فصلنامه فقه و اصول
پیاپی 114 (پاییز 1397)

“Not suspending the implementation of ḥadd (legal punishment)” is a jurisprudential principle exclusive to the Criminal Law. According to the famous view among jurists, if a man with sanity commits a crime worthy of legal punishment but becomes insane before receiving the punishment, implementation of the punishment would not be suspended until he recovers his sanity, rather he would be punished  when he is still insane. However, some jurists believe in suspension of the punishment until the criminal regains his mental health. Some other jurists, however, have presented other possibilities and views on the issue. After considering the approving and disapproving proofs of the principle, and in view of the details, the writers accept the principle in general. The paper provides a reference-based analysis of the above-mentioned conclusion by presenting its supporting proofs and criticizing and discrediting the opponents’ views and evidence.

In contemporary researches about the issues concerning fiqh and uṣūl (jurisprudence and the principles of jurisprudence), exploring the
origins and historical traces of concepts and views has gradually become a part of their conceptual and assertoric principles; the method that definitely would be the only way to have a profound understanding of an issue. Likewise, it is necessary to apply this method to have an in-depth research regarding uṣūl ‘amalīyah (practical principles). The paper explores the historical origins of general matters of uṣūl ‘amalīyah and, through an inductive study in earlier Shī‘a and Sunnī texts, intends to answer the questions like: the way these concepts entered in demonstrative jurisprudence and uṣūl discourses, their common characteristics, the earlier scholars’ approach to uṣūl ‘amalīyah, application order of these principles, their position, their relation with each other, and their internal order.
The research concludes that uṣūl ‘amalīyah, however, have firm bases in Imams’ (A.S.) teachings, but as regards compiling, their origins trace back to Sunni demonstrative jurisprudence and uṣūl texts.
From earlier Shī‘a and Sunnī scholars’ point of view, uṣūl ‘amalīyah have two general characteristics: first, these principles are definite, and second, that they come into effect after amārāt (denotations).

The paper is to examine the objections to the efficiency of some jurisprudential issues especially concerning the matter of enjoining the right and forbidding the wrong through the case study of its terms like: having enough knowledge about the right and the wrong, capability and power, safety, and the chance of impact. It also explores the origins of the harming consequences that have been brought about by such impractical approaches to jurisprudence and religion, the consequences like issuing infeasible or contradictory rulings that have resulted in the suspension of such practices as enjoining the right and forbidding the wrong. Then, it proposes the working methods for improving the efficiency and applicability of such jurisprudential issues.

Willful murder is an extremely serious crime in human society, which is increasing day by day. The article explores into jurisprudential proofs to find out the impact of intent on considering killing as a willful murder. Because the sources of criminal law are mainly scriptural, and as the devotional approach presides over other approaches, so the hadiths are considered more specifically in this paper. The research findings show that if the intent to murder is proven, then it would be a specific intent that, in addition to proving the perpetrator’s fault, definitely leads to the judgment of retaliation. But, if the intent to murder is not proved to the judge, and the only evidence which shows the intent to murder is using lethal weapon, then, although he is definitely guilty of using lethal weapon, this general intent would not result in retaliation, and the tradition that is resorted to issuing the sentence of retaliation in this case is not only weak and unconfirmed, but it is in conflict with other traditions as well as the principle of prudence in blood. Consequently, the sentence of retaliation is not proved in general intent, though the fault and guilt of the perpetrator is inevitable.

Defining the type of punishment is an important matter about ta‘zīr (discretionary punishment) which, in turn, is an important and everyday issue in the judicial system. Some scholars believe that according to the rule of “ta‘zīr is left to the discretion of the ruler”, the ruler enjoys considerable leeway in deciding an appropriate form as well as the amount of punishment, while other scholars say that the freedom given to a judge through this rule is restricted to the amount of punishment and the form of punishment is out of his jurisdiction. The first group of scholars, in addition to the lexical references, has resorted to explicit hadiths received regarding the issue, as well as the ordinances that show the vast scope of the authority a ruler possesses. The paper, after criticizing the above-mentioned reasons, presents evidence from hadiths to refute the wide authority of a ruler claimed by these scholars. Moreover, even supposing such wide authority of a ruler, the punishments like imprisonment are inconsistent with some principles and general rules like wizr (personal responsibility of offence) and “ta‘zīr must be more lenient than ḥadd”.

Although jurists and legal experts have clear standards for distinguishing ‘aqd (a bilateral act) from īqā‘ (a unilateral act), but it is difficult to say about some legal contracts whether they are among‘uqūd or īqā‘ because of the similarities they have with both kinds. Although a power of attorney is explicitly counted as ‘uqūd in Civil Law as well as the famous view among jurists and judiciary writers, its legal character is still a matter of debate. Some scholars say that power of attorney is an ‘aqd in legal character while the others regard it an īqā‘, however, some scholars cannot prefer one view and believe that power of attorney is something between ‘aqd and īqā‘. Indecision about the legal character of power of attorney origins in articles 656 and 681 of Civil Law. Article 656 explicitly mentions power of attorney as an ‘aqd, while Article 681 is codified in a way according to which a power of attorney is more similar to an īqā‘. Counting power of attorney among the contracts that are revocable easily by withdrawing the permission strengthens that view. Considering the definition, conditions, and the results of power of attorney, the writers of the paper believe, shows a way out of dissension that is establishing a new kind of legal contract namely “combined īqā‘” whose one instance could be power of attorney.

Drug trade has been threatening the human society for many years and the legislators of different countries are in search of the ways for prevention of drug trade and fight with drug traffickers. The legislature of the Islamic Republic of Iran has encountered that criminal matter by adopting an aggressive strategy and passing heavy penalties. One of the punishments enacted for such crimes is death penalty. There are some questions regarding the issue that comes to mind, like: is prescribing a heavy punishment like death penalty for drug crimes in conformity with Islamic jurisprudence? What are its jurisprudential bases? Is such enactment judicially justifiable? The writers analyze this way of legislating criminal law against the narcotic drug in this paper by exploring its legal-judicial grounds and intend to prove that drug trade is of the crimes that entail discretionary punishment. Imposing death sentence as it is pronounced by drug law has no strong jurisprudential support and needs some amendment.

The right of pre-emption presented in jurisprudence and statutory law is one of the causes of acquisition and an object of Article 140 of Civil Law. One of the main conditions for acquiring the right of pre-emption, which most jurists and the Civil Law assert, is transferring the share by one shareholder through a sale contract. The paper, at first, mentions the main conditions needed for acquiring pre-emption right and presents different views regarding these terms, and then explores the supporting documents of the famous view. There are some indications such as: considering the justification mentioned for this right in hadiths, considering the Holy Legislator’s (shāri‘) definite aim for this right that is the denial of harm, and the necessity for right legislation and prevention of fraud; which would lead to the conclusion that pre-emption is a general right that could be extended to other bilateral contracts.