فصلنامه جستارهای فقهی و اصولی
سال هفتم شماره 3 (پیاپی 24، پاییز 1400)

Shaykh al-Bahāʻī is the last uṣūlī of the Era of Renewal, whose two valuable works namely, Zubdat al-Uṣūl and Ḥāshīyat al-Sharḥ al-Mukhtaṣar al-Uṣūl are the signs of his mastery over uṣūl. The book Zubdat al-Uṣūl, which has been an educational textbook in the Islamic Seminaries for many years, was written about the uṣūl al-fiqh al-madhāhib (Principles of Jurisprudence of the Islamic Schools of Thought) according to the books al-Aḥkām by Āmadī and al-Nihāyah by ʿAllāmah al-Ḥillī during the period of Akhbārī rule. In the book Ḥāshīyat al-Sharḥ al-Mukhtaṣar al-Uṣūl, he made the most important of his critiques of Sharḥ al-Mukhtaṣar al-Uṣūl al-ʿAḍudī with a concise and specialized statement. By explaining the views of the most prominent scholars of the Islamic schools of thought, he expressed the selected views or independent opinions. He was the first uṣūlī scholar who used the concept of “knowledge” in the definition of fiqh in both certitude (qaṭʿ) and presumption (ẓann) senses. According to the Takhṭiʼah (Falsification) School of Thought, he has considered ijtihād as a doubtful category and considered most of the mujtahids as mutijazzī (partial). He was also the first to deny Ijmāʿ al-Manqūl bi al-Khabar al-Mutawātir (transmitted consensus by the tradition narrated by several sources) due to being sensory of tawwātur, the first to allow the use of the word “wājib” (obligatory) for conditional obligatory, and the first to consider the obedience to khabar al-wāhid (tradition with a single transmitter) permissible rationally and according to the consensus of Shīʿah. This study aimed to explore out the style of Shaykh al-Bahāʼī in the principles of contemporary jurisprudence in order to emulate in similar research.

Exploring the nature of the types of legal precepts (ḥukm al-sharʿī) is ‎one of the most important issues in Uṣūl al-Fiqh (the Principles of Jurisprudence) which is ‎currently of special interest to Uṣūlī scholars. Exploring the nature of ‎ʿazīmah (obligation) and rukhṣah (concession) is one of the issues that is discussed under the ‎nature of legal precepts. A variety of opinions have long been ‎expressed about the nature of ʿazīmah and rukhṣah by Shīʿī and ‎Sunnī Uṣūlī scholars. In the present article, after referring to the written sources, the views expressed in this regard have been described and after analyzing the views and criticizing and examining the arguments, it has been concluded that ʿazīmah and rukhṣah are secondary obligatory rulings. Thus they are included among the famous obligatory precepts.

One of the most important and widely used principles in the discussion of lineage is the principle of linking a child to lawful sexual intercourse (waṭī al-muḥtaram). This principle, which applies in the case of doubt, is mentioned for the first time in the words of the author of the book Jawāhir al-Kalām. Although it has been claimed that this principle was one of the initiatives of the author of Jawāhir al-Kalām and does not have a precedent in the words of jurists, its roots can be seen in the words of the jurists before him and in their discussions such as having sexual intercourse with a usurped slave-girl, breastfeeding (riḍāʾ) and inheritance. The implications ‎of this principle are that, if there is any doubt between giving birth to a child due to lawful sex intercourse, including a woman having sexual intercourse with her husband or misapprehended sex intercourse (waṭī bi al-shubhāʾ), according to sharīʿah the child belongs to a person whose sexual intercourse is lawful and all the legal effects such as inheritance are applied to such a person. While describing the differences between this principle and the principle of al-farāsh, this study presents evidence for the authenticity of this principle such as the connection between lawful sex intercourse and linking the child to it, the principle of validity (iṣālat al-ṣiḥah), reference to the narrations, and the attention of the sharīʿah. After criticizing most of that evidence, the only evidence that seems to be valid from the viewpoint of the writer is the attention of the sharīʿah, and assuming its validity, the minor premise of this issue is proved by induction.

According to the note of Article 1130 of the Civil Code, leaving the family by the husband based on certain conditions is considered as an example of difficulty and trouble and gives the wife the right to divorce. However, it seems that before the establishment of the right for the wife, according to sexual intercourse right (Ḥaqq al-Waṭy) for her, the husband is considered sinful and Nāshiz (a man who refuses to fulfill his marital duties) in leaving his family unjustified and the wife can ask the judge to compel him the right of sexual intercourse. The present study aimed at examining the ‘obligatory ruling of unjustified leaving family life by the husband reliance on the wife’s sexual intercourse right in the jurisprudence of the five major sects’ by the descriptive-analytical method and through studying the jurisprudential books of the five major sects. At the end of this study, it has been concluded that there is a difference of opinion in the jurisprudence of the five major schools regarding the extent of the wife’s sexual intercourse right.  In Ḥanafī jurisprudence, although it is obligatory for the husband doing reasonable sexual intercourse, wife’s sexual intercourse right is once during the entire marriage time. So, although the husband is sinful for leaving the sexual intercourse, he cannot be forced to do so. In Shāfiʻī jurisprudence, the wife has no sexual intercourse right, so the husband is free in this regard. In Mālikī jurisprudence, the wife has the right once every four nights and the husband can be forced to the same amount. Shīʻī well-known and Ḥanbalī jurists believe that the wife has the right once in every four months, which their evidences have been undermined in this study, and the theory of the right of sexual intercourse based on reasonable and customary needs of wife has been proved. Consequently, the husband is obligated to pay attention to the wife’s required and reasonable sexual intercourse and if he leaves it for an unjustified reason, he will be considered sinful and will be forced to do so.

From the jurisprudential perspective, any sexual enjoyment that is not approved by religious law (sharʿ) is somehow considered sexual deviation, and if one is accustomed to this act in such a way that he is satisfied only in this way and is not normally able to leave it, he/she has a mental illness of sexual deviation disorder. Therefore, when the sexual enjoyment causes difficulty or unconventional harm outside the nature of each couples’ engagement in sexual intercourse, it is sexual deviation and if it becomes a habit, it is a sexual deviation disorder even if they are legally married. The husband’s infection with the illness of sexual deviation disorder is one of the cases that legally removes the obligation of the wife to obey the husband and it deprives the husband of the right to oblige the wife to obey.Although obedience (tamkīn) in jurisprudence means the necessity of sexual submission and obedience of the husband, the wife should not disobey the sexual enjoyment of the husband at any time or place. Also, one of the requirements of marriage is the sexual enjoyment of both parties with all its examples and is not limited to the specific example. The examples that have been excluded from the conventional relationship due to being harmful and difficult are exempt from the inclusiveness of evidence for the necessity of obedience to the husband and wife’s disobedience does not make her nāshizah (disobedient). The husband with a sexual deviation disorder cannot force his wife to accept his unconventional obedience which usually leads to intolerable harm or difficulty and only has the right to demand the enjoyments that are conventional.

The extent and the quality of the relationship between men and women is one of the issues that Islām has given special importance to, as it has issued many rules for it. In jurisprudence, these rules have sometimes been presented as obligatory and sometimes as non-obligatory. One of these rules is the prohibition of being alone (khalwat) between non-maḥram men and women. Being alone ‎ means that the non-maḥram men and women must not be alone in a place without the presence of a third person. Being alone with non-maḥrams is forbidden in Islam and some jurists consider it as forbidden (ḥarām) and others as detestable (makrūh). For a long time, being alone with a non-maḥram has had many examples but with the development of technology and the growth of cyberspace, being alone with non-maḥrams in cyberspace has also been added to its examples. By referring to jurisprudential books and examining the conditions for fulfilling the ruling of being alone with non-maḥrams and applying it to cyberspace, the present study has concluded that there are conditions for forbidding being alone with non-maḥram in cyberspace. Therefore, if being alone with non-maḥrams is forbidden in face-to-face situations (based on theoretical differences that exist in this issue), being alone in cyberspace will also be forbidden, and if it is detestable (makrūh) in face-to-face situations it will also be detestable in cyberspace.

One of the issues that has been considered in the category of sexual ‎education is the initial age of sexual influence on children. Educational ‎scientists have approached this issue with different approaches, principles, ‎and methods and are looking ‎for an answer to it. Finding an answer to this ‎question will solve this challenge of what stage of sexual education children should start with.‎ Now, the ‎main question of this study is whether, based on the jurisprudential and ‎inferential approach, it is possible to discover the age of sexual influence ‎on human beings from Qurʾānic texts and narrations and to state that ‎during this age children experience arousal‏ ‏and influence. To answer this ‎question, we have collected Qurʾānic texts and narrations related to this ‎issue through the library method and examined them under the opinions ‎of the jurists in an analytical-descriptive manner.‎