فصلنامه جستارهای فقهی و اصولی
سال هشتم شماره 4 (پیاپی 29، زمستان 1401)

The term ‘moral luck’ refers to the influence of factors based on luck on moral judgements about human actions. Hereditary and regulative characteristics, temporal and spatial situations, as well as unforeseeable or unmonitored consequences, are among the most distinguished factors based on luck. Scholars of ethics have proposed different answers to solve this challenge that how to make a fair moral judgement despite the existence of luck-based factors. In a similar challenge, the Uṣūlīs have also tried to analyze the issue of deserving afterlife punishment according to the influence of involuntary factors on human actions. This study has identified and criticized the approaches of Uṣūlīs regarding the mentioned issue. As a result, Uṣūlīs often accept that things based on luck, which are involuntary and out of control cannot be considered involved in punishment. But, their understanding of these concepts is different. The beliefs, classifications and solutions presented by the Uṣūlīs in this issue have significant similarities and commonalities with the beliefs of scholars of ethics regarding the issue of moral luck.

The usage of the madlūlāt al-iltizāmī (obligatory significations) of declarative and imperative sentences has long been the focus of the uṣūlīs and jurists. In Uṣūl al-Fiqh (principles of jurisprudence), obvious obligatory significations in its specific sense in a topic such as concepts and obvious in its general sense in ghayr al-mustaqilāt al-‘aqlīyyah (non-independent rational) has been proposed, and the validity and authenticity of this type of obligatory significations have been seriously discussed. But the other type, which is the non-obvious obligatory significations, despite its use in some of its types such as aks al-mustawwī and aks al-naqīḍ, less attention has been paid to their validity and authenticity. The purpose of this study is to answer the question of whether the validity and authenticity of non-obvious materials of sentences can be proven by emphasizing some of its types, i.e. aks. By using the analytical-descriptive method and presenting examples of reference to aks al-mustawwī and aks al-naqīḍ, this study aims to solve the challenges of their validity. In conclusion, by examining the ways of proving its authenticity and explaining the definite correlation, it has proved the validity of these items in some cases.

One of the most important rules in psychoanalytic sessions is that the client tells him what is going through his mind in a safe environment without the presence of anyone but the therapist. Given that many clients need to refer to a therapist of the opposite sex, the question arises what is the obligatory ruling of privacy between a therapist and a non-same-sex client? In order to answer this question, the ruling of being alone with non-maḥrams has been analyzed in this study. The result of this jurisprudential analysis is that according to the plurality of aḥādīth, the forbidding from the shāri’ (holy lawmaker) in this case is generally consistent. But it is not possible to infer the ḥurmat al-mawlawīyyah (obligatory prohibition) of being alone with non-maḥrams from these aḥādīth, because the forbidding in these aḥādīth is irshādī (advisory). Based on this, privacy between the therapist and the non-same-sex client is also not ḥarām (forbidden) in terms of obligatory ruling. In the continuation of this study, the prohibition of this act is also examined through its muqaddimī (precedence), and the conclusion is reached that the prohibition of this act cannot be proven in this way either. Because this action is not done with the intention of committing fi’l-ḥarām (a forbidden act), and if the necessary rules in psychoanalytic sessions are followed, it does not lead to a forbidden act. In this assumption, it is not possible to infer the ḥurmat al-taklīfīyyah (obligatory prohibition) of performing the introduction based on any of the various bases. If the theory of some jurists regarding the prohibition of privacy with non-maḥrams in case of the possibility of mafsadah (sin) is accepted, then the privacy between a therapist and a non-same-sex client will not be ḥurmat al-mawlawīyyah, because if the psychoanalytic sessions are conducted properly, the possibility of mafsadah will be minimized and the condition of prohibition of privacy with the non-maḥrams will not be fulfilled.

One of the certain rulings in Islamic sharī’ah is the proof of ‘iddah (waiting period) for a woman in various situations such as the death of her husband, divorce from her husband, and intercourse by mistake. For this Islamic ruling, many philosophies have been expressed, such as preventing mixing and mistaking lineage, honouring the right lineage, and the dignity of the woman. In most cases, the proven of ‘iddah for a woman depends on marital relationship and sexual intercourse. But today, with the advancement of science and technology in medical issues and the emergence of new reproductive methods through artificial insemination, and sperm and egg injection without any sexual intercourse, it is possible for a woman to become pregnant. Therefore, Islamic jurisprudence has faced the question that, is the ‘iddah proven for the woman in cases of artificial insemination or not. This research is looking for a jurisprudential well-reasoned answer about the ruling on the proof of ‘iddah of couples in different methods of artificial insemination, which after dealing with argumentative and ijtihādī issues and examining the views of jurists, it has been concluded that the “evacuation of semen” in the woman’s womb with new methods of artificial insemination is also proven the ‘iddah for the woman, and sexual intercourse are not relevant for the ruling to prove the ‘iddah. Consequently, in the case of sperm injection to a single woman or a married woman, it is proven the ‘iddah for artificial insemination, and this woman should avoid sexual pleasures as will be detailed later.

One of the issues of jurisprudence and family law is about work such as cooking, washing clothes, cleaning and tidying the house. The opinion of the renowned majority of the jurists is that it is not wājib (obligatory) for the wife to do these things. However, paying attention to these topics in two chapters, nafaqah (alimony) and nushūz (material disobedience), makes this view face academic and practical problems. The unpopular opinion based on the irtikāzī (fixed way) condition considers them as the duty of the wife, which has faced serious criticism from the jurists. Therefore, it is necessary to explain the ḥukm (ruling) and give a reasonable argument on this issue. This paper, which is presented in an analytical and reasoning method, tried to pay attention to the basis of the necessity of Consorting in an honourable manner. According to this result, the wife is not entitled to wages for doing household chores, and she is also not nāshiz if she does not do these chores.

One of the challenging aḥkām (rulings) related to the women’s rights system in Islam is the ruling on the permissibility of enjoying an underage wife. According to this ruling, any sexual enjoyment is permissible from an underage wife except dukhūl (penetration). Using library sources and the descriptive-analytical method, the present paper tries to review this ruling. For this purpose, after explaining the arguments of those who believe in the permissibility of enjoyment from an underage wife, it has reviewed each of these arguments. Then it has followed the selected point of view in two parts, the reasons for the permissibility of changing the rulings and the effective components for changing the ruling on the enjoyment of the underage wife. In the first part, it was proved that the two main reasons for the ruling and the change of conditions can be used to change rulings. In the next part, it considers the following five factors in the issue of enjoyment of the underage wife as the reason for changing the first ruling: rational qubḥ (evil); being unconventional; opposing the interest of the child, being harmful, and opposing morality. Based on the following explanations of each of these components, any sexual enjoyment of an underage wife will be impermissible in the current age.

The basic principle is that the claimant must prove his claim.  Despite this, in Islamic jurisprudence, the amīn’s (depositary) claim is accepted in cases without argument. Assuming the validity of the jurisprudential point of view and its implementation in law, we are discussing the process of dealing with the depositary’s claim. In cases where the depositary is in the position of the defendant and his answer is just to reject the claim of the plaintiff such as a loss claim against a lawsuit requiring the rejection of the entrusted property, or the depositary’s response is to reject the demand, such as the depositor’s claim to reject the property, his response is a defence type in a special sense. In cases where the claim of the depositary is such that in addition to rejecting the claim, he wants the court to make a decision about another person. In this case, with the combination of the conditions of a counterclaim, the depositary must raise a counterclaim, for example, when the depositary makes a claim for loss of property and maintenance costs against the claim of the obligation to reject the property.