فصلنامه فقه و اصول
پیاپی 112 (بهار 1397)

Division and diversification of human beings into two categories of Muslim and unbeliever (kāfir) means neglecting to include another category of human beings. This division has a long historical background and seems to be logical to reason and undeniable from the sharia perspective. Studies clarify that there are arguments sufficiently convincing for acceptance of a third category of human beings. Actualization of the rubric of Islam requires components and elements, without which this rubric would not actualize. Similarly, for the emergence of the rubric kufr there needs to be such components and circumstances as denial and disclaiming voluntarily, knowledge, and free will. With the lack of components, neither kufr would be actualized nor would Islam penetrate into hearts and behaviors. Besides, the conceptual contrast between Islam and kufr is in such a way that the acceptance of the third group is not faced with rational obstacles and difficulties in terms of confirmation and with prohibition by sharia in terms of verification. Therefore, the untruth and inadmissibility of the proposition “every non-Muslim is an unbeliever” is by way of universal affirmation (mūjiba-yi kulliyya) the outcome of examining the evidences. Documented by religious sources, this group can be called subjugated (mustaḍ‘af), which demand their specific legal rulings and it seems that, on the one hand, they do not enjoy the Muslims’ special advantages, and, on the other hand, they don’t lie under the restrictive and limiting rulings of the unbelievers.

Shaykh Anṣārī has implicated eight points from the semantics of the single words and concepts of the verse of Naba’ (Q. 49: 6) and has on the basis of these implications asserted the soundness of adhering to the external meanings of the Qur’an. The problem set up in this research is to expurgate the implications of Shakh Anṣārī and to critique it. According to the findings of the research, it is clarified that some of these implications are not correct; however, his implication is correct in that the verse of Naba’ lacks concept and its language represents the necessity of verification.

Up to this day, the only effective form of the condition of conventional and evident inequality between the financial value of bilateral-contractual commitments in Imāmī classical jurisprudence and law of Iran’s commitments, has been considered to be the traditional and familiar phenomenon of judicial-economical deception (ghabn), which is referred to as comparative (muqārin) deception (at the time of concluding a contract). The question is: what impact does the belated decadence of commutative justice after including a transaction and in the period of executing the contractual commitments will have on the validity span of the contract or on the rate of final commitments of the two parties? The silence and the lack of specific legal statute in Iran’s regulations as well as brief versions and sometimes versions negating the influence of “contingent deception” from the civil law sources of Islam on one hand and the needs of the interior and exterior commercial relations for legal support of the contracts that are constantly exposed to the changes governing them on the other hand, prompted the writers to reexamine the principle of legitimacy and the possible outcomes of the theory of contingent deception on the discretionary (ijtihādī) texts and sources of the Imāmī jurisprudence. In the
present research, while attempting to give an absolute redefinition of the event of deception and thematic identification of contingent deception, the judicial status of contingent decadence of the contractual balance of counter-values are explained and its efficiency in deception-oriented exchange transactions based on the principle of denial of loss and the theory of implicit stipulation is proclaimed legitimate and influential. It’s proportionate and equitable outcome is introduced to be the judicial moderation of the commitments by way of obligating the deceiver to pay the balance and in case of impossibility of moderation, the option for the deceived to cancel the contract.

Given the frequent use of the term “general refusal of specification” in jurisprudence and principles of jurisprudence, while examining the history and conceptology of this term and the terms similar to it, this paper undertakes to investigate the reasons mentioned for the refusal of specification and after studying them, introduces the eight criteria: containing rational cause, universal inferred from causation, position of limitation and granting criterion, restriction, position of gratitude, natural proposition, maximal specification, position of avoidance and denial; along with the related applied examples for every criterion. In conclusion, a general criterion, including all instances, as well as the scope of refusal of specification of the generalities is determined.

Passage of time in the context of extinction of the right to take legal action as an imperative principle related to the procedural rights is of importance in the knowledge of law. This principle means that with the passage of certain length of time in law, the claim or complaint is no longer admissible. The importance of the matter is to the extent that by issuing order of inadmissibility in civil law and issuing order of suspending prosecution or suspension in criminal law, the execution of the pending judicial case with any degree of importance is declared as dismissed and thereby a kind of legal order is brought in the judicial structure of the country and the entrance and accumulation of millions of dossiers is prevented. This principle, however, which was applied in civil code of procedure before the Islamic Revolution, was declared as illegal in civil affairs after the Revolution with respect to the view of the majority of Guardian Council members, although it was approved in canonical punishments. The basic question is whether by alluding to the legal criteria, the passage of time can be exploited in the modern form of the civil law? In principle, what is the viewpoint of the Imāmī jurists in this respect? The writers maintain that given the legal mechanisms and the traditions extant in reliable legal sources and the viewpoint of some Imāmī jurists, the legal soundness or at least lack of legal problem of extinction of the right to take legal action by means of time lapse can be proved. Accordingly, hypothesizing that time lapse as causing or extinguishing the principle of this right does not have a narrative origin, the writers have undertaken to criticize the opponents of time lapse as extinguishing the right to take legal action, which is the viewpoint of the renowned majority of the Imāmī jurists, and have provided certain ways to reject it and to prove the legal validity of time lapse.

After studying the viewpoints of the uṣūlīs concerning the disconnected universal and particular, in order to find out how custom (‘urf) encounters this issue, the definitive ruling (iftāʼī) and didactic traditions are separated from each other and it is clarified in a legal case study in one of the challenging legal problems that in the arguments of “inheritance of the wife from landed property” that part of the discourse of disconnected universal and particular is efficient, in which the universal is prior and the particular is posterior and both are didactic and mutually negating (mutināfī), the reasons are not interpretive to one another, and the particular is issued after practicing the universal. Since in this case, custom creates a contradictory relation between didactic disconnected universal and particular, we have to refer to the principles of balance and preferences. Furthermore, while examining the uṣūlī approaches, the degree of the uṣūlīs’ loyalty to their principles in jurisprudence is touched upon.

One of the significant discourses of Hajj pilgrimage is “prohibitions during iḥrām”, including fusūq. Being the verbal noun or the exaggerated mode of fasaqa meaning abandoning obedience of God in Hajj discourses, fusūq has been controversial among the eminent jurists and its source may have been the related traditions. There are three categories of traditions in this regard. According to one, fusūq is the same as lie and according to the other, it means lie and curse, and the third category has interpreted it as lie and self-praise. Despite the fact that the renowned majority of the jurists have considered fusūq as meaning lie, the true view is that it means lie, curse, and self-praise; that is because the traditions of this discourse have no enunciated contradictions and by reconciling between them we would claim that fusūq includes lie, curse, and self-praise. From among the jurists, only Shaykh Mufīd claims that lie invalidates Hajj. However, the Sulaymān b. Khālid’s Ṣaḥīḥ rejects this view because, as limited in number, intercourse (rafth) is considered as invalidating the Hajj.

Revilement (sabb) – particularly reviling the believers – is among the spiteful matters to the legislator and its unlawfulness is unanimously agreed upon by all Muslims. Despite the fact that this subject has been brought up in jurisprudential discourses such as the one on justice contradictions and chapters relating to illicit professions, legal punishments, discretionary penalties, and its rulings are studied, there are still ambiguities in it needing to be researched about.Of the significant outcomes that are achieved in this research while analyzing the concept of sabb, is the expansion of this concept; conditions such as imperativeness of sabb and encounter with the masbūb (the reviled), which were assumed to interfere in the truth of sabb rather than in the concept of sabb nor in the criterion of its ruling, are valid. Concerning the condition of the addressee being impressed and offended, if not being impressed by sabb is because of the existence of a trait in that person, that trait would not change the ruling of sabb due to the proofs being held true; but if it is because of the existence of a trait in the speech, it is irrelevant to sabb by way of qualification.Similarly, concerning the issue of requitement in sabb, the view of the non-permissibility of requitement in sabb is strengthened by juxtaposing the arguments, because sabb is in itself evil and an evidence of “false speech” and unlawful; besides man’s right, there is also Divine right in it, then the title of compensation (muqāṣṣa) cannot be a license for perpetrating it.