نشریه مبانی فقهی حقوق اسلامی
پیاپی 2 (پاییز و زمستان 1387)

There are different views on analyzing the nature of imperatives. Thecreative and expressive views each seek to explain the nature and functionof imperatives relying on certain points. presenting the generally receiveddefinition, the present article studies the major challenges facing thistheory.Surveying different prevailing foundations on this issue and raisingvarious interpretations concerning the creative of expressive nature ofimperatives, the article seeks to raise a hybrid view.

The Shiite idea concerning the succession of the people of variousreligions is that not only Muslims inherit non-Muslims, but they canexclude them from inheritance. This rule applies although the estateleaveris non-Muslim, or the relation of non-Muslim heirs to him is closerthan Muslim ones.This rule rests on Muslim consensus and certain traditions. Arguingagainst the above-mentioned proofs by showing inconsistency of theabove rule with the spirit of Islam and the generally received foundationsof the Quran and traditions, the present article casts doubt on the rulereferred to. It also proves there should not be any exclusion of non-Muslim heirs by Muslim ones in case the estate-leaver is non-Muslim, orthe relation of no-Muslim heirs to the estate-leaver is the same as or closerthan that of the Muslim heirs.

According to ImÁmiyya consensus, if a marriage portion set for the wifein a marriage contract and it leads to a separation due to the divorces ofthe spouses before penetration and intercourse, the ex-wife is entitled tohalf of the prescribed marriage portion. Supposing the separation isbecause of the death of the husband, what will happen to the marriageportion? Is the ex-wife entitled to the whole marriage portion determinedin the lifetime of the husband? Or as in the previous case (divorce prior topenetration) the ex-wife is merely entitled to half of the marriage portion?Majority of ImÁmiyya jurisprudents have adopted the first view holdingthat dividing the marriage portion in two halves prior to penetration is aview supported by specific proofs. Extending the same rule to thecircumstances of the death prior to penetration requires further proofs.Therefore, under such circumstances, the ex-wife is entitled to the wholemarriage portion. In contrast, detailed jurisprudential books haveattributed the second view to few jurisprudents including fayd kāshānī.Rereading the issue, authors of the present article have found the secondview supported by certain proofs seeing it more adaptable with the rulesof jurisprudential deduction (ijtihād) after making a comparison betweenthis view and the dominant one.

The proper application of the regulations of contracts depends on theactual knowledge of each of them. Although certain contemporaryjurisprudents have dealt with some aspects of the nature of contracts whilediscussing sale contract, no distinct and sufficient text has been written onImÁmiyya jurisprudence of contracts. The present article seeks to raisesome important considerations presenting outlines of the general methodof knowing the nature of contracts. It deals briefly with distinguishing theontological approach from the conceptual one, distinguishing thedelimiting elements from the causal ones, that of contracts property fromvows property, explanation of causal and effectual attitude to contracts,distinguishing the nature of contracts from their effects, their compoundor simple nature, all of which contribute to finding the essence and natureof contracts. To come to more tangible conclusions, I have delimited thecontracts under discussion to reciprocal ones. I have also studied certaincases of applying these considerations in sale contract with a comparativeapproach

The rules and consequences of temporary marriage are different fromthose of permanent marriage. Marriage portion and duration must bestated in temporary marriage. Failure to state the marriage portion intemporary marriage leads to the nullification of the contract. However,failure to state the duration gives rise to a permanent marriage accordingto some jurisprudents. Others see it as a nullifying factor of the contract.In this type of marriage, the wife is not entitled to maintenance, norinheritance. Majority of jurisprudents hold that it is possible to considermaintenance for the wife according to a proviso within the contract.However, there are different views concerning succession. The dissolutionof temporary marriage is due to various factors including expiration of theterm, dispensing with remaining term, revocation, automatic cancellation,and the death of one of the spouses. Following the dissolution of marriagecontract in case of having had sexual intercourse, the wife is bound toobserve a waiting term. Temporary marriage makes the wife the owner ofthe whole marriage portion enjoying the right to withhold it.If considered parallel with permanent marriage, temporary marriagemay lead to the collapse of the foundations of family or failure to form it.Traditions of the Household of the prophet have recommended thetemporary marriage for specific cases and in certain cases have consideredit an indecent and shameful act. Wasāil al-ShīÝa devotes a chapter entitled"the undesirability of temporary marriage" to this issue considering itundesirable for married men and virgins. The chapter embraces 14traditions considering temporary marriage in case of virgins and marriedmen an indecent and shameful act which causes humiliation of womenand daughters on the one hand, and a matter of promiscuity and laxity formarried men on the other hand.

Fayd kāshānī, the outstanding Muslim scholar, who has written significantworks on jurisprudence and ethics. He defines ethics as the disciplinediscussing various states of the heart including its praiseworthy andblameworthy qualities. He also defines jurisprudence as the discipline ofstudying the quality of legal devotional acts and that of knowing definiteregulations concerning the lawful and forbidden in all businesses andtransactions. Unlike GhazālÐ who counts jurisprudence as a worldlydiscipline, Fayd considers it a divine one next to ethics serving one'shereafter interests. He emphasizes the firm link between these twodisciplines in subject, goal, and the method of perception of teachingsfrom the Quran and the Sunna. Identifying the ethical, spiritual, andmystical secrets or wisdoms of legal regulations, Fayd presents them inhis jurisprudential writings. Thus, ethical approach towards jurisprudentialpropositions is considered one of the most significant qualities of some ofhis jurisprudential works. Fayd holds that jurisprudence gives the fullycapable of religious obligations the perception of act of obedience fromthat of disobedience practicing which would cherish moral virtues andaccess to realities. On the other hand, ethics also helps the fully capable ofreligious obligations with finding the purpose of institution of legalregulations, and with reaching the inward of legal rules after perceivingthe outward