محمدتقی فخلعی

Criminal laws (aḥkām-i jazāʾī) constitute a part of the body of Islamic Sharīʿa. In the modern world, some claim that some of these rulings, such as the execution of apostates, harsh punishment methods, lūth and qasāma, retaliation punishment (qiṣāṣ) against the mother, etc. go against ethical criteria. Three main approaches can be identified regarding this issue: defensive and justificatory, critical and reformist, and ethical/rationalist. The first group entirely denies the existence of any challenges and considers religious rulings to align with religious ethics. The second group acknowledges the existence of the challenge and seeks reform regarding the issue. The rational approach, however, emphasizes the necessity for sharīʿa to align with ethical norms and propositions. Therefore, the third group supports fundamental changes to the foundations of criminal laws. The present essay employs a critical-analytical approach and seeks to offer practical solutions to resolve the discrepancy between criminal laws and ethical standards, aiming to make them more socially acceptable. The authors contend that when a criminal law goes against collective reason and conscience, ethical proposition should take precedence. Therefore, it is necessary to Review some of the criminal rulings in light of ethical and rational principles.

Jurisprudential thematology is one of the most wide-ranging areas of jurisprudential disagreement. This discrepancy has emerged in various ways and in various situations, including the problem of dissolution of transactional issues. This article, based on the descriptive-analytical and exploratory method, presents a picture of the widening disagreement and also explores the causes of the disagreement. Despite the fact that the customary nature of the matter is a maximum agreed subject, but the views in identifying how to arbitrate the custom have been varied and this difference has led to the failure of precise definition of the issue and this difference has led to the inference of the verdict in the next step. In the meantime, the approach to the subject through the ways of the text has not been overlooked by some. The result of the research is that the kind of views of the jurists and the way they deal with textual documents on the one hand and the unregulated effort in discovering the common position in interpreting transactional issues on the other hand has led to inevitable problems in the field of thematology and in this way identifying the areas of disagreement and its origin of disagreement and increasing delay in the thematology criteria helps to reduce the volume of differences and achieve common results.

Weakening the religion, which means a ruling or behaviour that makes religion look weak and frivolous in the eyes of society’s custom, is one of the titles that after the Islamic revolution was first seriously considered and cited in Imam Khumaynī’s fatwās. Then, in many issues, it is the basis and proof of contemporary fatwās, so that the prohibition of weakening the religion can be mentioned as a principle of jurisprudence. Weakening religion as a secondary has the capacity of planning in the form of a jurisprudential principle. However, not paying attention to the challenging effects of referring to weakening the religion in the process of jurisprudential inference has caused the use of weakening the religion in the process of jurisprudential inference to be accompanied by doubts. Using the descriptive and analytical method, this study aims to correctly explain challenges such as the incompatibility of the principle of weakening the religion with the principle of stability of rulings, or the contradiction of the necessity of firmness in the implementation of religious rules by applying the rule of weakening the religion, and also by the allocation of the majority of the results of the implementation of weakening the religion. With a scientific expression, it proved the non-contradiction of weakening the religion with the mentioned cases.

The difference in the views of the jurists in recognizing the religious ruling is one of the most important areas of disagreement. This diversity of theories has emerged in the recognizing jurisprudential subjects in different positions, including the issue of absence. The viewpoints of the jurists through some brokerage analysis, adoption of foundations in the evaluation of textual documents and differences in role identification and custom arbitration, as well as accepting or not accepting the position of verbal viewpoints, have led to not reaching a precise definition of the subject and, in the next stage, to a disagreement in deriving the religious ruling. Based on the descriptive, analytical and exploratory method, this article has analyzed the arguments for the difference of the jurists’ viewpoints on absence. The finding suggests that the field of subjectology or the ruling does not have a desirable achievement and the role of some jurists must be rethought, and in this regard, the correct identification of the criteria for understanding the subject is effective in reducing the disagreements and achieving the same results.

The weakening (wahn) of religion is one of the topics that are found in many basic issues and evidence of contemporary fatwās so the prohibition of weakening (wahn) the religion can be mentioned as a principle of jurisprudence. However due to the lack of theoretical discussions, the dimensions of this principle have not been properly explained, the criteria of weakening have not been determined, and there are ambiguities in this principle. This has caused the necessary conditions for the disciplined use of weakening the religion not to be provided in the process of jurisprudential inference, or the anxiety and worry to appear in the text of some fatwās. The lack of a detailed explanation of the meaning of weakness, the lack of explanation of the difference between this term and similar terms, and the lack of the typology of weakness in the religious decree (ḥukm al-sharʻī) has caused the reference to weakness in most fatwās to be limited to mourning rituals. This study aims to provide clear ideas in the field of regulation of weakness, the effect of weakness as primary and secondary, the reference for diagnosing weakness, and others, in order to make the path of reference to weakness a little smoother and reduce the concerns caused by the unregulated use of weakness.

If the nature of resignation from office is well explained and if the conditions for its realization are extracted in the form of specific and inclusive rules in relation to various posts, it will have different effects than dismissal from office. In this research, with a descriptive and analytical method, after explaining the nature of resignation from office, three conditions for the conclusion of an appointment, the existence of primary competency in the person in charge and its termination during the tenure were extracted as the conditions for the realization of automatic dismissal from the office which can be proved through the proofs of confession, testimony of righteous persons, isolated tradition (khabar al-wāḥid). After confirmation and proof of resignation from office by a competent institution such as a court, the decree issued as per resignation from office has a declaratory nature and the statutory effects of non-contractual obligation and invalidation of legal actions and mandatory effects of the prohibition of continuation of tenure and punishment in case of summation of the elements from the time of realization of resignation from office will ensue and be prosecutable.

Based on the propounded consensus, the authority of determining a judge has been given to the claimant, but on the other hand, in addition to not implementing this view in the current judicial system, some other jurists have given this importance authority to the ruler and the government. Now, the question that the current study has addressed is the analysis of the issue of the authority of determining a judge, in the sense that as a Ḥukm Awwalī and Thānawī (primary and secondary ruling) and also in the current judicial system, Is the claimant responsible for determining the judge or the government? In a research that was carried out by a library and analytical method, the widely known viewpoint has been explained along with three reasons. But due to the deficiency in these reasons and the existence of stronger reasons against it such as verses of the Holy Qurʼān and traditions, the Ḥukm Awwalī and Thānawī has been given the responsibility of the authority of determining a judge to the government, while various justifications have also been explained for the opinion of those who claim this authority to the claimant.

By studying the historical evolvement of criminal laws, it becomes evident that different societies implement a rather extreme penal system to prevent crime and defend the values governing over society; of which the most recent systemic implementations strives towards by the use of preventive programs and approaches. Preventive measures to pre-empt crime is of great importance in criminal policy due to having a non-violent and an obstructive nature towards punishments, and while serving as a strategy to deal with crime, it is also considered a valued ideology and approach; hence it has been  the subject of various studies from both a theoretical and a practical perspective. Furthermore, an understanding of Islam’s criminal policy based on the viewpoint of Imam Ali (as) is crucial; therefore, with a thorough examination of this matter, the current research concludes that crime prevention policies are based on a series of priniciples from Imam Ali’s point of view. These principles include: the importance and necessity of crime prevention, methods’ legitimacy, observance of justice and respect for human dignity. In addition to emphasizing the significance of these principles in preventive measures, Imam Ali (as) has also provided solutions for social and situational prevention of crime of which its most notable constituents are: tackling ignorance, striving toward promotion of moral virtues, taking necessary measures to meet human needs, respecting citizen’s rights, monitoring the performance of government officials, improving social correspondences and enjoining good and forbidding evil.

The obligation of Ḥajj for the oblige is conditioned not only by fulfilling the general conditions of the duty and having the power to travel the path, but also by affording the trip expenses and to support the family until the return. Sometimes a person finds an unstable ownership of the amount of money that is sufficient to perform Ḥajj, which is subject to deterioration. In this regard, it is important to decide whether such a person is eligible for the title of Mustaṭīʿ (capable) or whether unstable property is an obstacle to achieving financial affordability?Different perspectives are discussed regarding this issue. After analyzing and examining the evidence and opinions of the jurists by applying a descriptive-analytical method, the study concluded that the criterion for the realization of financial ability is the presence of two elements: the owner's permission to occupy and the knowledge of the non-destruction of his ownership. Based on this, in cases of unstable property where these two elements are present, the title of financial affordability and the obligation of Ḥajj are fulfilled, and in cases where one of these two elements or both are missing, affordability is not achieved.

The way in which kur and qalil water become impure has a significant impact on human daily life. There are various and conflicting narrations regarding this matter. Two methods have been proposed to resolve the conflicts and reach a final ruling in this regard. According to the well-known method of assessing conflicting evidence, five different and sometimes conflicting rulings have been obtained on the issue mentioned, and the conflict between the extracted rulings is a problem for this group of jurists. However, according to the theory of proportional revolution, there are more than ten different types of probability assessments between the evidence, each of which leads to different results. Therefore, the problem with this method is the preference of one of the proportional assessments over the others. However, it is possible to overcome this problem by using the rules extracted for the preference of different proportional assessments, and the result of accepting the theory of proportional revolution has been well demonstrated in the branch of jurisprudence discussed. Therefore, in the present study, by analyzing and comparing three proposed models in one of the jurisprudential branches entitled the impurity of kur and qalil water, we have demonstrated the differences between the mentioned methods and for the first time systematically aligned it with the theory of proportional revolution and revealed the surprising results of this type of assessment between conflicting evidence. The impurity of qalil water in case of changing one of the three attributes and the lack of impurity of kur water, except in the case of changing the title of water, are among the results of this method.

Menstruation is one of the issues that women encounter when they travel to Mecca to undertake ‘Umra al-Tamattu. The emergence of various and contradictory narratives is a challenge for jurists in resolving this issue. There are two ways to settle the dispute between the narratives and come to a decision in this case: the well-known method is based on the pairwise weighing of opposing arguments. Under this premise, six distinct and occasionally at odds rulings are obtained regarding the relevant issue, and the method used by this group of jurists has a problem with the conflict of the extracted rulings. The second method, the ratio revolution technique, provides more than 10 different measurement possibilities between the reasons, each of which produces a different set of outcomes. The causeless priority of each ratio is the method’s flaw. However, it appears that this issue can be resolved by examining and matching the two models put forth in the aforementioned jurisprudential sub-principle and by extracting some regulations regarding the way of prioritizing of different ratio metric. The results of accepting the ratio revolution theory in the aforementioned jurisprudential sub-principle can be clearly seen.

Using the descriptive analytical method, the present article investigates the jurisprudential role of bribery in the realization of the crime of rent-seeking. According to the definition of bribery and the truth of its application in cases other than rulings and judgments, what a rent-seeker grants another in order to enjoy a series of privileges that he does not deserve is considered bribery and according to the consensus of jurists, it is haram. By following the words of jurists, it becomes clear that the truthfulness of bribery is valid not only for money, but also for word and deed;As a result, whatever the rent-seeking person does to the official in order to benefit from special privileges is a bribe. The person making the rent, who is the "Mortashi" (bribe receiver), is also required to return the bribe money and is a guarantor in this regard. The way to get rid of it is to return the property to the owner.

Knowing the history of issues and theories which is proposed in sciences is very important. The present study has examined and investigated the history of the theory of inqilāb-e nisbat as an uṣūlī theory. By referring to the written fiqhī and uṣūlī sources from the earlier scholars to the era of Mullā Aḥmad Narāqī, who is known as the innovator of the theory of inqilāb-e nisbat, and analyzing some fiqhī fatwās, the way of reasoning, and criticizing the proposed views about that fiqhī branch, this result has been achieved that, based on some jurists such as Shaykh al-Ṭūsī, Muḥaqqiq al-Ḥillī, ʻAllāmah al-Ḥillī, Fakhr al-Muḥaqiqqīn, Muqaddas al-Ardabīlī, Muḥaqqiq Sabzawārī and others, the method of study and resolving conflicting evidence in cases where there are more than two evidences surrounding the conflict, is the same method titled to inqilāb-e nisbat. Therefore, although according to the confession of uṣūlī scholars, this theory is attributed to Mullā Aḥmad Narāqī, which it was clearly explained and refined by him for the first time, the roots of this method can be found in the words of the predecessor scholars of fiqh and uṣūl and, sporadically, in some fiqhī branches. Thus, this theory can be considered as a theory that has a relatively suitable and strong support among scholars of fiqh and uṣūl.

The theory of Inqilāb-e Nisbat (Changing the Relationship) as one of the most effective theories proposed in the discussion of the conflict between the evidence of ‘ilm al-uṣūl (the science of the principles of jurisprudence) has been the focus of the uṣūlīyīn. Considering the academic status of Āyatollāh ‘Abd al-Karīm Ḥāʼirī- Yazdī as the founder of the Islamic Seminary of Qom and the need to pay more attention to his views, by examining and analyzing Āyatollāh ‘Abd al-Karīm Ḥāʼirī- Yazdī’s Durar al-Fawāʼid on Inqilāb-e Nisbat, the present article analyzes and criticizes his views on the theory of Inqilāb-e Nisbat. The findings of the research show that, although he has discussed this theory very briefly, he has discussed various aspects of this theory such as: explaining the theory, expressing his points of view, the main problems of the theory, stating some rules for solving the problems, paying attention to the effective foundations in accepting or denying the theory, and its place in jurisprudential inference. However, his views on the theory of Inqilāb-e Nisbat and some of the points raised about this theory are incomplete and flawed.

Multiplex consensus is one of the reasons that is widely used in fiqh and usul-i fiqh. In this kind of consensus that is employed - after its definition - for negation of the opinions about a question, the argument is based on the existence of two or more viewpoints about the same question. Multiplex consensus, while being prevalent, none of its bases and rules have been properly discussed and its roots and evolutions have not yet been studied. This type of consensus that takes different forms like third viewpoint rejection and lack of dissociation viewpoint, in spite of its definition, is mostly used to generalize the rules and not to negate them. The topics of this discussion have been born and flourished in Sunni usul-i fiqh books particularly the books written in theologians’ tradition and from the fourth century onwards, it has been used in fiqh and usul-i fiqh. Shi’ites also have integrated this question with special Shi’ite viewpoint in usul-i fiqh books and used it in fiqh and usul-i fiqh arguments.

Recognizing criteria of aham in tazahom chapter is one of the valuable topics that have not been accurately identified and verified so far. In this article, attention has been paid to one of the criteria of preference in the recognition of aham, the origin and source of which is the consideration and assertions of the holy law; That is, the priorities of those who use Sharia'h texts from the perspective of preference. In a descriptive and analytical research, after stating the proof of the rule of aham and mohem( the matter which is important) the priority of determination over takheer (adopting either one) in possible mohem, the method of reconciling some conflicting traditions in determining the mohem is mentioned, and finally in the conflict between some of the rulings according to the verses and traditions showing preference as a definite or possible morajah (prioritizing reasons) of aham, the position of concrete and practical criteria such as strengthening the foundations of religion, paying attention to the quality of the motezahem (conflicting reason), confronting of the rights and getting rid of the corrupt when in doubt have been identified. Despite this, it is clear that in order to determine the definite or possible aham, the mind must observe all the criteria and their kasr and enkesars, and by considering the condition of tazahom, reach the definite or probable aham.

In the present study, the practical approach of Islamic jurists to the narration: “a man who had sold a free man was brought to Amir al-Mu'minin and he cut off his hand”, has been examined from both aspects of criminalization and punishment of crime through a descriptive-analytical method. As far as the nature of crime and punishment mentioned in the above said narration are concerned, the earlier jurists have proposed theft with hand cut off or Taazir as its punishment, corruption on earth with hand cut off as its punishment, absolute corruption with hand cut off or Taazir as its punishment.  The later jurists have considered this crime as kidnap with undetermined punishment. Nevertheless, the text of the above said narration has declared the crime as selling a free man with hand cut off as its punishment. This crime may be considered as trade of human beings with cut off as its punishment; since it leads to the revival of slavery, denies the will and restricts the choice and requires a strong deterrent such as cut off and ease of execution, so that it is realized without the need that the conditions for theft of property are met.

Transformation of relation as a discussed problem under the title of contradiction of arguments in usul al-fiqh, is a way to apply the rules of contradiction of arguments, when there are more than two contrary arguments. According to this way, all relations and connections between arguments are seen and based on specific criteria, rules of contradictions are applied. This article, through description and analyzing of usuli written texts tries to answer if transformation of relation can be recognized as a scientific theory and presented to academic forums. The hypothesis is that this way of solving contradiction can be introduced as the theory of transformation of relation to ‘ilm al-usul. To reach to the mentioned goal and to prove the theory of the article (being an usuli theory), the proposed definitions for a scientific theory, focusing on fiqhi and usuli theories, were analyzed; accepted characteristics of scientific theories were derived and analyzed; and lastly, the essential qualities of transformation of relation were applied on the definitions. The conclusion was that the transformation of relation could be presented as a scientific theory in usul al-fiqh to academic forums. So to explain it there need to see it as a theory with its all details and aspects not just a viewpoint.

Although jurisprudential issues in the field of transactions are areas of pursuit of rational intentions at the level of livelihood and in order to provide individual and social financial benefits, at first glance it is thought that everything is a function of human commercial interests and only the limitation of legal propositions Chapter is the principle of balance in exchanges, but with a deep look at the subject, a wide range of jurisprudence and ethics can be found in this area.The present research intends to be descriptive-analytical method, and has been collected using library and Internet resources. By pondering on the moral principles and rules of jurisprudence, transactions will find various types of moral influence in jurisprudence and identify and categorize a set of rules of transactions that have a moral aspect, and through this, provide a delicate picture of the legal propositions of jurisprudence. And remove the suspicion of the contradiction between jurisprudence and ethics.

The present article follows the mandatory and status rule of rent-seeking by descriptive-analytical method and with reference to the no-harm (la zarar) rule. The no-harm rule which is one of the indisputable rules of jurisprudence, is the reason for proving the sanctity of rent-seeking in cases that lead to the violation of the rights of others. At the same time, due to application of the no-harm rule in non-existence, as well as the denunciation of criterion (tanghih e manat) and reliance on the wise's procedure (bana e oghala) in arguing through the no-harm rule , since the rent-seeker has deprived others of their entitlement he is obliged to compensate and guarantee the damages he has inflicted on them. Of course, in some cases of political and information rent that no rights are violated, rent-seeking cannot be considered haram based on this rule.

Execution of religious precepts and managing the important and public affairs is among the duties of the sharia ruler or the highly qualified religious jurist and the arbitrary action as to these affairs by members of society without the authorization of sharia ruler is not acceptable. There are precepts in the Islamic jurisprudence including prescribed punishments whose execution by ordinary people, at first sight, appears to be permitted while if they fall within the competence of the public, this leads to chaos in the society and is, apparently, against public order. The present paper, through case studies on a number of such precepts, seeks to answer the question whether assigning them to the public contradicts the public order or not. The conclusion is that such precepts were issued at a time when the Islamic state was not established and the individual jurisprudence prevailed and private interests were preferred over public interests. However, in situations the righteous Islamic state is established and the social and political jurisprudence prevails, the precepts of the governmental jurisprudence are given priority over the above said precepts. Some precepts which contradict the public order and have been issued due to necessity are restricted to exigent circumstances.  Proving the point that whenever the great jurists have mentioned order they have intended public order is also an achievement of this research which has been performed using library tools and through descriptive-analytical method.

The present article is investigated Imam Ali's letter to Malek Ashtar. One part of the article is used Imam Ali's words to explain shariah's purposes. Islamic law has great goals and purposes, for example, slavery, justice, security, and kindness are the most important shariah purposes that are mentioned in 53rd Imam Ali's letter. the other topic of the article is the function of shariah purposes in political jurisprudence, One of its most important functions is its role in the interpretation and understanding of the Qur'an and Hadith. In this article, as a new study, we show how this function can be used. , we analyzed the issue of the laws of war and peace and relations between Muslims and non-Muslims from the perspective of the goals of religion with the emphasis on that letter. The result of the study is the choice of peace as the chosen principle achieving the goals of religion.

Hypnosis is a multidimensional reality whose clinical psychological dimension, namely hypnotherapy and hypnoanalysis, has received more attention and the mind control and deprivation of the subject has been neglected and even denied. The introduction of Islamic jurisprudence and law in this field and the study of the nature of hypnosis and its effect in formation of criminal acts and how to punish such acts is an essential need. Accordingly, the present study has been written with the aim of analyzing the legal jurisprudential dimensions of the role of hypnosis or in other words, hypnotic trance in committing criminal acts and how to punish them in such crimes.

This descriptive-analytical resrarch uses the library method and fishing tools and tries to analyze the nature of hypnosis and its effect in formation of criminal acts and how to punish them, as well as some important examples of hypnotic crimes such as theft, murder and rape through hypnosis.

The findings suggest that degrees four or higher in hypnotic trance in which unrealistic indoctrination is possible, if they have a non-therapeutic (criminal) function, correspond to the components of magic. The three major types of hypnotic crimes are hypnotic murder, hypnotic rape, and stealing people's property through hypnosis. In all these cases, if the subject is involuntary, the crime will not be documented to him and the hypnotist will be responsible and punished, but if the subject presents himself to the hypnotist with the intention of committing the crime in a trance state, he will be criminally liable and punished. If the subject is the victim or the victim of a hypnotic crime, the hypnotist is considered the perpetrator.