مجله فقه مقارن
پیاپی 7 (بهار و تابستان 1395)

With its detailed and problem-oriented procedures, the comparative methodology is among the most important issues in methodology. It is also one of the most recent topics in the field of Islamic jurisprudence and, until the contemporary age, had been almost completely neglected by jurisprudents. Comparing issues in the philosophy of jurisprudents such as Ibn Hazm, who both experienced a religious conversion and was the leader of a religious sect, can contain critical methodological implications. In this study, we aim to analyze the issue of sleep as an invalidator of Wudu (ablution) which is a disputed issue and over which Ibn Hazm argues against all Sunni jurisprudents. In this light, we consider possible methodological implications for jurisprudential interpretation and the quality of interacting with the text. From among the important points that can be extracted from the methodological discussion on this issue, we can point out the quality of understanding and interpreting the literal meaning of texts; the process of discarding impossible meanings; historical analysis, its use in ruling out contradictory meanings and its effect on solving intertextual conflicts; and the Role of extracting the denotations of texts in confirming jurisprudential orders.

The question of when in vitro embryos turn to living human beings, and should not therefore be destroyed, has been a matter of significance attracting Muslim jurisprudents special atention. The legitimacy of destroying in vitro embryos depends on when they acquire the status of living human beings. Religious scholars of the Sunni schools of law have very different and diverging opinions concerning this issue. In this comparative study, we aim to examine the prohibition of destruction of human embryos developed via in vitro fertilization from the perspective of Islamic schools and based on Islamic rules. The findings indicate that, according to the majority of Maliki jurisprudents, some Hanafi jurisprudents, Ghazali (a prominent Shafi’i jurisprudent), Ibn al-Jawzi (a prominent Hanbali jurisprudent) and the majority of Shi’ite jurisprudents, the sanctity of human embryos developed via in vitro fertilization depends on their establishment in the uterus. Therefore, it is legitimate to destroy in vitro embryos but only before they are located in the uterus.

Islam provides Diyah (blood money) for non-Muslims living in Islamic states in case of committing crimes against them. However, the amount of Diyah has become a matter of controversy among jurisprudents. Hanafi jurisprudents believe in the equality of Diyah for Muslims and non-Muslims. Maliki and Hanbali jurisprudents consider half of a Muslim’s Diyah for non-Muslims whereas Shafi’i jurisprudents argue for one- third and one- fifteenth of a Muslim’s Diyah for Ahl al-Kitāb (People of the Book) and for other non-Muslims, respectively. The majority of Shi’ite jurists agree on the amount of eight hundred Dirhams as Diyah; however, other jurisprudents present a more detailed evaluation – considering the equality of Diyah for Muslims and non-Muslims; or one- third of a Muslim’s Diyah for non-Muslims; or else, eight hundred Dirhams depending on the circumstances. It seems that the evaluations considering equality between Muslims and those non-Muslims who adhere to the terms of their treaties with Muslims are reasonable. However, the evaluations that consider different amounts of Diyah, if correct, can be attributed to the circumstances in which non-Muslims violate the terms of their obligations.

Following a group of Shi’ite jurisprudents, Article 338 of the Islamic Republic of Iran’s Civil Code defines sale as consisting of “giving possession of a specified object (Ain) in return for a known consideration”. Since the word Ain is defined in contrast to “interest” and “right” by Shi’ite jurisprudents and to “debt” by Sunni scholars, the question is whether intangible assets can also be transmitted in the form of a contract of sale. If yes, it will be possible to achieve an integrated legal resolution by implementing sale-related laws and rules in these cases and by preventing disagreements on this issue. By reviewing basic jurisprudential and legal conceptions of sale, object, property and right, the present study concludes that, considering the popular nature of sale and the materiality of some intangible properties in the eye of the public as well as the problematic extension of the word object to include intangible properties, it is necessary to revise the definition of sale. Convinced that the objectivity of the object of sale is not an exclusionary condition, some Hanafi, Shafi’i and Hanbali jurisprudents use the word property instead of Ain (object) to resolve the problem of the popular norm.

An important question after the death of a testator is whether his or her debts and obligations are cancelled when exceeding the value of the deceased person’s properties or they are exigible from the possible revenues derived from his or her properties in the future. Many scholars believe that, considering the completion of the Dhimma (obligation) and Ahliyyat (capacity for acquisition) after death, debts and obligations are cancelled and the revenues derived from the properties of the deceased person belong to the heirs. Using a descriptive-analytical method, the present study aims to reexamine the principles of the theory of the termination of obligations after death and the status of obligations exceeding the value of the deceased person’s properties until the return of debts from the perspective of Islamic schools. The paper also aims to study the relationship between Tamattu (enjoyment) and Dhimma (obligation) and to present arguments for the persistence of obligations after death besides critiquing the principles of different views on the issue. Finally, the paper concludes that debts and obligations persist after death as the obligation of the deceased person. According to this view, not only the debts must be paid from the properties remained after death but also the exceeding amount is exigible. Therefore, the revenues derived from the properties belong to the deceased person until the complete liquidation of debts.

In Islamic jurisprudence, Tas’ir is defined as the pricing of goods or services by the ruler or his representative and determining that price as the basis of transactions. All Shi’ite and the majority of Sunni jurisprudents agree that Tas’ir is Haram (Forbidden) in normal conditions when there is no hoarding or surcharge. In cases of popular need for specific goods and services, monopoly on the production or sale of goods, hoarding goods, surcharge and gross difference in price, price determination is allowed. However, the question is what commodities are subject to pricing in permissible cases. The present study addresses the theories of Islamic jurisprudents to answer this question. Some Sunni jurisprudents permit price determination only in the case of food for humans and animals; some others in the case of quantifiable and weighable goods; and the rest in the case of all goods needed by the society. For observing justice and preventing oppression, enjoining good and forbidding wrong, and the principles of no harm (La darar) and no distress (La Haraj) and considering weak arguments for limiting price determination, the present study concludes that price determination includes all essential goods and commodities needed by people, that is, goods that cause harm or distress among the public when rare or expensive.