or not. If yes, what is the indication manner and limits? Running the discussion around the noble verses of the Qur’ān, trying to avoid using other jurisprudential evidences, and using the two theories of commission and arbitration about the nature of judgement, the judicial nature of judgment was extracted from the verses related to the necessity of impartiality and justness of the judge as well as the “denial of conjugal rights” verse. Because of their common nature, the overlap between the “judgement” institution in law with “arbitrative judgment” in jurisprudence was derived from the verses. Moreover, deeming faulty the verses used by the proponents of the illegitimacy of arbitrative judgment, from among the verses proposed by the proponents of the legitimacy of this institution, only the indication of the “denial of conjugal rights” verse for arbitration is accepted. Moreover, by rejecting the theory that the verb “fab‘athū” in this verse is only for guidance and accepting that this verb functions as an imperative verb, the possibility to generalize it to other cases and non-conjugal disagreements was demonstrated based on intellectuals’ conduct, importance of primacy, and some related narrations.

Kohlberg, the famous Shī‘a researcher, believes that taqīyya (precautionary concealment) is a characteristic of the Shī‘as who justified it from the advent of Imāmīyya during the era of Imām Bāqir (a) based on the ambiguous meanings of some qur’ānic verses. On the other hand, Imāmīyya jurisprudents believe that the rational principle of precautionary concealment had been used by the previous nations as well. They also believe that in the Imāmīyya jurisprudence, precautionary concealment means verbal and behavioral pretention against opponents in order to prevent harms, so it comes into the interest of the Five Rules. Now the question revolves around the origin of the difference between these two viewpoints. Examining these two viewpoints toward Precautionary Concealment verses for the first time, this descriptive-analytical study suggests that in order to understand the nature of precautionary concealment based on the qur’ānic verses, this famous Shī‘a researcher has relied mainly on Sunnī resources in line with a few early Shī‘a resources, while forgetting the rich content of later or contemporary jurisprudential resources. Thus, his viewpoint suffers from lack of reliance on valid resources.

Penal law can be likened to a triangular shape, with one of the main angles being crime or criminal phenomenon. Knowing the nature and concept of crime is highly important. In the penal system of Islam, one of the disputed topics is the concept and nature of crime. Some take it as the religiously prohibited matters that have been clarified by God through setting general or discretionary punishments. The religiously prohibited matter involves perpetrating a prohibited action or lack of action for a matter the person should have done. On the other hand, the most important source of religious legislation is the noble Qur’ān. How is crime defined and clarified in this important resource? The primary question of this study is “What behavior does the noble Qur’ān call a crime and what is the nature of a crime in the noble Qur’ān?” Using a descriptive-analytical approach and relying on the Qur’ān and interpretive narrations, this study addresses the concept and nature of crime in its legal meaning.  It seems that crime in the noble Qur’ān language means doing a behavior that has been banned by the divine legislator and has been given a punishment if committed. In other words, crime means opposition to the orders and prohibitions of the divine legislator that generally have a social aspect. Finally, from the viewpoint of the noble Qur’ān, the nature of a sin – especially when its meaning is close to the legal meaning of crime, one that leads to a punishment – is real and has been determined by the divine legislator based on the occurred interests and corruptions.