فصلنامه فقه و اصول
پیاپی 108 (بهار 1396)

One of the issues that has been more or less discussed among jurists and has followed by some discourses has been the innate impurity of the unbelievers’ underage children.
The Sunni jurists believe in the cleanliness (ṭahārat) of human beings despite their type of tendencies and beliefs, which naturally includes the unbelievers’ children, too. In contrast, however, most of the Shī‘as believe that the unbelievers’ underage children follow their fathers and, like them, are considered as impure. In support to their viewpoints, these jurists have provided reasons that are all of them, as well as their evidences, critically reviewed and their feeble arguments are shown from different aspects and finally the theory of physical purity of the unbelievers’ children, whether in the field of the people of Scripture or the polytheists, is approved and some evidences have also been provided in this respect.

Right to qiṣāṣ belongs to the heirs of the deceased, that is to those who are regarded as the legal heir of the murdered and the principle is: “Whoever inherits the property of the deceased, inherits the right to qiṣāṣ, too.” Nevertheless, there is an exception to the above law, i.e., the husband and the wife do not inherit qiṣāṣ. Article 351 of Islamic penal code ratified in 1392 sh. denotes this issue.
The main reason that is mentioned for it is the jurists’ consensus. In this article, by examining this reason and other reasons brought up in this respect, we intend to prove that these reasons are not sufficient for deprivation of the right to qiṣāṣ and the exception of the couple from the above principle; rather, the couples must be maintained to enjoy the right to vindicate the right to qiṣāṣ, just as other inheritors do.

There are five views concerning the criterion for the anti-Shī‘a (nāṣibī) in the jurisprudential literature of the Imāmī jurists. These views include 1. Prioritizing non-Ali to Ali (A.S.); 2. Showing enmity toward followers (shī‘as) of Ali; 3. Absolute enmity to Ahl al-Bayt (A.S.); 4. Expressing enmity to Ahl al-Bayt (A.S.); 5. Religious devotedness to enmity toward Ahl al-Bayt (A.S.). By careful consideration of the evidences referred to in this writing, we would find out that the criterion for presuming any person as anti-shī‘a, is their expression of enmity toward the Ahl al-Bayt (A.S.) and religious devotedness toward it. Although from the viewpoint of the renowned majority of the jurists many rulings such as unbelief (kufr), ritual
impurity (nijāsa), etc. is directed toward nāṣibīs, despite the possibility of their will to unbelief vs. belief in traditions, they cannot be considered as unbelievers (kāfir) in its connotative meaning (unbelief vs. Islam); also, what is meant by ritual impurity of the nāṣibīs is their innate malice.

The occurrence of newly-emerged and unprecedented phenomena in various medical fields raises questions as to their legality or illegality. Despite the fact that one of the most important evidences of the jurists in this regard is the verse on alteration of creation, which because of absolute disapproval provides initial ground for
unlawfulness, some, however, by modifying the absoluteness of the verse have dedicated the alteration of the unlawful to the legislative alterations; and as a result have believed in lawfulness because of withdrawal of creational alterations from the referent of the verse, whereas there is no reason for withdrawal of creational alterations from the referent of the verse. In contrast, many of the Sunnī jurists have generally issued legal decisions to the unlawfulness of such phenomena, resulting from lack of accurate conception of the subject and untrue impression about the concept of alteration of creation; whereas it is possible to approve lawfulness while preserving the absoluteness. With the descriptive-analytical method and using interpretations and traditions and with the aim of accurate recognition of one of the key concepts of the Qur’an, the above research intends to analyze and examine the subject (muta‘allaq) of the unlawfulness mentioned in the verse by avoiding going on any extremes and, as far as possible, through preserving the verse’s designative manifestation, so that by determining the yardstick of prohibition (taḥrīm), the instances lacking proof would be excluded from the referent of the verse. Because, despite the absoluteness of the verse, the subject of prohibition is not alteration “in its own right”; rather, it is alteration of “Allah’s creation” due to its attribution to Allah in terms of issuance aspect. And since the action issued by
Allah consists of the feature of perfection seeking and prudence and contains beauty, or rather the most beauteous, thus any alteration opposing the above features is forbidden and the rest are out of prohibition criterion.

In legal works, the obligatoriness of commanding right and forbidding wrong has become restricted to stipulatory realization including “security against loss”. The jurists believe that commanding right and forbidding wrong has “a suspended and conditional obligatoriness” toward the stipulation of security from loss in such a way that when a depravity or loss follows commanding right and forbidding wrong, this obligatoriness does not have actuality and is voided. Having re-examined the issue, the writers consider the
evidences of the generally accepted view as violable despite its enjoyment of “great publicity”. Briefly put, the writers believe that commanding right and forbidding wrong as a legal obligation has “an absolute and non-suspended obligatoriness” toward qualified condition.

The evidence of legal rules is sometimes a tradition with different impression, sometimes it is of Sh‘īa origin, sometimes of Sunnī origin, and sometimes sharing both Shī‘a and Sunnī. With a brief explanation of the principles of ‘alā al-yad (owning an object by
having it at one’s disposal), kharāj (tribute), “assessment of significance”, and the “genealogy” of the hadith, ‘alā al-yad mā akhadhat ḥattā tu’addiya (It is incumbent upon man to give back what is at one’s disposal) and kharāj bi al-ḍāmān (tribute by surety) from the two major sects (Sunnī and Shī‘a), the present article explores into and researches about the origin of these two hadiths. The renowned majority of the Sunnī and Shī‘a jurists consider the principle of ‘alā al-yad applicable to sound contract, the benefits of mustawfāt (secondary benefits) and non-mustaqfāt of corrupt contract, and misappropriation; and do not consider the principle of kharāj applicable corrupt contract and misappropriation. Ibn Ḥamza from among the Shī‘as and Abū Ḥanīfa and Abū Yūsuf from among the Sunnīs consider kharāj as included in corrupt contract and misappropriation. The writer presumes surety (ḍamān) in the two principles as homonyms and the relation between the two as divergent and, like the Shī‘a jurists, finds the hadith “It is incumbent upon man to give back what is at one’s disposal” and “tribute by surety” to be of Sunnī origin. Furthermore, by providing the time these two hadiths entered the Shī‘a sources and the motivation for relying on them, he (the writer) considers as inefficient the most outstanding narrative reasons for the principles ‘alā al-yad and kharāj for the Shī‘a jurists and just to be presumed as confirming other reasons.

Jurisprudence and Fundamentals of Islamic Law, Tehran University In the methodology of Islamic jurisprudence (‘ilm al-uṣūl), the decisive belief of the religiously accountable (mukallaf) is called certitude (qaṭ‘), which is extended from knowledge to double ignorance. In categorization and explanation of ‘ilm al-uṣūl, the psychological aspect of certitude has been highly emphasized and its epistemological aspect has been neglected. Apart from this issue, careful consideration of the dispersed discourses of the authenticity of certitude indicates that from the viewpoint of the uṣūlīs the authenticity of certitude is ultimately centered around the existence of its epistemological rather than psychological fundamentals, although their approach in stating views and arranging them has been paying special attention to the psychological aspect of certitude. It is
attempted in this writing to explain the necessity of paying attention to the epistemological fundamentals of certitude and clarify the benefits of this approach. Furthermore, this approach is more compatible with theological and narrative principles and provides the possibility of comparison between the discourses of authenticity in ‘ilm al-uṣūl and the discourses concerning the justifiability of propositions in epistemological sciences.