نشریه قرآن، فقه و حقوق اسلامی
پیاپی 12 (بهار و تابستان 1399)

The fact that the men are in charge of women is expressed in ayah 34 of the surah An-Nisa by Allah. But it is controversial whether by rijal (men) and nisa (women) it is meant the gender of men and women or as to the context of the ayah it is only meant the husband and their wives. Naturally, according to the first possibility, it is more probable that the women can take charge of positions entailing guardianship. While, according to the second possibility, the content of the ayah is allocated to the family domain but not beyond that and its generalization of the content to non-family affairs needs some external efforts. The present article attempts to examine the single words (mofradat) of the ayah and to consider the context and the causations mentioned in the ayah in order to reach its confirmatory denotations and to examine and study those aspects by referring to which one can generalize the content of the ayah from family domain to all social aspects. It is worth noting that the present article considers only the abovementioned ayah which has been considered and discussed from the past. Naturally, the other ayahs of the Holy Quran and their related evidences need further discussion.

The present article seeks to prove no-oppression jurisprudential rule. This rule implies that “If it is recognized based on a reliable and dominant rational basis for understanding the intentions of the words by the Divine Legislator that the application of a verdict according to its application of reason is oppressive, the application of the reason and the application of the verdict resulted from the application of the reason will have no validity and authenticity.” This jurisprudential rule has been proved based on the implication of the verses of the Holy Quran after the revision of the matter, its differentiation from the erroneous matters, and after the explanation of the principles of the rule in three steps. The first step is to prove that a number of verses about no-oppression in the Divine Presence has an eye to the status of the divine legislation. The second step is to prove that the common rational oppression is the criterion for understanding these verses. And, the third step is to prove that the priority and the dominance of these verses over any other ruling that is an instance of the common rational oppression. Because of the novelty of understanding and proving of this rule, the last part of the article explains some examples and instances of the application of the rule.

The husband’s sexual disgust has no legal or ethical consequences for him; since the man who feels disgust with his wife can divorce her or marry another woman. However, is it possible for a woman who feels disgust with his husband to terminate her marriage through the divorce at the wife’s instigation or not? The famous Imamiyyah jurisprudents hold that the divorce at the wife’s instigation is by no means obligatory for the husband and believe that the wife in this situation has no choice but to be patient and to keep self-denial. Their most important reason for the lack of obligation of the divorce at the wife’s instigation is the ayah 229 of the surah Al-Baqarah and the traditions surrounding it. In contrast, a group of jurisprudents has considered the divorce obligatory in these cases. Some believe that the wife’s sexual disgust with her husband may expose her to corruption and if there is no way but to divorce, it becomes obligatory. Another group, relying on the rule of no-hardship, decree that it is obligatory for the husband. The wife’s sexual disgust with her husband deprives her of sexual relations and causes mental pressures and in the case when there is no choice but divorce for the woman, it is obligatory for the husband to get her divorced and dissolute the marriage. The present text tries to prove the theory of the obligation of preventive divorce; meanwhile it aims at criticizing the theory of the lack of obligation of divorce.

Breast-feeding an infant is done by the mother or non-biological mother (wet nurse). Breast-feeding by non-biological mother makes marriage prohibited in specific conditions and brings about mahramiyyat and kinship. The ayah 23 of the surah Al-Nisa is the only ayah discussing this matter. This ayah proves the ruling of prohibited marriage due to milk kinship for two groups of women (mothers and foster sisters). There are wide disagreements and disputes among the Shi'a and Sunni jurisprudents and interpreters on deducing the rules pertaining to the prohibitions of fosterage as well as the interpretation and explanation of this holy ayah. The emergence of this holy ayah confirms the word of khosus al-manzilah in the prohibitions of fosterage, the application of the ruling of prohibition to the posterior (lahiq) fosterage on contract, the necessity for the breast-feeding woman to be alive, the lack of necessity of marriage contract in the time of breast feeding and the stipulation of sucking in the ruling of prohibition.

There are some criteria introduced for differentiating the judgments of approval from the constitutive judgments including the mood and the type of the verbs used for the statement of that judgment. It is claimed that if the verb of the sentence that expresses the judgment is a declarative sentence in the past tense, it will be a judgment of approval; since the past tense of the verb implies that the judgment existed in the past and the precedent for the legal law is a criterion for the judgment of approval. The present article first explains the above-mentioned claim and its evidences. Next, it is criticized and proved that using only the past tense of the verb to express the judgment is not an adequate sign of the judgment to be a judgment of approval.

There are a number of verses in the Holy Quran about the previous religions within which one can examine the authenticity of these laws in the religion of Islam. Most of these verses assert that the Quran or the Holy Prophet of Islam (pbuh) confirm the previous religions. The present article, using a descriptive-analytical method, seeks to examine the implications of these verses about the authenticity of the previous religious law in Islam. As a result, the present research proves that the holy verses of the Quran confirm the authenticity of the law of the previous religions. There are a number of ways by the aid of which one can have access to the original laws of the religions in order to judge the validity of those laws for the followers of Islam.