فصلنامه فقه و اصول
پیاپی 96 (بهار 1393)

In the Islamic schools’ opinions، change of fatwa (legal ruling) is among the important issues that has been discussed about both in contemporary and earlier periods. All schools have accepted the permissibility for the muftī’s change of fatwa as a general rule. In those schools’ point of view، it is permissible for the muftī to withdraw his fatwa. Therefore، following answering the question as to what factors are effective in change of fatwa، the overall proposition of the writers of the present article is to study the Sunnī jurists’ perspective to obtain some elements from their statements implied in terms of induction and to express its jurisprudential examples. The writers have، in general، considered six factors involved in the Sunnī jurists’ change of fatwa، which include: 1. Change in convention (‘urf) and the exigencies of time، 2. Considerations of time، 3. Change in the states of the people of the time، 4. Reanalyzing the subject by the master jurist (mujtahid)، 5. The master jurist’s revision in the principles and reasons of the previous fatwa، and 6. The master jurist’s access to new reasons.

In analyzing the scholarly achievements، Muslim writers make extensive use of biography books. The information of people’s life and their geographical conditions، which are included in their specific intellectual inclinations، is usually extracted from these books، which can be used for quantitative analysis for presenting a portray of the overall figure of a society، in general، and its academic walks of life، in particular. Four centuries ago، in eleventh/seventeenth century، Muḥammad Amīn Astarābādī، brought up one of the scholarly achievements in a modern، and of course، extremist form. This idea greatly influenced the scholars of his time and afterwards and was considered a dominant Shī‘ī thinking for over a hundred years. Astarābādī is sometimes remembered as the founder and، at other times، as the regenerator of the traditionalists’ (akhbāriyūn) school. As to which of the above titles is appropriate for him، depends on tracing the history of traditionalism back to the early periods of Twelver Shī‘ism after the Occultation; or، it is considered as a new phenomenon. It is not important which of these titles (founder or regenerator) is true for Astarābādī، the important point is that the traditionalists’ way of thinking in the Safavid period challenged the procedure of jurisprudence and legal reasoning (ijtihād). After giving an overall picture of the core concepts of Astarābādī’s school of thought and the advances he made in the sources and principles of legal reasoning، the present article seeks to study the point that despite the efficacy of this school in the Safavid period and the comprehensive conflict of the traditionalists and legal theorists (uṣūlīs) for over a century (eleventh/seventeenth)، why has this issue been rarely spoken of in the biographies up to 150 years after the death of Muḥammad Amīn Astarābādī?

Information dissemination throughout the society is carried out by a phenomenon called news. This phenomenon is in relation to various social institutions as well as different aspects of people’s lives. In the present article، the writers believe that، firstly، the phenomenon of news، despite the operations carried out to disseminate and present it، has material value and that its economic value underlies the rulings and regulations related to properties in this field. Secondly، the phenomenon of news، beyond its material value، enjoys the feature of ownership، which is a specific credit relation between people and objects. Proving this feature of news would involve a great part of legal regulations in the field of news and dissemination of information. In this respect، identifying and introducing the owner of news will have an important status in paying attention to their rights and obligations entailed by ownership. Thirdly، the phenomenon of news، after confirmation of its material value and ownership، would be qualified to be the subject of exchange contracts، and accordingly، a new condition including economic relations and transactions about it would form.

In Islamic penal law، most of the crimes against national and social security are gathered under the title muḥāriba (waging war); whereas، in jurisprudence، there is disagreement about the nature and criteria of muḥāriba and the concept of arms in muḥāriba. However، by research and delving into evidences derived from jurisprudential texts، a true definition of this category can be achieved، according to which muḥāriba would be the intention to intimidate people by using whatever that frightens and panics them، causing disorder in society. According to this viewpoint، the title muḥāriba، is semantically expanded to include armed and unarmed، contrary to the fact that according to article 183 of Islamic Penal Law، the legislator has regarded muḥāriba as subject to be armed. Nevertheless، there are certain crimes among those against public security that according to the jurisprudential evidences، are true instances of the crime of muḥāriba and the basic components and elements of this group of crimes fully conform to the crime of muḥāriba. However، in crimes against public security، the legislator has considered only a limited number of these crimes as muḥāriba; in some he has not made any reference to the crime perpetrated as being muḥāriba، and in others has looked at this title with suspicion. Similarly، in some cases، he has set the anti-government activities and the intention to confront the ruling system as the criterion for judging as muḥāriba.

Fundamentals of legal rule is one of the major discourses of the philosophy of law، which has led to the formation of numerous intellectual schools in this field. The main query of the present research is that whether the two schools of “natural law” and “legal positivism” can interact with each other. Is the combination of “value” and “reality” possible in a legal system? What is the status of these factors in Iranian legal system? In other words، given the Islamic-value of our legal structure، has this system neglected the reality or are value and reality creating legal rules in a constructive interaction with each other? Answering these important questions requires studying the intellectual ideas different from those of all the Western thinkers. Finally، the present research concludes that in the West values still enjoy a major status، although it has tried to separate its legal principles from value principles. Besides، in the Iranian legal system، although an Islamic system and value-oriented، the values create legal rules in an effective interaction with realities.

In case multiple crimes are caused by a single strike، there are three different beliefs concerning the ruling on this issue. The renowned majority of jurists have deemed as necessary the payment of blood money (diya) by the criminal for all the crimes perpetrated. Another group، who has maintained the interference of crimes، are themselves divided into two groups. One group maintains interference and consequently deems as necessary the payment of only one diya in an absolute way and another does so with some conditions. The legislator، who had not previously stated a clear ruling regarding multiple crimes resulting from one strike، has tried to state the ruling on this issue in the new Islamic Penal Law. The legislator has acted very poorly in this respect، because he has not only rejected the generally accepted assertion but has also، for accepting the ruling on the interference of crimes، added the condition of no-intentionality of the criminal’s strike to the conditions already mentioned by the second group jurists. That is to say، the legislator has practically not accepted the view of any of the jurists in this regard. The present writing is a library/documentary research that has been organized by descriptive-analytic method and concluded by a legal-judicial study that if the second crime is the result and outcome of the main crime and one is major and the other minor، the minor will interfere in the major and contrary to the articles proposed by the legislator، there is no difference between the intentionality and non- ntentionality of the criminal’s primary strike.