فصلنامه جستارهای فقهی و اصولی
سال ششم شماره 4 (پیاپی 21، زمستان 1399)

The fact that the generalities and absolutes of the Quran and Sunnah are the primary sources in inferencing jurisprudential matters is a unanimously agreed-upon principle among jurists. However, resorting to generalities and absolutes in addressing the newly emerged issues faces some challenges, as they have been used in the early days of Islam when today’s topics were either very different or never existed at all. Therefore, as there is no agreement on whether those words that have been articulated in proportionate to the conventions of that time are inclusive of today’s problems or not, and taking into account the fact that their inclusiveness concerning contemporary examples has, in some cases, even been denied, the issue needs to be studied methodicallyaccording to Fiqh and Usul. This article, thus, set out to examine the challenges and obstacles of using generalities and absolutes for resolving new issues. Providing and analyzing fourteen examples of the existing or discussible obstacles in making use of legal generalities and absolutes is the achievement of this study. Keywords: Generalities, Absolutes, New Issues, Absoluteness, Generality, Obstacles of inclusiveness.

In Usul al-Fiqh (principle of Jurisprudence), it is well known that arguments and proofs are classified by jurists into conclusive and non-conclusive. Quran generalitiesare considered by Muslims as being conclusive in terms of its chain of transmission. However, their implications have long been widely disputed by Muslim scholars and jurists. While contemporary Shiite jurists have taken the Quranic generalities as non-conclusive and thus have not discussed it much, the Sunni jurists have addressed this issue in several books. According to most Sunni and Shiite jurists, the generalities of the Quran are considered valid presumptions. Contrary to this view, some Shiite Ulama such as Sheikh Mufid, Sayyid al-Murtaza, Sheikh Tousi, and some contemporary jurists on the one hand, and some Sunni jurists such as Shatibi, Ibn Taymiyyah, and most of Hanafi jurists and Mu'tazila on the other hand, argue that implications of the generalities are conclusive. As found through induction, there are three reasons for the conclusiveness of the generalities' implications:1) the impermissibility of delay in the exposition from the time of speech; 2) conclusiveness of the used implications; and 3) the implication of the intended subject. This study sought to elaborate on the topic through the comparative analysis of the views expressed by Shiite and Sunni jurists in this regard. It appears that the views concerning the conclusiveness of the generalities' implications are strongly backed by reason and all the three reasons presented are defendable and justified. According to those reasons, disconnected particularizersare contrary to the Arabic Language's rhetoric because based on Arabic Language's grammar, the speaker could not intend to convey a meaning opposite to what is signified by a word. Therefore, deviation from this principle may result in ignorance, deception, an obligation to the impossible and, the uselessness of speech. Keywords: Implication, Generalities, Conclusiveness, delay the exposition, Used implications, Signification, Arabic Language and literature.

Regarding the interactions with religious minorities, one of the criticisms of the Islamic jurisprudence that sometimes comes out by some non-Muslims researchers, especially western ones, is that fiqh has been looked down on them and considered them to be devoid of human dignity, so fiqh function toward Ahl al-Dhimma (people under protection) is humiliating. In support of their claims, they referred to jizya (tributary tax) issue. They claim that based on the analysis and evaluations of Islamic jurists, both Islamic legislation and the way that fiqh addressed the jizya was for humiliating the Ahl al-Dhimma. Some have said that jizya is the same as blackmail which were taken from defeated nations by the conquerors as coercion and character assassination. This action is also degrading and humiliating. Some others have considered the humiliating of Ahl al-Dhimma in order to attract them to Islam. This saying has led to other criticism. Having answered to these doubts, this study sought to indicate the rational and logical image of jizya and explain this fact that payment of jizya is just for the services and supports that the Islamic government provides for the Ahl al-Dhimma without any criticism. Key Words:  Jizya (tributary tax)  Ahl al-Dhimma (people under protection), Ahl al-Kitab (People of the Book), Infidel, Religious Minorities.

Nowadays, official documents are considered as one of the most important proofs that are accepted by administrative and legal systems of the world. But in some cases, there are some other signs against official documents such as testimony of witnesses which conflict with the document’s contents. Now, the question is, which of these two –official documents or testimonial evidence- must be given priority in the judgment. Article 1309 of the Iranian Civil Code has explicitly mentioned the submitting of official document. Although this article has been considered contrary to Islamic law by jurists of the guardian council, it still is in the text of the law and can be enforceable. This issue led to different judicial procedures in the same cases. Therefore, it is necessary to review and analyze the basics of each of these two viewpoints and to provide practical procedures for preferring either official document or testimonial evidence. The finding of this study is that, due to the incompatibility article 1309 with fiqh principles and viewpoints of the guardian council jurists, the said article must be corrected. Key Words: Official Document, Testimonial Evidence, Conflict, Fiqh, Iranian Law, Assurance and knowing, Article 1309 of the Civil Code

In Islamic and Iranian legal systems, divorce in cases where the husband is dying of an illness is distinct from other forms of divorce. Article "944" of the Iranian Civil Code stipulates that the wife could take inheritance from his dead husband within a year of her husband's death in cases where she has been divorced by her ill husband before his death, provided that she has not taken another husband and that her husband has died of the same disease. The references for this judgment are some seemingly contradictory and conflicting hadiths whose authenticity and the unification method needs to be investigated jurisprudentially.  The article makes no difference between different kinds of divorce, and the wife is absolutely worthy of the inheritance. However, the Shiite jurists (Faqihs) have different judgments regarding the wife's inheritance in irrevocable divorce. Supporting the wife is said to be the wisdom behind the judgment mentioned above. Nonetheless, it raises this question whether such potentially deadly situations as snakebite, accident and those cases where the person is sentenced to blood-vengeance could be annexed to the judgment regarding the inheritance of wife in a divorce of the dying patient? Moreover, as the Islamic jurists differ in opinion concerning whether the judgment could exclusively be assigned to the wife or not, the issue needs to be carefully examined. Referring to the Shiite jurists' fatwas and comments regarding the judgment, the researchers of this study seek to resolve the ambiguities in the article, arguing that the death of the patient in less than a year of the same disease, and the fact that the illness led to the death are the primary requisites for the inheritance of the wife from her dead husband, provided that she has not remarried.  This is an exceptional judgment specific to the divorce of the dying male patient and could be extended to the divorce of the dying female patient, i.e., The husband does not take inheritance from his ill wife. According to some hadiths, the inflication of harm stipulation has no particularity; therefore, the wife takes inheritance from her sick husband in all types of divorce, including the revocable and irrevocable divorce, the divorce by mutual agreement, and the divorce at the wife's instigation. Furthermore, the hadiths narrated in this regard are specific to the divorce of a dying male patient and do not include potentially deadly situations and conditions. Keywords: Patient, Wife, Inheritance, Revocable Divorce, Irrevocable Divorce, Dying Patient.

Belief in the individuality of personality-related rights makes the right of enjoyment personal and the transfer of that right impossible. However, revering the sanctity of the dead is so significant in Islamic Jurisprudence that many spiritual rights, including the right of the penalty for the false accusation of fornication are, in proportionate to its relationship with one's personality, transferable, whether the person in question is alive or dead, and would be inherited to his/her heirs. Therefore, this study sought to investigate posthumous spiritual rights, with emphasis on the dead's right over the penalty for false accusation of fornication. The punishment for the dead's false accusation of fornication is proven through the Four Proofs and the general arguments concerning the reverence of one's sanctity, and should its relevant conditions be met, its penalty, i.e., eighty lashes, would be executed. According to Shiite Jurisprudence, the death of a person would not deprive him/her of their spiritual rights, and in some cases, the judgment for disrespecting such rights of the dead would be the same as that of the person who is alive, and sometimes even more severe. Moreover, the views of those jurists who argue that men's dignity would not be destroyed by death and that the dead could still enjoy some spiritual rights are also confirmed.

One of the conditions for concluding contracts in Shia jurisprudence and Iranian law, like other legal systems, is the necessity of coincidence between offer and acceptance. The non-conformity of these two wills, as to the subject or the main conditions of each contract, is a cause of invalidity. "Mistake" is not only the most important cause but also the only cause of mismatch between offer and acceptance. In spite of this and importance of both issues that is "Coincidence between offer and acceptance" and "mistake, so far we do not have independent and serious discussions about the relationship between them, neither in jurisprudence nor in the law and in general rules of contracts. This research, relying on the precise explanation of these two issues and exploring them in different legal angles and with the aim of providing a new explanation of these concepts, emphasizes that »mistake is not only one of the most important defects of will, but also only vice of agreement and only cause of mismatch of two wills (offer and acceptance) in Iranian law«. This new and different explanation of mistake as a »Vice of Agreement« has several achievements. Systemizing the »theory of Mistake« and expanding its scope, regulating the rulings of the necessity of coincidence between offer and acceptance, finding a new basis for justifying many differences between the three legal systems of Iran, France and the United Kingdom as to these issues, are of achievements of this research.