فصلنامه فقه و اصول
پیاپی 90 (پاییز 1391)

The theory of Muḥammad Jawād Mughniya entitled “social understanding of statutes”، is the evolved mechanism for the refinement of the basis of a ruling (tanqīḥ-i manāṭ) in legal reasoning (ijtihād) process، which has been developed according to such principles and criteria as objectives of sharī‘a، convention، and contextual manifestation. Heeding the objectives of sharī‘a، in view of the temporal and spatial elements، creates a type of definite proportion between the subject and the ordinance and maintains a manifestation for the context of the lawmaker’s speech، which will be valid on the basis of the rational principle of the authority of manifestation. The modern conventional understanding of the subject mentioned in the context of traditions annuls the specification and provides the jurisprudent with the chance to interpret and expand the subject and manage to discover the primary ordinances about it. The theory of “social understanding of statutes” applies to that category of legal ordinances that are both devised on the basis of social interests of human beings rather than their human nature and the lack of evidence denoting the non-interpretation of statute. Thus، devotional ordinances lie outside the limits of this rule and the theory is executable in social and transactional issues within its conditions. One of the most important outcomes of this theory is that the existing statutes and traditions have the capacity to be issued for most of the new subjects، just like the primary ordinance، without falling into the maelstrom of analogy or appealing too much to the secondary topics; an outcome that، according to Shahīd Ṣadr، unravels a great complication in jurisprudence.

The issue of validity and non-validity of absolute conjecture، although frequently studied and researched by great scholars، is still in need of further research، since the studies and researches carried out so far are typically based on the presuppositions that have been regarded as indisputable and needless of study and research; whereas، in fact، they are not indisputable and need further research. The principle of non-validity of conjecture and exclusiveness of essential authority to absoluteness is one of these presuppositions that the writer has dared to re-examine. After redefining such concepts as “ḥujjiyya” and “‘ilm” and resolving the impediments to asserting the validity of absolute conjecture، he has found the chance to believe in the inherent validity of conjecture and، while examining the arguments of the repudiators، to uncover the fact that the verses، traditions، and intellectual exigencies، contrary to what is presumed، do not disprove the validity of rational conjecture، and naturally regard it as valid. Thus، the writer opens up a third way through the non-validity of the absolute conjecture and its validity due to impediment (insidād) and admits that in case of the incompleteness of this way، the non-validity of absolute conjecture is to be accepted، because the reason for impediment is incomplete. However، it is to be said that the writer’s ultimate goal in writing this article is not necessarily proving the validity of absolute conjecture; rather، it is to open up a way to deeper research on this issue.

The applicability of executing the qiṣāṣ punishment through donation of organs is a novel topic and at the same time influential in safeguarding the blessings of human health and life. The legitimacy of this procedure requires delving into legal views and opinions. The renowned majority of Imāmī jurists believe that the procedure of executing punishment in blood-vengeance has no topicality (relevance)، and punishment has to be executed in a way that inflicts the least suffering on the criminal. In contrast، some other jurists believe that the equality and resemblance (mumāthilat) between the quality and procedure of executing the punishment and the perpetrated crime is an essential condition. According to this group of jurists، upon committing a murder، the whole body of the murderer is made available to the legal guardians (avengers of blood)، who have carte blanche in executing blood vengeance in proportion to the features of the perpetrated crime. Accepting the above-mentioned approach، the necessity of resemblance in the quality of punishment and the perpetrated crime is no longer an option and the blood vengeance can be administered using methods that inflict the least pain and suffering on the criminal. It is for this reason that the renowned majority of Imāmī jurists have on one hand emphasized on administration of blood vengeance with a sharp sword and on the other hand have accepted using the new methods that conform to the criteria presented above. Therefore، it seems that the procedure of donation of organ can also be used in administration of blood vengeance.

The impossibility of qiṣāṣ of father for murdering the child is unanimously agreed upon by the Imāmī jursprudents; however، presuming that the father does not directly commit murder of the child and the child inherits the right for qiṣāṣ against the father from the victim of crime، there is disagreement among the jurisprudent as to whether the child can retaliate the father in qiṣāṣ or not. In this respect، a group of jurisprudents believe in the impossibility of qiṣāṣ of father. The evidences adduced by these jurisprudents include: priority analogy، the narration lā yaqādu wālidun bi waladihī (father is not retaliated for [killing] the child)، the narration on qadhf (false accusation of unchastity)، the general evidences concerning enjoinment of doing good to parents and keeping their company honorably. A group of jurists have issued a legal decision (ḥukm) for the possibility of qiṣāṣ of father on this matter، too. This group of jurisprudents، while rejecting the allusion to the priority analogy or to the narration on qadhf، have resorted to being content with agreed certitude in withdrawal from the application of qiṣāṣ evidences and have regarded the issue in question as included in generalities of qiṣāṣ evidences. In this article، while doing a critical review of the evidences of both groups، the second view is preferred. Islamic Penal Code، approved in 1370/1991، as well as the draft of Islamic Penal Code of 1388/2009 simply point out that if the murderer is the father or grandfather of the murdered person and the presumption discussed in this article is briefly carried out. Therefore، the jurisprudential analysis of this issue is of significance in clarifying the legal decision of this issue.

Although the corrupted condition is not protected by sanctions، there are three beliefs as to whether its corruption (fasād) permeates the contract (‘aqd) or not: theory of fasād، theory of non-permeation of fasād، theory of detailed specification (tafṣīl). The proponents of the latter theory claim the total exclusion of the condition that causes disturbance in the basic components of the contract – such as contradicting condition of essence and unidentified condition – and thus regard its invalidity as indisputable، and in an absolute manner، believe in the non-corruption of other conditions. The present article deals with the notion that the contradicting condition would not cause disturbance in the basic components of the contract and the unidentified condition، which makes the transaction uncertain and forbidden، in case the reason for forbidding is merely the loss inflicted upon one of the parties، its non-corruption can be maintained by granting cancellation right to the one who undergoes a loss.

Refinement of the basis of a ruling (tanqīḥ al-manāṭ) is one of the rules of principles of jurisprudence، which is applied to the process of inference and for achieving the basis of a ruling (manāṭ). In general، it is a type of generalization of the rulings that have been issued for specific events and instances and in this way those features of the specific event or person that are not effective in the ruling are identified; then، these features are put aside and the ruling is permeated to all similar instances and in case it is certain، it is authorized and valid. Tanqīḥ al-manāṭ is among the discourses concerning expressions (alfāẓ) and relying on them is the same as relying on the general or the absolute. Achieving the basis of a ruling is possible through expertise and the intellectual expanse of the jurisprudent، proportion of ordinance and subject، as well as accurate conventional understanding. Tanqīḥ al-manāṭ is seen more in those jurisprudential branches that have social aspects، arrange sound and just relationship among the members of society، and have less precedent in statutes. If in legal law (sharī‘a)، the effective attribute is explicitly stated and there should be no nood for annulment of the attributes and the correlations، it is called realization of manāṭ، which is legally valid. However، if the inference is not based on an effective method and the manāṭ is achieved irrespective of the statute، it is phrased as takhrīj (deduction) of manāṭ، which is not valid from the Imāmī point of view.

The concept of dhimma and ‘uhda (obligation and undertaking) comprises one of the very important subdivisions of commitments in Shī‘a jurisprudence. The application of these two terms is very common in legal texts، both in discourses on devotional acts and the discourses concerning transactions (including transactions in specific sense and delictual liability - ḍimān). Some contemporary jurisprudents have tried to relate the difference between these two terms to the contrast between the two terms ‘ayn (physical goods) and dayn (debt) and to introduce dhimma and ‘uhda as successfully receptacles for ‘ayn and dayn. The present article is intended to verify this theory. According to the author، the contrast between dhimma and ‘uhda actually refers to the contrast between the impositive (taklīfī) obligation and positive (waḍ‘ī) obligation: ‘uhda is a receptacle for impositive obligations and dhimma is a receptacle for positive obligations.