حسنعلی علی اکبریان

The constitution of many Islamic countries, including Iran, requires that all laws be based on Islamic rules. To comply with Islamic rules, religious sources and fatwa [religious decree] of religious scholars should be followed. The question, therefore, is which fatwa is the criterion by which legislative compliance with Sharia [Islamic law] can be achieved? Several theories have been expressed, such as the most knowledgeable scholar’s fatwa, the most famous fatwa, valiye amr [supreme leader]’s fatwa, and the most effective fatwa. This paper presents an alternative view, namely the theory of choice of fatwa for legislation. According to this theory, compliance with Sharia can be achieved by using any fatwa so long as it is issued by Shi'a jurists. Thus, enacting laws according to the fatwas of the mujtahids [Islamic jurists] will secure compliance with the Sharia. Based on this thesis, it is not necessary to enact laws according to the fatwa of the most knowledgeable scholar, or the most efficient or famous fatwa. Supporters of this theory are such prominent figures as Muhaqiq Naraqi and Sahib Javahir. In this research, the arguments for this theory have been stated and its problems have been resolved as much as possible. The adoption of this theory will offer a choice of fatwa in the legislative process, as well as a choice of fatwa by the judge in cases of non liquet. A law or judicial decision is considered to be contrary to Sharia when it is inconsistent with the consensus opinion of Shia scholars. The research method in this study is descriptive-analytical.

The theory of "conflict of conditional obligations in legislation" is about the scope and rules of legislation based on secondary titles. According to this theory, it is wajib (obligatory) in legislation that the rulings of Islam (including permissible, obligatory and status) and the goals of religion and the purposes of Sharia need to be all considered; that is, it is the condition of correctness, and is considered as the conditional obligation in legislation. These conditional obligations may conflict with each other, and it is in this conflict that the legislature finds the permission of legal silence or the permission of legislation contrary to the religious ruling. In the present article, this theory is compared with other theories in this regard, their commonalities and differences are described in detail, and through this comparison, the author has both explained the independence of the theory of the conflict of conditional obligations in legislation based on those theories, and has clarified the scope and rules of legislation based on secondary titles according to these theories. The proof of this theory has already been explained in the paper The Theory of Conditional Obligations in Legislation and here it is only compared with other theories. The method of this comparison is analytical and based on library sources. The result of this paper is a detailed explanation of the scope and rules of legislation and legal silence based on secondary titles, and it can be applied in the legislative system of the Islamic Republic of Iran  , regarding the duties of the Guardian Council and the Expediency Discernment Council in legislation.

One of the most important legislative criteria in the Islamic government is the necessity of observing the sharia rules. Sometimes factors cause the Shari'a ruling to lose its effectiveness within the legislature, and to fail to achieve its goals. The subject of this article is to examine the role of efficiency and inefficiency of Sharia law in the legislative position; It is assumed that the jurist, as an inference, has observed all the rules of ijtihad and has reached a fatwa; Therefore, we are not talking about the role of efficiency and inefficiency in the inference process.The most important maps of the efficiency and inefficiency of the Shari'a ruling in the legislation are: 1 Determining the standard fatwa in the legislation based on the effectiveness of the Shari'a ruling. 2. Obliging the legislator to remain silent due to the temporary ineffectiveness of the Shari'a ruling; 3. Determining the appropriate fatwa in judging in cases where judges refer to fatwas, and interpreting the law in cases of legal silence of the law.The findings of this article show the exact role of efficiency and inefficiency of sharia law in determining the standard fatwa in legislation; And it determines its role in referring judges to fatwas and interpreting the law in cases of real and legal silence of the law.

The theory of conflict of conditional obligations in legislation is a theory on the scope and criteria of legislation based on the secondary topics (in jurisprudence). According to this theory, it is obligatory to observe the rulings of Islam (including permissible, obligatory, and status rulings) and the goals of religion and the purposes of Sharia in legislation, i.e., the condition for the correctness of legislation and the conditional obligation in legislation. If the obligation to observe one religious ruling in the legislation contradicts the obligation to comply with another religious ruling, or the obligation to observe a purpose of religion or a purpose of Sharia in the legislation, and the legislator considers the other party important, then, the law must be enacted according to the important party. The focus of discussion of this theory is in the position of the legislator against the unimportant ruling. According to this theory, he should ignore the law that is related to the unimportant ruling or enact the law in contradiction with it and appropriate to the important ruling. Since the permissible, obligatory and status rulings, as well as the aims of the religion and the purposes of the Sharia, are the subjects of this conditional obligation, it can be considered as the party to be conflicted. The criterion for permissibility of the law to be ignored, as well as legislation that is contrary to the religious ruling, is to observe the preferred principles of this conflict. In the present paper, the pillars of this theory are explained and proved in a jurisprudential way, to the extent of the capacity of a paper. This theory is related to the discourse of absolute Wilayat Faqih (Guardianship of the Islamic Jurist) and is based on it. The findings of this study are related to the duties of the Expediency Discernment Council (of Iran) in deciding on resolutions of the Islamic Consultative Assembly, which are introduced by the Guardian Council as illegal.

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 purpose of the present study is to investigate the criteria of distributive justice in economics and politics. We have therefore attempted to answer the question: "What good in government should be distributed fairly and what is the criterion of fair distribution?" In this essay, we first examine the two "assignmentist" and "consequentialist" views on distributive justice and discuss the relationship between assignments and outcome in distributive justice. Next, the relationship between distributive justice and other Islamic economic goals was studied, and distributive justice was analyzed in two areas: "providing public welfare" and "moderating wealth". The results suggested that the government should distribute its possessions and opportunities under the two rules of "providing public welfare" and "wealth adjustment". This criterion is conclusive; the findings also indicate that "task-oriented" norms such as equality, entitlement and need, or a combination of them, are not effective in today's societies. Distributive justice in the non-economic domain can also be pursued in other social areas - such as politics.

Famous Shiite jurisprudents consider alimony of wife as a custom, while the traditions and fatwas of the old jurists consider alimony as predetermined. In the history of this jurisprudential issue, the Mabsut of Sheikh-e Tusi is a turning point in the conversion of predetermined alimony to customary alimony. Sheikh-e Tusi, the great Shiite jurisprudent, has used Shafi‘i jurisprudence in this development. The effect that Sheikh-e Tusi has on jurisprudence in this regard is the main issue of this article. This article criticizes the model of Sheikh-e Tusi in the development of jurisprudence by examining the alimony of the wife in Shiite and Sunni jurisprudential books before the Mabsut and jurisprudential books after the Mabsut.

Although abortion is regarded as an evil and indecent act according to the holy shariah and the human societies, but in cases of contradiction between a mother`s health and her fetus`s life, based on lots of the jurisprudents` opinion, the mother is authorized to prefer her health. In spite of permission for an destruction of fetus, civil liability of remedial abortion is a problematic question. In this regard, following some great scholars` outlooks, the lawmaker has issued an opinion of extinction of liability.
Reviewing the absoluteness of the traditions in connection with the liability of diya for abortion is considered as one of most sensitive and difficult points of this subject. The method of taking absoluteness, accepting and refusing absoluteness of ahval (states) in these traditions is one of the prominent effective discussions in implication of these evidence. With analyzing appearance of the evidence, an enough assurance regarding taking absoluteness from these traditions will not be acquired. Though lack of their implication is not reliable, but lack of appearance is enough for disproving it. The only evidence is the practical principles of istishāb and barā`ah which determines the first principle in diyat and liabilities (blood moneys and zimānāt). This principle can be a proof of non- responsibility for remedial abortion.

The principle of "negation of oppression" was the subject of a scientific meeting held at the Institute of Meftah-e Keramat, which was raised by Professor Sarami and was criticized by Professor Aliakbarian. In that meeting, due to the belief of the presenter of the discussion to the difference between 'justice' and 'negation of oppression' in the context of inference, instead of speaking about the principle of justice, the principle of negation of oppression has been deliberated. And the result was that, firstly, one can not infer and prove the Sharia law based on rational discretion, and secondly: in the jurisprudential principle of negation of oppression, the rational recognition of oppression does not have validity in comparison to the principle itself.

The present article is based on the fact that the context of legislature is different from that of the judgment of the religious order. Upon this fact, a question arises as what sort of  relationship exists among the wisdom of the judgments, the aims and purposes of Sharia ( maqased al-Shari’a) and the objectives of religion with the requirements governing the rule of law in the field of Sharia or Islamic Law. According to the author, it is necessary in the legislative processes, prior to any legislative activity, the legislator be fully confident about the purposes as well as general objectives of the religion. In other words, if these goals and intentions conflict with the necessity of observing some of the other laws, one should act according to tazahom[1] in the law. These criterions are set in such a way that there is no clear and indisputable criterion between these two issues; nonetheless, it can be briefly mentioned that the consideration of the goals and the general objectives of the religion enjoys priority over the necessity of observing Mubāḥ [2], that is, changing mubah is easier than changing Ḥarām [3],or wajib[4]. This type of prioritization can be considered for many social realities. Indubitably, neglecting social realities in the context of legislation makes the goals of religion and the purposes of the law and also the wisdom of judgments get lost

The most important source for legislation in Islāmic government is the rulings of Islām. And, one of the most important legislation goals of Islāmic state is the establishment of social justice. This essay inquires about four roles of Justice in legislation. Firstly, is it necessary to observe inherent justice in legislation? And, dose Justice, beside and alongside the concern for enforcement of Islāmic rulings, engenders another concern for legislator? Secondly, what is the role of Justice in locating a criterion for Fatwā in legislating? Thirdly, what is the role of Justice in legalizing Islāmic canon law? What if legalizing a specific ruling portrays to be unjust? Fourthly, what if Justice conflicts with other goals of state or Objectives of Shariʿah? This essay uses an analytical method based on "Absolute Jurist's Authority" theory. Sunnī Fiqh and Juridical issues do not have a notable role in this essay. This essay falls under the Fiqh of legislation.

The authority and implication of the act of infallible (Masumun) Imam are of the most important issues and are widely used in Islamic jurisprudence (Fiqh). But in Uṣūl al-fiqh (principles of Islamic jurisprudence) of Imamiah (Twelver Shia) these have failed to find a place worthy of their importance. Allama Waḥīd-e Behbahānī (1706–1791) as the restorer of Uṣūl al-fiqh of Twelver Shia Islam after Akhbaris has been recognized as the most well-known Usulis who addressed this issue. Issues of this topic, according to what he has brought in very brief terms in Al Favayed al Hayeriya; Fayede no. 32 consist of the following five terms: 1) the authority of the act of infallible Imam, 2) the decrees derived from the act of the infallible Imam, 3) the evidences of locutionary act, 4) the effects of locutionary act, 5) various forms of doubt in necessity, Estehbab and doubt in the inclusion and exclusion of the act. The present paper attempts to investigate Behbahāni's principles in authority and implication of the act of infallible Imam. In this study, the evolutionary grounds had created in Sheikh AL-Ansari literature, should be appeared in Behbahāni's principles. In this Fayede, in addition to the above mentioned five Usuli issues about the act of infallible imam, Allama Behbahāni discusses the validity of explanation and interpretation of the infallible Imam and the reliability of the decree that Mukallaf (legally competent and religiously responsible) heard from the infallible Imam in his/her dream, which due to its exclusion from the issue of the Imam acts is not mentioned in this research paper.

Collecting data from the personal privacy of people by the Islamic government in order to protect the security and interests of the society has some forms and rules, which in this paper, three important related points would investigate: 1. Studying that whether all cases of collecting data from personal privacy of people, without suspicion of spying and plotting or the like, involve a violation of privacy? Innovation in this review is importance of distinguishing between brief or detailed procedure of collecting data. 2. Studying the implications of related evidence in respect of prohibition of the government's collecting data, where it is required to break the personal privacy of citizens. Innovation in this review is attention to inclusion and exclusion of denoting verbal arguments in respect to government searching (not searching of people from each other). Most of these arguments do not imply such inclusion; because, firstly, they are about people's personal relationships with each other. Secondly, they are about personal faults and sins. 3. Being related of available evidence about government's collecting data. Innovation in this review is the detailed and accurate explanation for the related evidence.
The method of this paper is descriptive-analytical and data collection method is library.

The subject of this article is Allameh Tabatabaee’s theory related to the authorities of Islamic governor in the legislation of variable decrees in regard with women. Through the analytical method, the present writing is to clarify and criticize Allameh Tabatabaee’s theory in solving the challenges before the decrees of religion consistent with some women’s decrees in the present century. The religion of Islam is of invariable decrees that some of them are misused in the community according to the conditions of time. Allameh Tabatabaee has stated the atmosphere of misusing some of the decrees related to women and family in the present century and consequently the meanness towards the women by them, and he has considered the solution of preventing this meanness and abuse to be the governmental decrees of legitimate governor. In this article, it has been firstly investigated Allameh Tabatabaee’s theory in the mentioned domain as well as its clarification and development in the other domains . Since his theory is convergent to Shahid Sadr’s “Mantaqat ol- Faraq theory”, they have been compared with each other. Afterward, it has been presented Mokhtar’s theory and finally the outcomes of these theories towards their appropriate application.

The relation between sciences and religion has been studied from different points of view, but it has not been studied much from the viewpoint of issues in (the principles of the Islamic jurisprudence). In this paper, I will empirical sciences on knowing the apparent meanings of the verbal evidence of the Quran and the tradition, replying on knowing the underlying reasons of the laws of sharia. I have sought to formulate these in terms of some rules. Som are as follows: the scientific interpretation can be accepted just in case it fits the type apparent meanings of the time when the law was issued; the new fitting is accepted in the case of the earlier apparent meaning without the new appa apparent meaning is reliable because of the scientific result in addition to an error in the previous apparent meaning; and the new apparent meaning scientific results-can deepen the previous apparent meaning.

For recognizing alteration and fixation of the rules deduced (Ahkam) from the traditions (Ahadis) three stages have to perform by Jurist (Faqih): In the first stage he has to clarify what is the primal principle (Asl) regarding the problem of alteration and fixation of the deduced laws (Ahkam); In the second stage he should try to find some evidences in favor of stability or changeability of the rules (Ahkam); and in the third stage he has to evaluate possible contradictions or consistency that the evidences might have. In the first part of this essay (that published in the previous issue of this journal "No. 8") it was discussed the first stage and the first part of the second stage, so the rest of the issue is completed in this essay.