فصلنامه فقه
پیاپی 101 (بهار 1399)

The subject of this paper is the study of the role of efficiency and inefficiency of the religious ruling as an inference. The criteria for the effectiveness of the religious ruling as a hypothesis, the ability of the religious ruling to provide its purposes, its adaptation to the purposes of other religious rulings and the purposes of Shari'a and the goals of religion, are all taken into account and the inefficiency of the religious ruling has been divided into absolute inefficiency (= general) and situational (= temporary). In this paper, the role of the effectiveness of the religious ruling in the inference of the religious ruling is examined in the context of issuing a narrative, resorting to the arguments, resolving the conflict, recognizing the dignity of the issuance, and recognizing the scope of the subject matter of the ruling. The research method in this paper, like the method of other issues of Usul Fiqh, is based on reason, rational and conventional arguments, and according to the principles of the Ahlulbayt School. The findings of the study are as follows: The absolute inefficiency can distort the validity of an argument, cause resorting to verbal argument, and limit the scope of the issue in the form of an interpretation of the reality of the argument. Situational inefficiency can be effective in resolving conflict and contributing to the recognition of the dignity of the hadith issuance, but it is not effective in proving the obligation related to the intention of legislator from the religious ruling on the subject of the ruling. Finally, the result of the study suggests that the exact explanation of the role of absolute or situational inefficiency of the religious ruling in the place of inference is far from excess.

The rule of wasting is one of the most important rules by which issues related to liability (ḍamān) and civil liability in Islamic jurisprudence (fiqh) and law are resolved. In each civil law and the Islamic Penal Code, this rule is considered as a basis and source of liability. At first glance, arguing for this rule does not seem difficult. However, a careful logical and realistic analysis shows that this requires various prerequisites. The most important challenge and issue in enforcing this principle is to explain the concept of "wasting" and in particular to provide a more objective and quantitative criterion for it. The objective of this study is to solve this problem through a descriptive and analytical method. Our jurisprudential and legal literature in this regard is not as big as the scientific literature of principles such as "ḍamān Yad (liability of possession)" and "negation of harm". However, the findings of the study suggest that the great Imamiyah jurists have made valuable efforts to standardize and regulate this rule.  The evaluation and examination of these perspectives will lead to the development of our jurisprudential and legal literature in this field. Some believe that with the approval of the new Islamic Penal Code, wasting as "being able to be documented" has been accepted as the sole basis of the civil liability for a crime, but the author of this article does not agree with the adequacy of this view and believes that the necessary elements for the realization of conventional documentation should also be explained in a clear way.

It is necessary for social jurisprudence to have a coherent intellectual system, since we are facing various needs and questions in the field of government and Islamic society today. Ignoring jurisprudential organization in this arena will make jurisprudence passive in the new world, subject to existing structures and strategies. In this paper, through organizing the issues, predicates, approaches, and ijtihad methods of social jurisprudence, an attempt has been made to give a proper discipline to this effective part of the jurisprudence. Accordingly, the organization of social jurisprudence in the field of scope and methodology and the process of forming social jurisprudence based on the mandatory-ijtihad model and the relation of principles, goals, social principles and Islamic social sciences with the jurisprudence of society and the jurisprudence of the social system of Islam have been explained. Some of the most important features of an ideal social jurisprudence are, development in the subject in the sense of the obligation of society, government, and history in religious discourses, development in judgment in the sense of the generality of the rulings in relation to behaviors, strategies and structures along with reforming governmental approach to jurisprudence in the sense of interest of Islam and Muslims, and finally explaining a mandatory-ijtihad model to discover the social rulings of Islam in its various behavioral, strategic, and structural aspects.

One of the certain obligations that jurists has always considered and cited in jurisprudence at the level of a general rule and in different aspects, is the obligation to maintain the common social system. Maintaining the political system, in addition to the special arguments it has, is subject to its arguments as far as the preservation of the social system is concerned. In discussing the ruling on maintaining the political system, one of the key and important issues is to examine the relationship between the necessity of its maintenance and the principle of legitimacy and its extent. The first question in this paper which is conducted by an Ijtihadi method based on jurisprudential arguments and resources, is "Is the necessity of maintaining the political system based on its own arguments limited to the legitimacy of the system or not?" Another question is whether, given the definition of legitimacy in the political system from a jurisprudential point of view, this legitimacy is a developed and absolute element that is realized only in one situation or is it relative, and in that case, will the ruling on maintaining the political system be different, depending on different circumstances? How to answer these two important questions plays a decisive role in determining the type of relationship between Muslims and political systems in Islamic societies. What is dealt with in this article is in line with the answer to these two general questions, which, after identifying some of the key concepts of the topic, are organized in two main areas.

One of the current authorities in necessary contracts, including lease contract, is the authority of loss. The loss that is based on the civil law and the most jurists' viewpoints is the loss that exists during the conclusion of the contract (simultaneous loss), and the loss that occurs after the conclusion of the contract and at the stage of fulfilling the obligations has received less attention from the experts. Since the lease contract is one of the contracts, in which the obligations of the parties are fulfilled over time and since all the obligations are not considered fulfilled only due to landlord withdrawing from the object of the lease, it is important to examine the authority of loss occurring in the lease contract, because it is possible that any change in circumstances may make the parties lose their balance after or at the time the contract has been concluded. Based on arguments such as the no-harm principles and the implicit condition, as well as the intellectuals' viewpoints and finally compulsion, the author of this paper claims that the occurrence of loss during the conclusion of the lease contract like the existence of loss at the time of concluding the contract can cause the right of authority for the party that has lost something in the contract. Such a solution would both help the efficiency of the current trade and economic system and it is in line with the principles accepted by the Iranian legal system.

Kissing someone's hand and its ruling is one of the issues that has always been discussed and debated among the followers of religions, especially in the present age and with the expansion of the media, it has become more serious. Since there is no extensive and integrated research conducted on this issue, the question about the ruling of hand kissing is an issue that will need to be explored in order to reach the stage that a good answer is found. From the Imamiyah's point of view, hand kissing is makrooh, except for the honor of a scholar, master, father etc. There are two viewpoints among the Sunnis: According to the first viewpoint, hand kissing is absolutely makrooh, and the owner (of the religion) and many of his follower have taken this view. According to the second viewpoint, all of the Sunni sects (Hanafi, Shafe'ei, Hanbali, and a group of Malekiyah) have elaborated this issue and, in their views, hand kissing for religious purposes (such as knowledge, asceticism, justice, honor, merit, adultness) is permissible or it is mustahab, and therefore it is permissible to kiss the hand of the scholar, the righteous man, the just ruler, and so on. Shafe'ei jurists also state that it is mustahab to kiss the hand of Sadats who are the children of Hazrat Fatima (s) - because of the honor of the family- but it is makrooh to kiss the hand because of worldly issues (such as wealth, status, etc.). Narratives have always been the main reason for those who believe in the permissibility or non- permissibility of hand kissing which of course, based on some of the arguments, the narratives that indicate the permissibility of the hand kissing - in terms of quantity, quality, and implication - are preferable to the narratives that indicate the sanctity of the hand kissing. In addition to hand kissing, kissing on the cheeks, forehead, eyes, glabella, face, head, etc., is also permissible. This study has been carried out with the aim of recognizing the arguments and explaining the ruling of hand kissing, which based on most of Imamiyah jurists, including Hanafiyah, Shafe'ei, Hanbaliyah and a group of Malekiyah, is considered permissible for religious purposes.

Apostasy and its punishments in Islamic jurisprudence is one of the challenging issues in the field of human rights. The current paper, through a descriptive-analytical method and with the help of library resources, has dealt with the conflict of this ruling with content of Universal Declaration of Human Rights, which implicitly emphasizes freedom of thought and speech. The findings of this study suggest that the Holy Qur'an, narratives, and conduct of Ahlulbayt and words of Shia jurists clearly emphasize the denial of realization of atheism and apostasy. If the individual fights with Islam based on his logical doubt and not enmity and obstinacy and does not violate the rational and ethical approach, there will not be any penal ruling of apostasy for him. Freedom of speech is not an absolute, unconditional right, and it is doomed to be restricted and limited if it is opposed to spiritual freedoms and human dignity. In civil liberties, in addition to those restrictions, other social considerations such as national interests, national security, and public order must be taken into account. It is through these social and civic constraints that apostasy is seen as an act of persecution and punishment. If apostasy remains an individual and personal matter, it must have an external appearance in the public arena in the place of litigation and punishment enforcement.