فصلنامه حقوق اسلامی
سال سیزدهم شماره 2 (پیاپی 49، تابستان 1395)

That the conventionally preferred meaning of “the verses of rules” and some verses which introduce some general rules can be used or not is one of the issues which should be discussed in Principles of Jurisprudence. Those who say that they cannot be used are not of the same opinion. Some of them think that some verses are only mentions made to some details which shall be introduced later and there is no use meant; and¡ some other verses are mentions made to something which have been explained earlier in other statements without any use in this regard. Those who accept making uses of the meaning are of the opinion that it is certain and proved. Some of them think that it would be proved by referring to the Infallible’s sirah and some others are of the opinion that it would be proved by referring to the words or to the situation and they make uses of such meanings in their Fatwas. An analysis shows that possibility or impossibility of making uses in the Quranic verses and some hadiths is a conventional¡ and not rational¡ issue. To decide that whether the Quranic verses and hadiths may be applied or not¡ the conditions of the Islamic legislator with all its properties in legislation and explication of the religious law should be weighed against convention and the legislator should be invited to judge. The present article discusses this point.

In the Islamic Penal Code¡ the legislator has explicitly said that religious proofs have relevance. Because of this¡ a comprehensible study is necessary. In the present article¡ while referring to the opinions of Muslim Usulis¡ the authors introduce a consistent version of the rule of “relevance of proof”.
Then¡ they will discuss developments occurred in the legislator’s approach to the relevance of proofs. In what follows¡ the will discuss the negative and positive effects of relevance of religious proofs and show the relation between it in the one hand and the judge’s knowledge and the rule of dar’a on the other. In addition¡ using Usuli and epistemological teachings¡ they will provide an argument for relevance of proofs and make use of this argument as a powerful means to reduce the cases of wrong conviction. Finally¡ they will conclude that¡ in this old rule¡ such a rationality can be found which is useful in the present day as well.

Islam has considered duties for husband to train his wife and offspring. Thus¡ husband should try to provide a ground for his wife in which she may morally transcend; also he is bound to forbid her from committing sins. One of the important issues in this field is the limits of husband’s authority in forbidding his wife from evil. Is he entitled to forcefully forbid his wife from doing evil; or is he entitled to only forbid her verbally? Since the offence committed by wife may be either of public nature or an offence related to shrew-ness of wife¡ husband’s authority in forbidding her from committing offences will be discussed in two parts.

In the Civil Code¡ evidence have been considered as proofs for claims; evidence have been classified under two titles: “legal circumstantial evidence” and “circumstantial evidence left to the view of the judge”. In spite of their simple appearance¡ there are many factors involved in forming them and the effects of these factors on legal circumstantial evidence and circumstantial evidence left to the view of the judge are¡ to a great extent¡ different. There are various discussions dispersed in legal books under nature¡ foundation¡ and origin of evidence. The present article tries to organize these discussion under the title “how evidence are formed to prove claims” so that it may be found that how evidence (whether legal circumstantial evidence or circumstantial evidence left to the view of the judge) appear to prove claims. Prevalence¡ convention¡ and the permit issued by the legislator are factors playing role in the origination of evidence to prove claims. Factors forming legal circumstantial evidence are as follows: prevalence and the permit issued by the legislator; while the elements of circumstantial evidence left to the view of the judge are context or the situation of a particular claim and inference made by the judge. When each of the two types of evidence is applied¡ two inductive and deductive methods are combined.

All Muslims have been always of the opinion that false accusation is haram. The prophetic hadith concerning encountering heretics and the phrase “accuse them” in it has caused some discussions to find whether false accusation is absolutely haram or about this group it is not haram. Shahid Thani is the first jurisprudent who has stated that false accusation is absolutely haram even while encountering heretics. After him¡ those who have commented on al-Kafi have said that the Arabic term “Beahtuhom” means to make heretics wonder by scientific debates; and the other jurisprudents either do not have a different opinion or have emphasized their agreement with Shahid Thani. In the contemporary time¡ however¡ relying on the above hadith and the interest of Islamic nation in eliminating the heretics’ intrigue¡ Shaykh Ansari introduced the possibility of permission of falsely accusing them which¡ after him¡ some contemporary jurisprudents accepted it. Many intra-textual indications such as the meaning of “Beahtuhom”¡ various versions and a result of it¡ conceptual suspicsion as well as extra-textual indications such as absolute prohibition of false accusation in the verses and hadiths as well as necessity of scientific opposition to heretics and agreement of the thinkers in other field of the Islamic sciences on the meaning of “making heretics wonder” show that falsely accusing heretics is not permitted. On the other hand¡ as a result of falsely accusing heretics¡ people will no more confide in the believers’ sayings¡ false accusation and immorality will become prevalent in the society and heretics will be agitated to damage beliefs and personalities of the believers more than ever which not only are not among the interests of the Islamic nation but also damage their interests.

All Muslims have been always of the opinion that false accusation is haram. The prophetic hadith concerning encountering heretics and the phrase “accuse them” in it has caused some discussions to find whether false accusation is absolutely haram or about this group it is not haram. Shahid Thani is the first jurisprudent who has stated that false accusation is absolutely haram even while encountering heretics. After him¡ those who have commented on al-Kafi have said that the Arabic term “Beahtuhom” means to make heretics wonder by scientific debates; and the other jurisprudents either do not have a different opinion or have emphasized their agreement with Shahid Thani. In the contemporary time¡ however¡ relying on the above hadith and the interest of Islamic nation in eliminating the heretics’ intrigue¡ Shaykh Ansari introduced the possibility of permission of falsely accusing them which¡ after him¡ some contemporary jurisprudents accepted it. Many intra-textual indications such as the meaning of “Beahtuhom”¡ various versions and a result of it¡ conceptual suspicsion as well as extra-textual indications such as absolute prohibition of false accusation in the verses and hadiths as well as necessity of scientific opposition to heretics and agreement of the thinkers in other field of the Islamic sciences on the meaning of “making heretics wonder” show that falsely accusing heretics is not permitted.
On the other hand¡ as a result of falsely accusing heretics¡ people will no more confide in the believers’ sayings¡ false accusation and immorality will become prevalent in the society and heretics will be agitated to damage beliefs and personalities of the believers more than ever which not only are not among the interests of the Islamic nation but also damage their interests.