فصلنامه فقه و اصول
پیاپی 88 (بهار 1391)

Division of profits from common properties, known in Islamic jurisprudence as mahāyāt, is a suitable solution for preventing the loss resulting from commonage and can allow for the possibility of equitable vindication of the property and prevention of its idleness and is a wise procedure for sustaining the partnership. Nevertheless, the civil law and the other Iranian laws have not dealt with the issue of dividing profits. This research is intended to examine different dimensions of this institution and to present some solutions for some of the ambiguities.This article will provide an answer to the question as to, from the viewpoint of Islamic schools’ law, how far and in what conditions this type of division would be possible and what its nature and impacts would be like. In the first part of the article, a definition of mahāyāt and its elements is presented; then, different trends brought up in determining the nature of this institution are recounted and various types of mahāyāt are touched upon; and in the final part, the impacts of this division is explained.

The renowned majority of legal theoreticians (uṣūliyyūn) believe that the premises of ḥikmat are three: 1. the possibility of absoluteness and limitation (iṭlāq wa taqyīd); 2. non-provision of evidence (qarīna); and 3the speaker being in an expressive position. Muḥaqqiq Khurāsānī, however, has added a fourth premise, i.e., lack of agreed certitude in conversing face to face (takhātub). Some later legal theoreticians, such as Muḥaqqiq Nā’īnī and the disciples of his school of thought have opposed to this addition and rejected it; nevertheless, some dignitaries like Muḥaqqiq Arāqī and Muḥaqqiq Iṣfahānī have supported it.This article appraises the viewpoints and arguments of the proponents and opponents of this addition and after rejecting the view of the proponents, goes on to prove the strength and solidity of the opponents’ view.

The extent of “benefits”, as the subject of khums, is one of the controversial discourses among the Imāmī jurists, which is of great importance because of its applicability. The “acquired benefits” and “benefits in general” are the two significant views in the discourses concerning khums. In this research, the evidences for any of these two views are critically reviewed. For the first view, two evidences (verses and traditions) and for the second view, four evidences (verses, traditions, conventional connotation, and annulment of specification), are brought up. To the author’s opinion, from among these evidences, the verse on khums and some traditions signify the view of benefits in general.

Murder is among the most abominable human acts and the most criminal behavior of mankind; in Shī’a jurisprudence, punishment for deliberate murder is qiṣāṣ (retaliated punishment) in general. On the basis of this general principle, murder of child by father is regarded as an exception. On that account, the ruling concerning the mother in this respect is set forth and with respect to the solidity of evidences of the opponents to the qiṣāṣ of the mother, a reappraisal of the legal principles of this ruling is being felt. To this end, the present article deals with the refinement of the basis of the ruling concerning the father through annulment of his specificity, and contrary to the generally accepted view, which regards the “paternal relation” as the criterion for this ruling, implies the “parental relation” as the annulment of the basis of the ruling implied from the above evidences. Furthermore, given the other disputes entered into the evidences of the proponents of the qiṣāṣ of the mother as well as the evidences presented in the claim under discussion, the article regards the mother as annexed to the father in the ruling of non-retaliated punishment for murder of the child, and even given the inclusion of the traditions in relation to the mother, it considers as possible the inclusion of the ruling to the mother from the very beginning and without need for annexation.

Despite the challenges noticed in the meaning and concept of pederasty (lawāṭ), different viewpoints have always existed among the jurists concerning the punishment of the pederast, to the extent that some jurists have decreed death penalty equally for both the married and unmarried pederast. In contrast, some others have reconciled among the related traditions in this respect and considered the same punishment for pederasty as the one for adultery and have distinguished between the married and the unmarried pederast. Quoting various opinions as well as analyzing the evidences derived from traditions concerning the punishment of the pederast, the present article considers as constrainable the absoluteness of the traditions referred to by the jurists who believe in the equal punishment for the married and unmarried pederast and maintains that the exigency of the reconciliation among the traditions is that the pederast, in case of being married, is sentenced to death and if unmarried is sentenced to lashes. Of course, as for pederasty in case of non-penetration (ghayr īqāb), several views are recognizable in Imāmiya jurisprudence, as the generally accepted view has considered lashes and some jurists like Shaykh Ṭūsī in Al-Nihāya have decreed lapidation for the married man and lashes for the unmarried man. The Islamic penal law, on the basis of some traditions, has simply considered death penalty as the punishment for pederasty in case of penetration. Examining the objections made against the lawmaker’s definition of pederasty, the present research analyzes article 110 of Iranian Civil Law and tries to criticize the lawmaker’s legislative function besides analyzing the lawmaker’s basis in establishing punishment for pederasty.

One of the issues that has always been of interest to and emphasized by Muslim scholars in various sources of jurisprudence, principles, and other Islamic texts is the issue of “preserving the socio-political system.” This endeavor results from the importance of community, integration of people’s social life, and avoidance of anarchy and disturbances in social affairs in Islam. This issue is so widely applicable that it can be brought up and examined as an important and pervasive legal principle; although such a principle is not mentioned in earlier legal works. However, such questions as what meaning the term niẓām has been used in, what ranks it enjoys, what relation exists between these ranks, and what rulings each one has, are the subject of the present research, which is regarded as an innovation in its own right. The research method employed in this article is the descriptive and library method; that is to say, first, with respect to its lexical and technical applications, various types of niẓām are recounted, and then the instances for the application of this issue in jurists’ language are examined.

Analogy and how to treat it is among the earliest issues in the jurisprudence and principles of legal schools. Meanwhile, although in Shī‘ism the universal approach in this respect has since long ago been a negative one and it still continues to be so, the important issue that has to be taken into further consideration and more deeply contemplated on despite the theological viewpoints of the jurists is their treatment of analogy in legal books. In legal books, certain instances can be found that seem to be an evidence of using analogy. This does not contradict the widely known Shī‘ī view, namely, invalidity of analogy.According to this approach and on the basis of Jawāhir al-Kalām, the present article has presented some examples, which are asserted to be analogical or the definition of analogy applies to them. It is also intended to answer the questions raised in this respect.