فصلنامه فقه و اصول
پیاپی 93 (تابستان 1392)

One of the significant legal-theological rule، which has drawn little attention in legal texts، is the rule of “not reprimanding a person for another person’s sin and the unaccountability of the person for other people’s action،” which is expressed as part of āya 164 of Sūrat al-An‘ām، ﴾no bearer shall bear another''s burden﴿. According to this rule، which includes both matters of this world and the Hereafter، no legal ruling should leave the responsibility of a person’s action upon others. Although some jurists have dispersedly relied on this rule in inference of rulings، some legal rulings have also been noticed in opposition to this rule. The legal rulings examined in this article include: rulings about disbelievers’ children، bastards and their otherworldly fate because of their parents، and the tormenting of the dead because of their relatives’ weeping. Furthermore، the role of this rule in the content criticism of the traditions has also been analyzed.

Six causes of revelation have been related concerning āya 115 of Sūrat al-Baqara; i. e. the noble āya، ﴾To Allah belong the east and the west: so whichever way you turn، there is the face of Allah! Allah is indeed all-bounteous، all-knowing. ﴿ Because of their relation through the Shī‘a، two of these causes of Revelation have attracted more attention of the Imāmī jurisprudents. These two traditions have had a special role in jurisprudential studies concerning qibla and have been helpful in inference of rulings about mutaḥarrī (inquiry) and mutaḥayyir (confused). However، sometimes the legal outcomes of these traditions have been contradictory; those who have regarded the āya as concerning mutaḥayyir، have deemed as sufficient his prayer in one direction. But the advocates of the generally accepted view، who deem as necessary the praying of mutaḥayyir in four directions، appeal to another cause of Revelation that views the āya to be concerning the supererogatory prayer. At the same time، some believe that there is no contradiction between these two traditions and the Revelation of the āya concerning both; because the āya is general and only the scholar and whoever is considered as a scholar is an exception to this generality in terms of a religious duty (farīḍa) and because of the āya of turning one’s face toward the Holy Mosque، ﴾so turn your face towards the Holy Mosque. ﴿ (Sūrat al-Baqara: 144). Consequently، although the sufficiency of a prayer is more righteous، its repetition is more consistent with discretion. This article undertakes a detailed examination of this issue and a research into other dimensions of the status of the cause of Revelations in the impressions of Imāmī jurists about the āya. Thereby، it attempts to witness the relation of one of the Qur’ānic sciences – i. e.، cause of Revelation – to the science of jurisprudence.

Most of the legal theoreticians (uṣūlīs) have taken the narrational publicity as the prevalence and spread of relating traditions in books and collections of ḥadīth، according to which، the narrational publicity would not only not compensate the weakness of the sanad of the ḥadīth، but also would not be considered as among the causes and factors of preference in the contradiction of traditions، either; because the frequent relation of a ḥadīth in books is no reason for its authenticity. Many are the popular matters that are baseless and have no authenticity whatsoever! Narrational publicity would not create a preference for the ḥadīth by itself and without accompanying practical publicity; rather، if a generally accepted ḥadīth is repudiated by the jurists، it is regarded as a sign for its weakness.

Nowadays، discussion about and analysis of ṣiḥḥa (truth) and fasād (falsehood) is a focus of attention in theological (uṣūlī) writings. This issue necessitates an explanation of the present structure of the discourse of ṣiḥḥa and fasād in an integrated and logical way. Thereby، to achieve this important task، the present article undertakes a descriptive-analytical research based on a library-method and with a problem-oriented view، and formulates the discourses of ṣiḥḥa and fasād into two fields of conceptology and study of legal decisions and goes on to express and study the viewpoints and arguments of the legal theoreticians (uṣūl scholars) concerning such discourses as: the meaning of ṣiḥḥa and fasād; opposition (taqābul)، contradiction (ma‘rūḍ)، and variations of ṣiḥḥa and fasād; and also the abstractness، rationality، or fabricatedness of ṣiḥḥa and fasād and the propounded details. Thus، besides unveiling the present logical arrangement of the discourse، it proceeds to indicate the course of development of the discourse، as well.

One of the issues disagreed among the Islamic jurists is the possibility of the actualization of justice among the people of the Scripture. The renowned majority of the jurists believe in the non-actualization of justice among the disbelievers in general. This article، at first، points out the evidences of the renowned majority of the jurists on the non-actualization of justice among the people of the Scripture. Then، it examines the evidences of those believing in the actualization of justice among the people of the Scripture; and finally، it proposes، by way of legal decision (ijtahād)، the non-actualization of justice – in its jurisprudential sense – among the disbelievers.

Sometimes there comes a pronoun after a common [individual]، which has apparently been used as the object of a legal decision (ḥukm)، and by means of external evidence، the certainty is achieved that this pronoun refers to some common individuals. Then، the question arises as to whether reference of the pronoun to some common individuals would cause its designation or the common generality continues to be valid. In their encounter with the two manifestations existing in the issue، the uṣūlīs (legal theoreticians) have mainly presented three different theories، each one of which brings up a specific jurisprudential corollary: 1. Priority of iṣālat al-umūm (principle of generality) and dominion over pronoun، 2. Abandoning iṣālat al-umūm and asserting the inapplicability of utilization، 3. Theoretical standstill and practical reference to the principles of practice. The present writing explains and examines different views with a comparative study and in eventually approves the second view.

Buying and selling human organs is among the newly-arisen jurisprudential issues، about which the Imāmī jurists have opted two theories in response to this issue. Some of them have regarded the situational decree of buying and selling human organs as invalidity according to the traditions comprising of the contents invalidating the purchase of dead animal and the consensus on it، and have viewed its impositive decree as prohibition. In contrast، another group have regarded this buying and selling as lawful and sound according to the generalities of the Qur’ānic verses and traditions. In this writing، while critically reviewing the arguments of those maintaining the prohibition and invalidity of buying and selling the body organs and with respect to deriving rational and lawful benefits from organ transplantation including saving the life of a person or relieving a person from pain and suffering، which is in itself rationally motivated، and in view of the inclusion of the generalities of sale contract (bay‘) evidences in the permissibility and soundness of buying and selling the objects that have rational benefits and motives، the permissibility and soundness of this theory is emphasized.