فصلنامه فقه و اصول
پیاپی 122 (پاییز 1399)

The legal approach to political crime is rooted in the intellectual developments of the contemporary world. Criminologists have categorized crimes as ordinary and political. Although political crimes may lead to the collapse of the political system, jurists have granted them privileges, collectively referred to as the “leniency regime”. Some of the reasons behind such regime are: lack of motivation for personal interests, lack of intention to attack citizens and having benevolent motives. The present article seeks to recognize such differences and benefits based on the rules and principles of Islamic criminal jurisprudence and to explain its proofs and foundations. This research has been compiled through descriptive- analytical method and has reached the conclusion that the leniency regime is completely defensible and legitimate. Its proofs are: a number of verses of the Holy Quran; the practical Sunna (conduct) of the holy Prophet (PBUH&H) and Ali (PBUH) towards political opponents; the reason of wisdom; implicative meaning of the principle of correctness; proofs of the necessity of advising the Muslim rulers; the benevolent intent and the temporary nature of a political crime.

Islamic jurisprudence, according to the most famous definitions, is the science of declaring the precepts and inferring them from their proofs and jurisprudential sources and textbooks of this field of Islamic sciences have, undoubtedly, spared no effort in declaring the religious precepts and their proofs. However, the experience has proven that for precepts to be enforceable, sustainable and flexible in various social and historical contexts, the proofs alone are not sufficient and it is also very important to state the reason of precepts and the manner of their application. Unfortunately, in jurisprudential works, especially, Shiite sources, due to fearing of distancing oneself from devotion to divine precepts and falling into the trap of analogy and arbitrary inferences, not much attention has been paid to these two categories. The present research, in order to increase the efficiency of jurisprudential sources and strategizing the studies of this field, attempts to prove the necessity of dealing with these two categories and the consequences of ignoring them in sources and textbooks, through mentioning real examples and instances as two important strategies for increasing the efficiency and effectiveness of jurisprudential texts and at the same time, note the disadvantages of excessive etiology and methodology of precepts.

The combination is that by choosing the opinions of different schools on an issue, the individual acts in such a way that his act is not correct according to the opinion of any of the schools. The Islamic jurists have been divided into three groups regarding the verdict of combination; a group, citing consensus, Sadd Al-Zaraie (blocking the means) and the absence of a record in the early days of Islam, has absolutely ruled that it is not permissible; On the other hand, another group believe that it is absolutely permissible. In order to prove the validity of their opinion, this group refer to verses and narrations indicating the negation of constriction and duty, the act of the companions, the permission of imitation of the Mujtahid by the ordinary people and some jurisprudential rules. The third group have considered combination permissible subject to conditions and criteria such as not opposing the consensus, not leading to Tatabbo Al-Rokhas (searching the religious permissions), not opposing the rules of Sharia and the goals of the divine lawgiver. Comparing the above three viewpoints and their arguments, it can be said that the third one seems to be preferable. Because, firstly, by avoiding the absolute prohibition of combination, it does not provide the causes of hardship and constriction for the duty-bounds and is also in harmony with the spirit of easiness and leniency of the religion and on the other hand, by setting conditions and criteria, it has prevented the problems that exist in the theory of absolute permissibility of combination.

The rule of negation of hardship is one of the most efficient and important jurisprudential rules in terms of application in various fields of jurisprudence. The generality of this rule seems to be incompatible with the troublesome and harsh rulings that exist in religion. Therefore, the present article seeks to answer the question of how one can both accept the proofs of the harsh rulings and commit oneself to rejecting the harsh rulings in religion. The results of this article which has been prepared through a descriptive-analytical and library method show that out of the total number of answers to this doubt, four approaches can be presented: rejecting the existence of harsh rulings in the religion (minor premise problem), not accepting the generality of the rule without restriction (major premise problem), modifying the meaning of Haraj (constriction) and not addressing the doubt itself. Among all answers, the doctrine of “restriction of the negation of constriction rule” is a suitable and perfect answer. Other answers are either essentially defective or require complementary evidence and therefore cannot be accepted as an independent answer.

In today's law schools, the nullum crimen, nulla poena sine lege principle and the codification of the list of crimes and punishments are, without any doubt, considered the doctrine of legal scholars. However, with the exponential increase in the number and quality of new crimes and the absence of their criminalization, the question arises as to whether the lack of a codified criminal law for such crimes will prevent judicial action and the issuance of an appropriate sentence. This paper has been written with the aim of reviewing the concept of the nullum crimen, nulla poena sine lege principle in order to adopt appropriate criminal measures against emerging crimes, by examining the Usuli and jurisprudential arguments and by descriptive method and analysis of documents. Findings of the research show that, when criminalizing, it is necessary for the legislator, through a new reading of the above said principle, instead of “exhaustive explanation of criminal instances”, while providing a comprehensive definition of crime by setting a specific criterion to distinguish the crimes, leave it to the judge to determine the criminal instances. Since in the case of emerging crimes, even in the absence of criminal law, jurists and Usulis believe that ruling on the permissibility of such doubted issues should be avoided, the legislature is expected to accept the invocation of principle 167 of the Constitution in the event of such crimes that undermine national interests only by criminalizing and penalizing in the form of discretionary punishments until the enactment of the law by establishing a judicial oversight mechanism.

The rules of Islamic jurisprudence i.e. the applicable general rules in various fields of Islamic jurisprudence are extracted from jurisprudential sources and as a general rule and law, pave the way for other issues. One of these general rules is the Hasm (eradication) rule according to which in cases where the primary verdict cannot eliminate an evil; such an evil may be eliminated by destruction of the origin of strife and corruption or eradication of the subject of corruption and strife. This paper has extracted the eradication rule by referring to verses and traditions which may be the source of inferring the rule as well as considering the opinions of some jurists in different fields of jurisprudence. Then, conditions and limitations of applying the rule have been explained and explored and finally, a number of current problems with regard to emerging issues have been solved.

The common and conventional meaning of Istishab is that the definite affair should be of the past and the doubted affair should be of the present time; however, sometimes in the field of inference, we are encountered with a phenomenon, known as prospective Istishab in which the definite affair exists at the present time and the doubted one relates to the future. The famous opinion among the later Usulis is that such Istishab is applicable and the absoluteness of the texts related to Istishab is the main argument of the famous Usulis for this claim. The present article, through analyzing and studying the arguments of the proponents and opponents of the application of this Istishab, while refusing the famous opinion and accepting the non-authority viewpoint, accepts the existence of behaviors from the divine lawgiver and the people of the religion which are thought to be identical to the content of this Istishab based on a kind of certainty as to the subsistence of the state or a rational ruling on the necessity of starting the act when this is not problematic or on the basis of the “unity of the state of the phenomenon at a later time with its first state” rule without its relationship with prospective Istishab.

The legitimacy of offensive jihad has been considered a necessary principle in ancient Islamic jurisprudence books. In Islamic jurisprudence, frequently, the purpose of the primary jihad is the conversion of infidels to Islam and it is referred to as the "jihad of invitation". However, the later Islamic jurists have presented two other theories and doubted the validity of the previous theory. Under the second theory, primary jihad is aimed at the geographical expansion of the Islamic state and the third theory declares that the prevention of endangering the security and stability of Muslims is the goal of primary jihad. The study of these three theories about primary jihad has become a key and influential issue with regard to many contemporary issues of the Islamic world. In this research, using valid historical data, we prove that the call to Islam cannot be the purpose of primary jihad, and this interpretation is not compatible with various evidences.