فصلنامه فقه و اصول
پیاپی 97 (تابستان 1393)

One of the most important discourses on basics of jurisprudence methodology (‘ilm al-uṣūl) is the one concerning the isolated tradition. The most important reason for proving the validity of the isolated tradition according to the widely known viewpoint of the authorities on this issue is the attitude of the intellectual. This article is intended to criticize this reason and in the end to prove its insufficiency for the claim in question.

The jurists have since early times wondered whether illnesses can be treated with forbidden or ḥarām things and thereby improve the illness and restore the patients to health; or whether it is totally forbidden and impermissible to step into this arena even if motivated by treatment of illness. Of course، using the unlawful in treating illnesses where exploitations other than eating and drinking is in mind is not so much problematic and sensitive; however، what is more open to disputation is eating and drinking unlawful things with the intention of treatment. In this respect، although most of the jurists، especially the earlier ones، have viewed treatment with the unlawful، either absolutely or with certain muḥarramāt as impermissible and have not withstood it، the viewpoint addressed in this article is the permissibility of all kinds of treatment with all muḥarramāt irrespective of their differences. Thus، in order to explain this viewpoint and reinforce it، five reasons have been set forth and by providing the conditions and answering to the contradictory probabilities and criticizing the opponents’ viewpoints، it is tried to pave the ground to some extent for the acceptability of this theory.

If in multiple offences deserving legal punishment (ḥadd) the perpetrated offences are similar، the punishments interfere and the person is sentenced to one legal punishment. This judgment is disputable from two perspectives. Firstly، it is against the principle of non-interference of causes and effects. Secondly، it is against the principle of justice and causes disturbance in public security and order. Relying on various reasons، such as traditions، principle of reasonable doubt (qā‘idat al-dar‘)، judgment pertaining to nature، principle of exemption، application of legal evidences، concept of the evidences of repetition of offence، consensus، sīra، and so forth، the jurists have undertaken to resolve the contradiction of this judgment with the principle of non-interference of causes. Although some objections have been raised against some of these evidences، it can be said that judging the interference of punishments have been taken for granted by all the jurists. Existence of discretionary punishments with their exclusive nature (according to the judge’s opinion) in Islamic penal system would resolve the second problem، too. As such، if we execute legal punishment (ḥadd) along with discretionary punishment (ta‘zīr)، it will result in much better administration of justice and prevention of disturbance in public order.

The Prophetic action and behavior as a part of tradition is regarded as a kind of evidence and legal plea. Explanation of the concept and nature of the Prophet’s (S. A. W.) action and the two sects’ analysis of this rational reasoning in the process of inference of legal ruling has an important status in Islamic jurisprudence. Given the existing views، there are two general approaches to the Prophet’s (S. A. W.) actions; the first approach that all his holiness’ actions except special actions were legislative، according to which all actions verify as legal rulings; and the second approach، which، in respect to the existence of two legislative and non-legislative ranks for his holiness، in addition to the special actions، his natural and worldly actions، which are among the non-legislative actions، cannot be used as a basis for inference and extraction of legal rulings. The main disagreement among those maintaining the above approaches results from the difference in dividing the Prophetic actions and the genuineness of this division. The expressive actions، however، are the most important actions carried out by the Prophet (S. A. W.)، from which rulings are explicitly extractable، as they have been highly utilized in Islamic jurisprudence، particularly، in “acts of devotion” section. Primary actions are also among the latter part of the Prophet’s (S. A. W.) acts، which are divided into two groups of clear attributes and ambiguous attributes. All the scholars of the two sects in the first group believe in the equality of the umma and the Prophet (S. A. W.) in rulings; but there are many differences of opinion in the second group.

Financial and economic relationships are undeniable realities and impressive factors in familial relations، and there are reciprocal interactions between these two. The existence of this relationship has caused the familial relations to be realized as effective in the penal destiny of aggressions against properties in the penal jurisprudence and statutes. In Islamic jurisprudence، familial immunity has been taken into consideration only in such cases as “lapse of legal punishment” in “theft” and as confined to “father-child” relations. Nevertheless، certain issues have to be examined as follows: 1. Determining “the domain of familial relation” effective in offences against properties and ownership; 2. Explanation of “the realm of offences against properties and ownership” effected by familial relations; 3. Description of “type of efficacy” of familial relations in offences against properties and ownership”Based on the effect of familial relations in theft leading to legal punishment (ḥadd)، which is brought up in detail in jurisprudence – with a comparative look at the Sunni jurisprudence –، this writing explores into the above three issues and raises the fundamental question as to whether the existing judiciary approach in this respect is a desirable and sound one or not. The article’s hypothesis is the possibility of qualitative and quantitative development of familial immunity in offences against properties and ownership and its by-products; verification of non-limitedness of the domain of familial relation effective in offences against properties to father، paternal ancestors or mother; and non-limitedness of the domain of offences effected by familial relations to theft. The writer’s suggestion is recognition of familial immunity as one of the “legal excuses for non-punishment” in the context of article 227 bis of penal code، and the presented working procedure for this suggestion is the restoration of section 5 of clause 2 of article 8 of penal code approved in 1290 sh/1911 and the issuance of order to suspend prosecution – in case of existing familial relation between the criminal and the victim of crime.

Sīra is of a sublime status in Shī‘a jurisprudence and has been used as the most important reason in endorsed rulings of Islam. The Shī‘a jurists have used it as one of their evidences for inference of rulings to the extent that they have regarded it as superior to consensus (ijmā‘) and viewed the authority of sīra as a cause for endorsement or non-hindrance by the Infallibles (A. S.). In the course of the history of inference، a new term has been developed، which in line with sīra was employed as a proof for inference of rulings and the jurists called it fixed way of religionists or irtikāz al-mutisharri‘a. It is the proof and establishment of a concept in the religionists’ mind that cannot be easily given up and sometimes it results in external conduct and behavior and yet at other times it remains to be subjective. That the jurists have relied on irtikāz in some rulings indicates that in their view irtikāz is authoritative. Conceptual irtikāz is separate from sīra and it behooves to be dealt with under another heading than sīra، even though، like sīra، it is regarded as rational (lubbī) circumstantial evidence and in many instances it is the original resource for the evidences. In this research، after giving a definition of sīra and irtikāz al-mutisharri‘a and proving the conditions for their authority، it is tried to compare these two terms and to clarify their similarities and differences، and then to point out the instances that are regarded as origins for irtikāz.

Following developments in medical sciences and humankind’s acquiring new technologies، which provided using body organs and their products for the treatment of some illnesses، some legal questions were little by little set forth in this respect، including buying and selling body organs. Raising this question and answering it is the important task that the present writing is intended to handle in a fundamental-theoretical research، with a descriptive-analytical method in the expanse of Shī‘a jurisprudence and with the use of inference sources. Finally، after explaining the subject in question، observing the existing viewpoints، and examining the evidences of each viewpoint، it is concluded that buying and selling body organs has obligatory and conventional legitimacy and there are no sufficient evidences for the unlawfulness، invalidity، falsehood of this category of transactions.