mohammadadel ziaey

Deviating from the apparent meaning of the word and turning to other meanings other than the apparent meaning that the word gives possible meanings is called interpretation. Now the question is whether it is permissible to interpret the texts of the Qur'an and the Sunnah, and if so, what conditions are subject to its permissibility? It seems that despite the theoretical differences of Muslim scholars regarding the permissibility of interpreting Sharia texts, in practice, they all accepted it and interpreted the texts; although there are differences of opinion regarding the amount of use, the conditions of correctness and the reasons that can be cited in the interpretation. For the accuracy of the interpretation, in addition to the competence of the interpreter, the word must be able to be interpreted, the possible meaning of the author must be included in it, and there must be a reason for this interpretation. Since interpretation must be documented for a reason, jurists have disagreed on what matters can be documented as interpretation. Examining the views shows that they agree on the permissibility of interpretation based on the text, consensus and rational argument, but they differ on the permissibility of interpretation based on analogy, expediency, custom and other evidence. One of these controversial arguments is the purposes of Sharia, which refers to the goals that the Sharia had in mind when legislating Sharia rules. Even though most of the jurists of different denominations have not accepted the interpretation based on the purposes of the Sharia due to the fact that the mujtahid does not include the purposes of the Sharia, the ambiguity and differences in the purposes, and the opening of the gate of corrupt interpretations, the proponents of the theory of the purposes have accepted the permissibility of this under certain conditions. Examining the arguments of both sides leads us to the conclusion that if the Sharia intentions are correctly extracted and the conditions of correctness of interpretation are observed, the texts can be interpreted based on the Sharia intentions. Especially when this interpretation leads to preserving the essentials of Khums, i.e. soul, religion, intellect, generation and property. This interpretation can be done in the form of allocating and restricting texts, adolescent due to the expressions of command and prohibition and the like.

In a general view, Shar'i rulings are divided into two categories: devotional (ta‘abbudī) and explanatory (ta‘līlī). The first category, which is also called rulings of non-reasonable meaning, is such that intellect is not able to understand their detailed wisdom and if it is left to the obligee to determine and recognize them, he will fail to understand them. In contrast to this category, there are explanatory or reasonable rulings. Considering that the judgment of all incidents and events is not specified in the texts and the ruling for many of them is left to the ijtihāds of the mujtahids, it is important and necessary to distinguish between the devotional rulings and the explanatory rulings, whose cause can be discovered and understood, because in devotional rulings there is no way for ijtihād, and ijtihād leads to heresy, while in explanatory rulings, the prohibition of ijtihād would lead to the non-compliance of Shari'a with the conditions, and as a result, to improper ijtihād. In order to understand the devotional rulings, such criteria as lack of reasonableness of meaning, lack of appearance of wisdom, constraint, stability, human inability to understand the cause and lack of explanation have been stated. It seems that among these criteria, only the criterion of constraint can be the real criterion for recognizing the devotional rulings. Firstly, other criteria alone are not considered as sufficient; secondly, some of them overlap or refer to a common meaning; and thirdly, they do not include all the referents of devotional rulings.

Although, Islamic jurisprudence scholars agree on the permissibility of divorce in Islam, they adopt different views on what type of Islamic ruling it should be assigned. A close analysis of the scholars’ stances reveals that their lack of consensus on this issue is mostly based on the popular hadith of “ابغض الحلال…” and other related hadiths. These hadiths mostly have issues with their chain of narrators. Moreover, they are paradoxical in nature due to considering divorce both ḥalāl and at the same time a much-hated act. Such a paradox defies logic. Still another point that defies logic and wisdom is to consider the same type of Islamic ruling for a divorce based on whims and a divorce which is well-justified in Islam. Needless to say that the first one lacks any Islamic justification. The present study, which adopts a descriptive-analytical approach, first scrutinizes the narrations related to divorce from both content and their chain of narrators’ points of view, and then concludes that in different situations, different types of Islamic rulings should be considered for divorce and it is too simplistic to consider it as makrũḥ or mubāḥ in all cases without taking their situational conditions into account.

Discussion about liability based on fault and the effect of fault in liability is an important topic in today’s law. However, given that the laws have not explicitly required the establishment of fault in causation, there are different views on what role to assign to the fault in tort judgments. Although damage, liability, causation and fault are favorite topics in fiqh (Islamic law) and extensive discussions are devoted to them, they do not convey an explicit position about the place of causality and they have not addressed the “what we are in”  theoretically and have not given an independent topic to this issue. Thus both in fiqh and in Iranian law, there are serious uncertainties around the essential question whether any causality relation is enough for necessity of compensation or there should be an element of fault so that a ruling for compensation is issued. And if the latter view is accepted, where is the domain of fault? Despite what is sometimes said in fiqh, detailed reviews indicate that there is consensus among jurists that fault has no role in liability caused by direct loss (itlaf), and inflicting loss and causality are enough for liability. Therefore, it can be said that the domain of effect of fault in civil liability is limited to the indirect loss (tasbib). Islamic jurists, however, have conflicting views over indirect loss. Some have not required fault for liability in this category while majority of them, based on rules such as “the culprit is only liable for what he intended” and “there is no warranty in what is not considered harm by custom and even if it entails what is considered harm”, believe that in the event of indirect loss, the loss cannot be attributed to the agent and hence the liability doesn’t apply to him or her unless fault (even if in the objective sense) can be established. This view on indirect loss can be clearly understood  from the writings of jurists such as Gazali, Allama Helli, and Al-Karraki. Thus whenever it is impossible to predict the loss  to be resulted from an act so that rarely does that act lead to loss, that action is not subject to liability even if it leads to loss in the particular case. They believe that there is no evidence in the divine texts upholding that causation alone can bring about liability. Liability is, rather, but that accountability in causation is based on the coincidence of causality, the reasonable attributability of loss to the act, and about the establishment of the agent’s fault. In the Iranian law too due to lack of specification, lawyers have followed the same paths and there are two viewpoints among them. Some believe that in neither of direct and indirect losses, does the element of fault have any role and the realization of the three prongs of harmful action, loss and causation is enough for the compensation. This is while the majority of lawyers believe that the the motion for liability will be granted only when the fault exists in the committed act. In their opinion, the role and effect of fault in liability can be inferred not only from the articles 333 and 335 of the Civil Liability Act enumerating some variations of the indirect loss but from the articles 506 and 537 of the Islamic Penal Code. Hassan Emami supports this theory and believes that whoever damages other peopl’s properties will be liable only when he or she has either neglected the predictable results of his or her actions or has committed the act having thoseresults in mind. Given what was mentioned above, this article suggest that applying only one of the mentioned theories to the vast array of examples some of which are quite complicated and to diverse social and legal relations among humans is not reasonable and that a sound, principled approach would be to consult common usage and to use it as a criterion for proving or disproving the role of fault in liability caused by indirect loss.This study is carried out in an analytical-descriptive library method referencing original sources of fiqh and credible law books, and evaluates different viewpoints and their reasoning,  examining the soundest among them more thoroughly.

Imam Mohammad Ghazali, who is one of the prominent figures of the Shafi‘i school, despite maintaining his adherence to the principles of the Shafi‘i School, disagrees with the head of his school on some fundamental issues. The most important of these are as follows: While Imam Shafi‘i considers the opposite concept as proof, Ghazali believes that it is not a proof and in fact, he believes that it does not make sense. On the subject of abrogation, Ghazali, like most Usulis, believes that it is possible for Qur’an to be abrogated by frequent Sunnah and Sunnah can be abrogated by the Qur'an as well, but Imam Shafi‘i believes that the Qur’an is abrogated by the Qur'an and Sunnah by the Sunnah. Another difference is in the proof of the words of the Companions, thus, according to the old saying of Imam Shafi‘i, the word of the Companions is a proof. Ghazali, on the other hand, does not consider the words of the Companions as a proof. Evaluating their ideas and arguments shows that in the above subjects, the preferred opinion is to consider the opposite concept as proof, the permission of abrogation of the Qur’an with Sunnah and the Sunnah with Qur'an, and the non-proof of the words of the Companions. There are jurisprudential works for each of these fundamental disagreements, which reflected in the views of Imam Shafi‘i and Imam Ghazali.

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 "Al-Kefāyah fi al-Fiqh" is a Persian text on Shāfi'i fiqh (jurisprudence), written by Hoseyn b. Mas'ud Farra’ Baghawi (d. 516 AH), a prominent jurist and commentator of the sixth century AH. In organizing the book into chapters and arranging its various topics, Baghavi has been inspired by similar Arabic texts. Apart from its interesting scholarly aspects, this work is also noteworthy for its inclusion of thousands of rare Persian simple as well as compound words. The author's inclination to use rare and old words and making use of beautiful Persian equivalents for jurisprudential terms, the use of charming and pleasant collocations, lucidity of expression, clarity of words and phrases, the authenticity and solidity of contents, are among the notable features of this book. Thanks to Baghavi's high academic standing and his jurisprudential precision, and due to the old prose style of the book, it has a special place among Persian speakers, especially Shāfi'is. This article is intended to study the stylistic features of the Al-Kifāyah from three viewpoints: linguistic, literary, and content wise.

In narratives quoted by holy prophet (pbuh) and the Imams (pbut), divorce is considered as a hateful subject and those who divorce their wives with no sufficient reasons are seriously criticized. Several narratives in Shiite or Sunnite texts and many other references suggest Imam Hassan (pbuh) as a Mitlaq (The Divorcer) who had gotten married with several women but divorced them consequently without any specific reasons. Such narratives are in conflict not only with the narratives which call him the chief of the youth of Eden, but also with his highly religious rank and adorable piety. A close investigation through Sunni narratives indicates that being Mitlaq has never been mentioned in any of the six main Sunni books and there are only two narratives in this regard in Musnnaf Ibn Abi Shaybah, the narrator of one of which is accused of negligence and hallucination. On the other hand, though there seems to be a rather large number of such narratives among Shia narratives, they can’t be counted on due to their anonymous and weak narrators or the undependability of the documents. Not only are the accounts narrated in history books written with a large temporal distance from the life time of Imam Hassan (pbuh), but also due to discontinuity of the document, narrator’s weakness and other such deficiencies none of them can be relied on. Therefore, it can be concluded that with regard to the accurate narratives regarding commitment of Imam Hassan (pbuh) to religious commands and his avoidance of illegitimacy or even Makruhat on the one hand, and the inaccuracy of the narratives regarding his being Mitlaq on the other, attributing being Mitlaq to Imam Hassan (pbuh) contradicts the reality and, though noted, has no scientific basis.

In Islamic jurisprudence, in addition to the prohibition of appropriation of others’ properties by the guarantor, it is obligatory for him to return the usurped property to its owner - whether he is a usurper or not. But, if returning the usurped property is not possible, the usurper is obliged to give back its substitute to the owner until the usurped property becomes possible to return. This injunction which is known as the intervening substitute (badal ḥeilūla) is approved by Imāmiyya jurists and consequently the Civil Code and some Sunni jurists. Disputes regarding the legitimacy of the intervening substitute and challenges resulting from implementing this injunction, like inclusion of new claims to cases like the claim of the guarantor regarding the appropriations of the one whose property is usurped from the substitute, and consequently lengthening the proceedings and their implementation make the reappraisal of the jurisprudential evidences of this injunction necessary. Investigating these evidences reveals that, firstly, the verbal evidences of this injunction do not have direct relationship to the issue and secondly refer to, at most the necessity of compensating for losses and not how to do so. Nonverbal evidences in proving this injunction, even if we accept them, refer to advisory (irshādī) injunctions not binding (mawlawī) ones. As a result, at least in cases resulting from non-forcible appropriation in order to compensate for the losses of the owner until the real property is returned, in addition to the intervening substitute, other reasonable methods like paying the equivalent remuneration (ujrat al-mithl) of the usurped property to the owner can be utilized which have less challenges and difficulties.

The widespread changes in societies and the diversification of human needs on the
one hand, and the remarkable advances in medical sciences and chemistry, on the other hand, have led to the
use of a large range of people from products whose raw materials have been considered ritually impure in
Islamic jurisprudence, including soaps made including soaps made from pig components.The question now
is whether the changes made to these materials have changed their nature and eliminated their impure?

The present research is based on descriptions and the analysis of the Islamic
jurisprudential propositions and the library method to study the subject under discussion.

In response to this question, the Islamic schools have granted permission to transformation and
therefore permit the use and sale of such soap. On the contrary, others believe that transformation is not
certain or non- transformation is established. So the ritually impure is still left. This group is divided into two
categories, some of which do not allow the use of these types of products, but others, despite the impure of
use of these products, are entitled to use them for the needs of the people and in order to obviate the distress
and constriction. It seems that among the existing narrative, the transformation and, consequently, the use
and sale of products made from pig components, is more powerful than the existing ones.

some of the current jurisconsults of Shia have considered an absolute authentication for it.believe that the narrations stating the forbiddance of giving gifts are weak and cannot be cited; thus, giving gifts to judges is considered solely as giving a gift. On the contrary, most Maliki jurisconsults believe it to be ultimately forbidden, so that corruption is avoided. Some other such as Abu-Hanifeh his apprentices believed it to be abominated, in their perspective, preventions stated in provisions express abomination, not forbiddance. On the side of such opinions, most leading Shiite jurisconsults, nearly all of the Shafi’i and Hanbali jurisconsults, some of Hanifa and some of Maliki’s jurisconsults have considered conditions and they believe that giving gifts to judges in different conditions have various verdicts. It seems that this opinion is superior, and the measure of conditions include the intention of the gift giver and the intention of the judge, the existence of former relationship between the judge and the gift giver, the existence of the gift giver’s case with the judge, the existence of former history of giving gifts to the judge by the gift giver, and the amount of the gift paid to the judge before and after judgeshiptenure.

Determination of the subject of marriage contract is one of most important discussions in juristic prescriptions for marriage in Islamic law. However, Islamic jurists and scholars did not mention it as an independent title in law and jurisprudence. These issues are often discussed under some other decrees like Marriage Portion, Oath, Wife’s Disobedience and Spouses’ Marital Relations. There are five juristic comments about the subject of marriage contract: The majority of Hanafi jurists and a group of Hanbalis and Shi‘as consider Taking Advantage of Woman’s Body as the subject of marriage contract. The majority of Hanbalis and Shafi‘is believe that the subject is The Permissibility of Enjoyment from each other for each one of the spouses. Some of Hanafi jurists and a group of Malikis and Shafi‘is had named the wife herself as the subject of the contract; And majority of them believe that both husband and wife should be considered as the subject of marriage contract. Finally, the majority of jurists and interpreters consider Taking Advantage of Woman’s Body, The Woman’s Body, and The Permissibility of Enjoyment as the subject of marriage contract. Each one of the mention five groups of scholars have invoked to some logical and juridical reasons for their rune. After a logical and scientific evaluation of all of these reasons, we can say: “the prescription that has mentioned the “Permissibility of Enjoyment” for both husband and wife as the “subject of marriage contract” is nearer to fact. Because, firstly the enjoyment is mutual right for spouses and if the wife had no right for enjoyment, it would not be necessary for men to ask for permission for ‘Azl (having an imperfect sexual course). Secondly, acceptance of other viewpoints can have some effects which are not often matched with Islamic law and even they will not provide the basis for an Islamic safe family. From the other side, acceptance of this view requires two important rights for each one of the spouses. The husband has the right for cancellation of the marriage contract in cases in which the wife has some basic problems. On the other hand, the wife can request her wage for house works or breastfeeding a baby.

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.

One of important subjects in validity of marriage is existence of witness in marriage ceremony. While jurisconsults of all sects believe that existence of witness is necessary for marriage and its successive orders in jurisprudence and legal traces of due from them such as dowry, alimony and … but for validity of marriage there are different ideas. Imamiyah Jurisconsults with refereeing to Holy Book say there is no subject about conditions of witness for marriage in Qur’an, and about some Hadith that speak about validity of marriage without witness, declare that marriage without witness is valid and they believe those Hadith which is about existence of witness have weak sources and at least theses Hadith declare existence of witness is Mostahab. On the contrary Soni jurisconsults (Hanfiyah, Shafe’iyah and Hanabalah) believe that marriage without witness wouldn’t conclude, because those Hadith that declare about necessity of witness in marriage, firstly are Sahih and famous and secondly they haven’t opposition with Qur’an’s verses because verses in this case are silent. Therefore we couldn’t rely on these verses because they don’t speak about this point. Malekiyah also took the middle way. They believe that the aim for existence of witness is because to alert the marriage and base on Prophet Mohammad’s (PUH) declaration secrecy marriage is invalid. So if witnesses hide the marriage contract then marriage is invalid and if there aren’t witnesses in marriage ceremony but after they came out alert they marriage that marriage is correct.

About the question that did the prophet (peace be upon him) before the mission worship to God or not? and if yes, based on what Sharia he was praying? have been proposed three viewpoint: 1-Based on a theory that is attributed to Fakhr al-Razi, a group of Shafeis, Abu Hussein Basri and his followers, prophet Muhammad (peace be upon him) before mission did not worship to God and did not followed any Sharia; this group to prove its claim have argued some verses and consider the performance of worship by prophet Muhammad (peace be upon him) before mission according to habit. 2-Most believe that the prophet (peace be upon him) before being raised to the prophet, has worshiped the God. followers of this theory has been disputed in the sharia; some consider him following previous sharias -the unknown or a group of prophets or one of the prophets-. most Ahnaf, Hanbalis and some Malikis and Shafeis believed that the prophet (peace be upon him) has worshiped before the mission based on previous Sharias; as Imam Shafi'i, Abu Mansur Matoridi, Abo Isaac Isfaraini, Judge Abuyala and Shawkany are on this view. verses and rational arguments are the basic argument of this group. In contrast, based on the theory of most Malikis, most theologians and Ash'arites and most Mu'tazilite prophet Muhammad (peace be upon him) before the mission worshiped to God according to his own sharia. as Imam Malik, Abu Ghazi Baqlani, Abu Hussein Basri, Fakhr al-Razi, Ibn Abedin, Tuosy and Majlesi believe. they have argued to the Hadith and rational arguments. 3-Some, like al-Ghazali, Amedi, Syed Morteza, Sobky, Nawavi and Gweyni are attributed to stop in worship or not worship of the prophet (peace be upon him) before the mission. according to this theory: in principle, is no events and also the teasons of tow  previous groups are incompatible and no one is over the other.    By analyzing the reasons, it can be said: the prophet (peace be upon him) before the mission has worshiped to God. but about the determination of sharia before the mission, since the essence of divine Sharias is one and all the prophets, are a series of connected loops, he has worshiped according to the Sharias of his earlier prophets as unknown.