Authentication of Presumption of Continuity (Istiṣḥāb) in two Incidental Events with an Unknown Date; and its Effects on Criticizing Article 873 of Iran’s Civil Code
mohammad mahdi
kariminiya
Assistant Professor, Qom Karim University of Quranic Sciences and Education, Qom, Iran.
author
Sayyid Asadullah
Mousavi Nejad
Student of the fourth level of the Jurisprudence Higher Education Complex, Al-Mustafa University of Qom, Qom, Iran.
author
text
article
2022
per
The involvement or non-involvement of istiṣḥāb (presumption of continuity) in two incidents whose priority and posteriority are not clear, has many legal and jurisprudential effects in most chapters of jurisprudence and law, and jurisprudence and law scholars have expressed different views on this issue. In the following article, the opinions of jurisprudence scholars and the views of jurists have been examined by using library sources and descriptive-analytical method. The results of the research show that the jurists consider istiṣḥāb to be valid in this issue, but due to the conflict, they do not consider any effect for it and refer to the principles of taṭhīr (purification), casting of lots, discretion, etc. Of course, some have totally considered istiṣḥāb to be invalid and brought up the authenticity of taṭhīr. By differing on the proceeding of istiṣḥāb, the jurists have not differentiated the quality and type of. Jurists have accepted the opinion of jurists regarding the assumption of ignorance at the time of the first incident, but they have different opinions regarding the assumption of ignorance at the time of the second incident. In this article, the defects of Article 873 of the Civil Code, which are in clear opposition to jurisprudence, have been examined. As one of the results of this research, and considering that Iran’s Civil Code is derived from Imāmī jurisprudence, it seems that the content of Iran’s Civil Code should undergo a revision on the issue of inheritance. Many differences between “Iran’s Civil Code” and “Imāmī jurisprudence” have led to arising differences in issues such as inheritance
Comparative Studies on the Schools of
Jurisprudence and its Principles
University of Kurdistan
4407-2676
5
v.
1
no.
2022
23
1
https://mfu.uok.ac.ir/article_62406_a6cb9ada54873c92b72e375dd8af9484.pdf
dx.doi.org/doi.org/10.34785/j023.2022.002
Reappraisal of the Reasons for the Validity of the Mu‘āṭāt Sale from Imam Khomeini’s Perspective
mohammad
kakavand
Assistant Professor, Department of Islamic Studies, Malayer University, Malayer, Iran.
author
sajad
torkashvand
PhD student, Department of Law, Islamic Azad University, Mahalat branch, Mahalat, Iran.
author
mahdi
torkashvand
PhD student, Department of Law, Islamic Azad University, Mahalat branch, Mahalat, Iran.
author
text
article
2022
per
One of the controversial issues of sale in Imāmī jurisprudence is bay‘-i mu‘āṭāt (give-and-take sale). Therefore, it is necessary to examine the reasons behind the authenticity of this kind of sale. The present study is a reappraisal of these reasons from the point of view of Imam Khomeini in an explanatory, analytical, and descriptive way. Some scholars, such as ‘Allāma Ḥillī and Muḥaqqiq Ḥillī, consider bay‘-i mu‘āṭāt as unstable and have pointed out reasons such as hadiths, text, and consensus to prove their claim. However, other scholars such as Imam Khomeini believe in the authenticity of mu‘āṭāt and consider it necessary, and provides reasons for proving his claim and refuted the viewpoint of those who consider bay‘-i mu‘āṭāt as unnecessary and invalid. He also believes that all the options which exist in other sales are valid in bay‘-i mu‘āṭāt as well.
Comparative Studies on the Schools of
Jurisprudence and its Principles
University of Kurdistan
4407-2676
5
v.
1
no.
2022
45
24
https://mfu.uok.ac.ir/article_62187_2480b71a6e563f8681a466d940acecf5.pdf
dx.doi.org/doi.org/10.34785/j023.2022.003
The Possibility of Criticizing Allāma Shūshtarī's Criteria of Jurisprudential Traditions being Fabricated
ali
salahshoor
Assistant Professor, Department of Theology and Islamic Studies, Department of Quran and Hadith, University of Kurdistan, Sanandaj, Iran
author
text
article
2022
per
Hadith as the second source of evidence for inferring shari’a rulings has always been of interest to jurists and given to the need to prove the authenticity of hadiths and its high importance in jurisprudential discourses, Islamic scholars and jurists have published books throughout history to confront the fabrication and distortion of hadiths. One of the first and most important books in this regard is the book Al-Akhbār al-Dakhīla by Mouhammad Taqī Shūshtarī, a contemporary Iranian scholar. The purpose of this study is to investigate Shūshtarī’s criteria for considering hadiths as fabricated.This research, which has been done with an analytical-descriptive method, while identifying the most important criteria of the author and providing examples of hadiths from the book, shows that the author has studied the hadiths from different angles. He has criticized textual issues such as incompatibility with the Qur’an, definite tradition, reason, history, science, famous jurisprudential rulings and theological beliefs, and has also criticized the sanad (chain of transmission) of hadiths such as the delving into the transmitter’s class, the weakness of the sanad and other biographical instances. In this process, he has obsessively and carefully tried to identify and introduce fabricated hadiths. However, such instances as the lack of accurate categorization (tabwīb), the lack of unity of procedure, considering the author’s viewpoint as definite in cases where only one possibility can be deduced from his words are deficiencies of the book.
Comparative Studies on the Schools of
Jurisprudence and its Principles
University of Kurdistan
4407-2676
5
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1
no.
2022
67
46
https://mfu.uok.ac.ir/article_62402_6b70d8635326eeca513f4e92cc4c69af.pdf
dx.doi.org/doi.org/10.34785/j023.2022.004
Legitimacy of Income Generation Using Advertising Websites
hamed
mirzakhan
The fourth level of the seminary and researcher of the Jurisprudence Center of Imams Athar (AS) Qom, Qom, Iran
author
text
article
2022
per
The present research is about the legitimacy of income generation using advertising websites and its typology. It is to say that today certain new transactions and contracts have emerged whose rulings are not different from those of the transactions that were common during the time of the Legislator or transactions that became customary a little after the time of the Legislator or from the transactions that are done every day in the markets of merchandise and services. The key question is what the ruling on acquiring money in this way is. Therefore, first of all the typology and then explaining the ruling for earning money through advertising websites is the main issue of this research, which is done by analytical-descriptive and discretionary (ijtahādī) procedure. By re-examining the jurisprudential arguments, jurisprudential evidences and rules explaining the evidences of acquiring money through Islamic contracts on the issue and criticizing and discretionary analysis of the evidences, it is possible to determine the acquisition of money through advertising websites. After critically reviewing the evidences of the permissibility of acquisition through ju‘āla (contract whose subject matter is a work or task to be done), bay‘ (sale), and ijāra (lease) contracts, eventually this type of acquisition of wealth is proved through the ju‘āla contract is proved. In addition, according to the jurisprudential rules of akl-i māl bi’l bāṭil (consuming property wrongfully) and ḍarar wa gharar (loss and risk-taking), the acquisition of wealth through non-conventional means and unreal visitation (through usury) is legally forbidden (ḥarām).
Comparative Studies on the Schools of
Jurisprudence and its Principles
University of Kurdistan
4407-2676
5
v.
1
no.
2022
94
68
https://mfu.uok.ac.ir/article_62405_2a083db9035cc9c69ba441ae7f5289e1.pdf
dx.doi.org/doi.org/10.34785/j023.2022.005
The Efficacy of Jurisprudential Principles on the Evolution of Legal-Legislative Policies
Rohola
Maleki
PhD Student in Public Law, Faculty of Law, Theology and Political Science, Science and Research Branch, Islamic Azad University of Tehran, Iran (r_malekie_h@yahoo.com). Faculty member of Islamic Azad University, Andimeshk Branch
author
Bijan
Abasi
Associate Professor, Faculty of Law and Political Science, University of Tehran, Tehran-Iran, Correspondence Officer
author
seead mohammad
Hashemi
Professor, Faculty of Law, Shahid Beheshti University, Tehran, Iran
author
Saber
Niyavarani
Assistant Professor, Department of Public Law, Faculty of Law, Theology and Political Science, Science and Research Branch, Islamic Azad University, Tehran-Iran
author
text
article
2022
per
Legislative policies specify the orientation and policy of the legislator in devising laws and regulations. These policies, which are formulated in the framework of the general policies of the system, should be based on jurisprudential principles, due to the shar‘ī nature of the system of the Islamic Republic of Iran according to the article 4 of the constitution. The dynamism of Shī‘a jurisprudence and its attention to various social contingencies, including cultural, political and economic, is one of the strengths of Shī‘a jurisprudence, which distinguish it from other religious systems. Since the political system of any society is considered to underlie the legal system of that society, paying attention to the patterns of evolution in political principles and macro theories can provide the possibility for changes in legal and judicial strategies.The present research was written with the aim of explaining the theoretical infrastructure in Shī‘a jurisprudence in order to create strategic changes in legislative approaches. Given the fundamental role of jurisprudential discourse in the formation of various socio-legal policies, emphasis on the dynamism of jurisprudence and reliance on it in infrastructural issues and macro-government discourses, will pave the way for revising many policy-makings and inflexible approaches in the field of legislation.In order to appraise the feasibility of strategic change in legislative policies, this research, with a descriptive-analytical approach, tries to answer the question as to “What changes – and with what contexts and approaches – have taken place in the field of legitimacy of governance in Shī‘a jurisprudence?” In this article, the developments made in the strategic concepts of the legal and political system are examined according to various aspects, including the social and political characteristics that govern the present age and society, and the opinions of scholars and thinkers are brought up and analyzed. Paying attention to the deep transformation of the opinions of Shī‘a scholars and thinkers about government and politics after constitutionalism can be a basis for strategic transformation in legislative policies, especially new legislation in such areas as banking and dealing with administrative corruption.
Comparative Studies on the Schools of
Jurisprudence and its Principles
University of Kurdistan
4407-2676
5
v.
1
no.
2022
123
95
https://mfu.uok.ac.ir/article_62403_2c3c3b84c386599eb6799d33423bf265.pdf
dx.doi.org/doi.org/10.34785/j023.2022.006
Delving into the Fundamentals of the Legitimacy of in-Absentia Funeral Prayer in the Jurisprudence of Islamic Schools of Thought
morteza
rahimi
Associate Professor, Department of Qur'anic Sciences and Jurisprudence, Faculty of Theology, Shiraz University, Shiraz, Iran
author
text
article
2022
per
Islamic schools of thought have contradicting opinions about the in-absentia funeral prayer, which is due to several reasons resulting from various factors such as the Holy Prophet’s in-absentia funeral prayer for Najāshī. In the present study, which is conducted by relying on the library resources and using descriptive analytic methodology, we attempt to analyze the jurisprudential principles of in-absentia funeral prayer for the deceased. The findings of the research show that different schools of thoughts have various understandings for the instances of in-absentia funeral prayer. However, all of them allow this prayer as per the validity of the hadith regarding the Prophet’s in-absentia funeral prayer for Najāshī. Some of the jurists believe that such kind of prayer is permissible only for the deceased with outstanding characteristics. Others believe in wider range for the in-absentia deceased and consider it to include the missing and the drowned bodies. Besides, there are different views about the in-absentia funeral prayer in large cities (bilād-i kabīra). As the Shi’a jurists and some Sunni school of thoughts have clearly declared, in-absentia funeral prayer is not permissible because the term ṣalāt (prayer) is interpretable concerning the Prophet’s performing in-absentia prayer for Najāshī. Meanwhile, there is also the possibility that the dead body of Najāshī could have been transferred to the presence of the Prophet who then performed funeral prayer on his dead body.
Comparative Studies on the Schools of
Jurisprudence and its Principles
University of Kurdistan
4407-2676
5
v.
1
no.
2022
156
124
https://mfu.uok.ac.ir/article_62408_a9bb53d9a022bd2a1d547893c2c956c4.pdf
dx.doi.org/doi.org/10.34785/j023.2022.007
The Role of “Willfulness” in Creating Desperate Necessity (Iḍṭirār) and its Jurisprudential and Legal Consequences
mohammad reza
hamidi
Assistant Professor of Department of Jurisprudence and Principles of Islamic Law, Faculty of Theology & Islamic Studies, Shahid Chamran University of Ahvaz, Ahvaz, Iran
author
text
article
2022
per
In jurisprudence and criminal law, desperate necessity (iḍṭirār) is considered among the justified causes of a crime, according to which, the desperate person will not have any criminal liabilities for their actions. However, in cases where the “willfulness” (ta‘ammud) element can be considered involved in the emergence of the state of iḍṭirār, the exclusion of the criminal liability will not take place. The determination of the semantic range of iḍṭirār is a controversial issue among the criminal authorities. In the Holy Qur’an, this issue is touched upon in the five verses relating to iḍṭirār and interpreters and jurists have tried to resolve the semantic uncertainty of the words in these verses considering the relevant principles. The jurisprudential discourses in this context are strongly affected by the above-mentioned verses and they are in a way jurisprudential interpretation of verses of iḍṭirār. In this writing, using the analytical-descriptive method, while explaining the principles of the opinions jurists and interpreters, a solution is presented to resolve the ambiguity mentioned above. Hence, the conditions of iḍṭirār verses have semantics overlapping and the common value and agreed certitude of all of them should be considered as general condition for the verdict of dissolution of iḍṭirār. Therefore, only creating iḍṭirār with the intention of perpetrating an illicit action or by knowing its inevitability to commit it can be considered willfulness in creating iḍṭirār, and in these situations the criminal liability will remain true.
Comparative Studies on the Schools of
Jurisprudence and its Principles
University of Kurdistan
4407-2676
5
v.
1
no.
2022
185
157
https://mfu.uok.ac.ir/article_62407_f6ead78053a3fe22a1ea1da16c61cb5f.pdf
dx.doi.org/doi.org/10.34785/j023.2022.008
A Critical Analysis of the Renowned Theory of Imamiyyah Regarding the Conditioning of Wulūgh (Dogs Lapping up Water) on the Legal Obligation to Purify (Taṭhīr) Dishes Contaminated with Dog’s Saliva
mohammad
masoudy
The level of the four fields of theology, Fiqh and principles and master's degree in Shia studies, University of Religions and Religions, Qom, Iran.
author
text
article
2022
per
According to the renowned view of the Imāmī jurists, in order to purify the dishes that have become impure through direct contact with a dog’s mouth, it is necessary to rub them with soil (ta‘fīr); the only evidence to prove this matter is hadiths, and no valid evidence can be found for it in the verses of the Holy Qur’an or rational arguments or even consensus. In hadiths related concerning the ruling of ta‘fīr, three phrases wulūgh al-kalb (dog’s lapping up water), shurb al-kalb (dog’s drinking water), faḍl al-kalb (dog’s remainder) are clearly mentioned. Besides these indisputable phrases, the disputable phrase lat‘ al-kalb (dog’s licking) has also been considered by jurists. In the present article, it will be clarified that each of the above-mentioned four phrases has a specific meaning and the ruling of ta‘fīr is not applicable to all those cases. Also, the renowned view of the Imāmī jurists regarding the relevance of the term wulūgh for the ruling of ta‘fīr will be critically reviewed. According to the performed investigations, the phrase wulūgh al-kalb, despite being mentioned in some narrations, does not have the required credibility to be relied on. In this research, by comparing and examining the evidence of these four phrases, it will be clarified that only the phrase faḍl al-kalb enjoys an acceptable scholarly support, and the term lat‘, which is not one of the subjects included in the ruling of ta‘fīr, will be included in the ruling ta‘fīr only if it leads to the realization of clear instance of faḍl al-kalb.
Comparative Studies on the Schools of
Jurisprudence and its Principles
University of Kurdistan
4407-2676
5
v.
1
no.
2022
210
186
https://mfu.uok.ac.ir/article_62404_e3529d5bed600a0313a850f6e4f6a33c.pdf
dx.doi.org/doi.org/10.34785/j023.2022.009
The Theory of Essentiality of the Relationship between Words and Meanings and its Impact on Jurisprudential Proposition
mohammad
daneshnahad
Assistant Professor, Department of Theology, Faculty of Humanities, Yasouj University, Yasouj, Iran
author
mohammadHASAN
VAKILI
Graduated from the 4th level of theology, majoring in theology, Institute of Strategic Studies of Islamic Sciences and Education, Mashhad District, Mashhad, Iran
author
text
article
2022
per
The relationship between words and meanings is one of the topics of linguistics, and discovering the reality of such a relationship can lead to very important results in jurisprudence. The uṣūlīs (scholars of principles of jurisprudence) have dealt with this issue in the section on words discourses. There are three categories to be considered according to the validity of the relationship between words and meanings: devising, commitment and conjunction. Each one of these theories has their advantages and disadvantages. The findings of this research, which was carried out with a descriptive-analytical method and with reference to library sources, show that the relationship between words and meanings after being devised by the deviser is an inherent matter. The proof of the correctness of this theory is prompting of real favorable and unfavorable effects on words, without the need for the deviser to be aware of the inherent relationship between the words and the meanings.
Comparative Studies on the Schools of
Jurisprudence and its Principles
University of Kurdistan
4407-2676
5
v.
1
no.
2022
236
211
https://mfu.uok.ac.ir/article_62409_d74eff4ac2e49db1e8a89e9dd45bccda.pdf
dx.doi.org/doi.org/10.34785/j023.2022.010
Conceptual Explanation of the Hadith, Akrimū Awlādī, al-Ṣālihūna Lillāh wa al-Ṭālihūna Lī and its Jurisprudential Outcomes
zeynab
mohammadzade
Assistant Professor, Department of Jurisprudence and Fundamentals of Imam Khomeini's Law and Thought, Imam Khomeini Research Institute and the Islamic Revolution of Tehran, Tehran, Iran.
author
AliReza
Kadkhodaei
PhD student, Irfan Department, Imam Khomeini and Islamic Revolution Institute of Tehran, Tehran, Iran.
author
text
article
2022
per
Throughout the history of Islam, sīyādat (being a Sayyid or a descendent of Prophet Muhammad – S.A.W.) has always played an important role in the political and social life of individuals. Descendants of the Prophet (Sādāt), have enjoyed special respect in Islamic societies. In religious doctrines respect for Sādāt has highly been recommended, which is certainly referring to the righteous and pious ones. However, according to the narration, “Akrimū Awlādī, al-Ṣālihūna Lillāh wa al-Ṭālihūna Lī” (Honor my children, those who are righteous belong to Allah and those who are unrighteous belong to me), some jurists have not made a difference between righteous and unrighteous Sādāt regarding the desirability (istiḥbāb) of honoring them. In contrast, a number of jurists have denied the validity of this narration due to its weak documentation and the contradiction of its content with the provisions of the evidences of commanding the good and forbidding the evil, as well as the application of the evidences for legal punishments and penalties (ḥudūd wa ta‘zīrāt). This present article, which deals with the conceptual explanation of the above-mentioned narration and its jurisprudential outcomes with a descriptive-analytical approach, shows that its weak documentation is compensated by the practice of jurists and its content does not conflict with other religious doctrines
Comparative Studies on the Schools of
Jurisprudence and its Principles
University of Kurdistan
4407-2676
5
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1
no.
2022
261
237
https://mfu.uok.ac.ir/article_62426_4650de938ff6fe46a6ed5d311ddf4f4c.pdf
dx.doi.org/doi.org/10.34785/j023.2022.011
Efficacy of the Categories of Heirs in Fulfillment of ‘Awl (Increase or Decrease in Inheritance Share); A Comparative Study of the Jurisprudence of Islamic Sects
Muhammad
Abu Najmi
Assistant Professor, Higher Institute of Sunni Islamic Sciences Schools in South Iran, khonj Religious Complex, khonj , Iran
author
text
article
2022
per
Awl, i.e., reducing the inheritance share (sahm al-’irth) of heirs (wurrāth) and increasing the number of shares to provide the share for all heirs, is a jurisprudential solution for the time that the assets of the deceased (mutiwaffā) is not sufficient for all the shares of heirs and depriving the heirs is also not possible. Some jurists have rejected the ‘awl for its contradiction to jurists’ principles and considered diminishing (naqṣ) in the assets shares of a particular group of sharers as a solution. This research using description and analysis by referring to library sources analyzes the inheritance share of triple categories of brothers and sisters in the Holy Qur’an and concludes that if the stronger category gets priority over the weaker one and it becomes a base for giving shares to heirs, there is no need to refer to awl rule.
Comparative Studies on the Schools of
Jurisprudence and its Principles
University of Kurdistan
4407-2676
5
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1
no.
2022
278
262
https://mfu.uok.ac.ir/article_62427_ecf9d988ce7b915fcaeb110c5d1ec7dc.pdf
dx.doi.org/doi.org/10.34785/j023.2022.012
The Lack of Demarcation of Credit and Real Concepts and its Effect on Comprehending Jurisprudence and Legal Propositions
hamed
rostami najafabadi
Assistant Professor, Department of Jurisprudence and Imamiyyah Law, Tehran University of Islamic Religions, Tehran, Iran.
author
mahmood
pourbaferani
PhD, Fiqh and Private Law, Tehran Khwarazmi University, Tehran, Iran.
author
text
article
2022
per
Failure to separate real from credit concepts is a jurisprudential challenge that sometimes causes wrong perceptions and undesirable practical consequences in the field of transactions. Since the matter contrary to the nature of the contract cannot be forged and is not stipulated in the contract, the binding nature of the rules governing the real concepts in credit is taken for granted and the approved laws function as jurisprudential rulings. Therefore, it is necessary to recognize these concepts first; then the jurisprudential inferences based on current principles in real concepts to be analyzed and scholarly criticized. Considering the validity of most jurisprudential and legal concepts, some apparently certain propositions are vulnerable and their negation would lead to results that are more compatible with common sense. The current research, which was carried out with a descriptive-analytical method and reliance on library sources, shows that no credit concept has a real and self-evident relationship with a real concept or with another credit concept.
Comparative Studies on the Schools of
Jurisprudence and its Principles
University of Kurdistan
4407-2676
5
v.
1
no.
2022
300
279
https://mfu.uok.ac.ir/article_62428_0268390c98a4d6e8f235928aa507b290.pdf
dx.doi.org/doi.org/10.34785/j023.2022.001