فصلنامه فقه و اصول
پیاپی 94 (پاییز 1392)

Transferring the mind from surface structure (lafẓ) to meaning is called verbal signification (dilālat-i lafẓī)، which is divided into three types of comparative، implicative (taḍammunī)، and obligatory (iltizāmī) in terms of the relation between the signification and the meaning of the signified. Given the three stages of signification، which include the figurative، the declarative-explanatory (tafhīmī)، and the declarative-serious stages and given the different origins of signification in every stage، it is specified that the verbal conventional (waḍ‘ī) signification only includes the figurative signification stage; therefore، it is not true that in the dictions of all the learned scholars the comparative signification is regarded as verbal signification; rather، the origin of comparative signification in its various stages is different. Signification’s following of volition is related to declarative stage، which is resulted from the speaker’s purpose and volition and has nothing to do with the figurative stage; because in transferring the mind to the meaning of the signified، the convention and knowledge of the convention would suffice and certainty and non-certainty about the intention does not have any impact on it.

With the adoption of the Universal Declaration of Human Rights in 1948، human dignity as an important foundation for explication and formulation of human rights seriously found its way into the legal texts، to the extent that today many countries، including the Islamic Republic of Iran، formulate their constitutions according to human dignity. The present article seeks to examine the status of human dignity in the process of inferring rulings. The writer maintains that “preservation of human dignity” can appropriately be placed in the focal point of a legal rule as one of the general legal law (sharī‘at) purposes and be a document of and provider for some of the legal judgments (fatwās)، especially in the international relationsscene.

In Sunnī and Imāmī jurisprudence، some have said that the legal base in devising rulings is founded on “differentiation between similarities (mutimāthilāt)” and “reconciliation between differences (mutafarriqāt)” and in other words، the legal basis is on the notion of considering the ruling of the similar subjects as different and the ruling of the different subjects as similar. Most of those maintaining the existence of this basis in legal law have stated it as a reason for the invalidity of analogy (qiyās); and some have resorted to it for solving the problems of the rulings that are apparently inconsistent with intellect. The only reason of those maintaining this view is the examples in which the ruling for the similar subjects is apparently considered as different and the ruling of the different subjects as similar. Some jurists have rejected the existence of such basis in legal law and have mentioned some responses to the claims of its proponents، most of which indicate the legal laws as having a cause (mu‘allal) and that it is not possible to consider the ruling of the similar subjects as different. In this writing، we examine the origin of this rule and the arguments of its believers and deniers. What is obtained as a conclusion from the examination of this claim and its responses is that whether the basis is on judicial doctrine، which regards the rulings as centered around the interests (masāliḥ) and abuses (mafāsid)، or based on the Ash‘rite doctrine that does not regard the rulings subject to specific reasons، such a proposition is not resolute.

Some rulings of the “previous religious laws”، both in the Qur’ān and sunna، are related without mentioning the reason for their proof or disproof for the Muslims. Therefore، the scholars of the religious schools are divided as to whether or not this type of rulings are regarded as sharī‘a (religious law) for the Muslim Umma. According to one view، the Ḥanafites، the Mālikits، Muḥammad b. Idrīs Shāfi‘ī، and according to another، a group of the Shāfi’ites and Aḥmad b. Ḥanbal and following him، the majority of the Ḥanbalites believe in the validity of these rulings. The āyas and traditions are regarded as the bases of the arguments of this group. In contrast، the Mu‘tazilites، the Shī‘as، the Ẓahirites، and a group of the Shāfi’ites maintain the non-validity of these rulings; whereas، Ibn Ḥazm، al-Ghazali، al-Āmadī have adopted this view. To prove their theory، this group have also resorted to the āyas، traditions، consensus، non-prevalence of istiṣḥāb (presumption of continuity) of the rulings of previous religious laws، and the intellectual arguments. Nevertheless، since there is no specific practical outcome resulted from the disagreement in question، the disagreement on the validity of the rulings of the previous religious laws seems to be mainly a verbal one. That is because the opponents of validity maintain the continuity of the rulings because of the incorporation of the rulings of the previous religious laws into the Qur’ān and sunna، and act accordingly in respect to the fact that they regard these rulings similar to the previous religious laws and not because the religious laws are previously devised، as the proponents practically abide by the above-mentioned rulings، albeit to the validity of the rulings of the previous religious laws for the Muslim Umma.

The lunar month begins with sighting of the new moon. The renowned majority of the jurists regard the sighting of the moon in the horizon of the observer، and some others in any horizon، as a sign of the beginning of the month. One of the common reasons of both viewpoints is the traditions، in which absolute words such as sighting (ru’yat)، citizens of a city (ahl miṣr)، and another country (balad ākhar) are mentioned. The proponents of difference of horizon have considered the absolutes as referring (munṣarif) the cities of the same horizon، and the advocates of sameness of horizon have not accepted reference (inṣriāf). In this research، after relating and commenting on the traditions، the legal، theological، and exegetical evidences on the non-reference are mentioned and consequently the theory of the sameness of horizon is defended.

In many jurisprudential discourses، Islam is said to be a condition for the validity or permissibility of action. One of the most important of these instances، which is claimed to be unanimously agreed upon، is the executorship of testament (wiṣāyat). In this article، first، the evidences of the renowned majority of jurists as per the invalidity of making a testament (waṣiyyat) to the unbeliever (kāfir) in case those concerning whom the testament is made (mūṣā ‘alayh) are Muslims، is examined; and finally، the possibility of the validity of such a testament in certain instances is proven by a jurisprudential approach.

Examining the validity of the condition of the accountability (ḍamān) of the trustee (amīn)، including the tenant، is of great importance with respect to the prevalence of such a condition in secular law، and since the evidences of the validity of such a condition is scarcely dealt with، this article examines the evidences of the validity of this condition in two discourses. The first discourse is to examine the most important reasons for the invalidity of such condition، because of which this condition is most often viewed as invalid and the most important of which can be mentioned to be opposition to the expedience of the contract itself، opposition to the legal law، and the discontentment of the proprietor; and in the second discourse، the evidences for the validity of this condition is expressed and examined، the most important of which can be mentioned to be the rule of conditions، evidences of the necessity for fulfilling the condition، the principle of validity، the principle of the sovereignty of will، and stating the supporting documents as well as the relevant traditions.