فصلنامه فقه و اصول
پیاپی 135 (زمستان 1402)

The majority of jurists have not emphasized the personality of the unauthorized owner (Fuḍūlī) in the context of transactions with unauthorized owners, and have generally applied the term without restriction. According to these jurists, anyone can play the role of the unauthorized owner (Fuḍūlī). This approach exists within both well-known perspectives, namely the validity of the unauthorized owner, and the lesser-known view which is the rejection of the unauthorized owner. In the conflict between validity and rejection, famous juriconsults have engaged in interpretations of the rejection narratives that are in no way justifiable. These interpretations are offered on the basis of neglecting the conditions of validity narratives and stem from the groundless affirmation of the verdicts regarding transactions of unauthorized ownership. By carefully analyzing the lives and customs of intellectuals and validity narratives regarding unauthorized owners, we encounter conditions on which the validity of unauthorized ownership transactions is based. The absence of these conditions in the aforementioned examples in other narratives is considered as the reason behind their rejection. Therefore, the application does not exist in either of the categories and consequently it is not valid to consider such transactions as absolutely valid or invalid. These conditions are rooted in the unauthorized owner’s personality and include: harmony between the unauthorized owner and the genuine owner (Aṣīl), the unauthorized owner being trusted by the genuine, and the unity of contractor and the contracted. By referring to general norms and reports regarding the validity or rejection of unauthorized ownership transactions, it is proved that the validity and rejection of transactions depend on the inherent characteristics of the unauthorized owner.

One of the principles taken up by Imāmī scholars concerning the issuing of acting permissions for some of the non-obligatory verdicts is a principle known as Proofs of Tolerance (Tasāmuḥ)  in the Recommended Rulings(Adilli-yi Sunan). According to this principle, there is no need for strictness in accepting weak reports guiding towards non-obligatory actions. Some of those who believe in this principle limit the scope of its application to jurisprudential verdicts, while others expand its boundaries to include Ḥadīths regarding the virtues of ʾAhl al-Bayt (the Prophet’s family) and ethical and medical reports as well. The acceptability of expanding the application of the Tolerance principle to reports transmitted from the Sunni Hadiths is also one of the issues frequently discussed regarding its scope. It has been concluded based on analyzing the arguments of its proponents and opponents and with the help of library sources and the descriptive-analytical method that no comprehensive approach can be adopted regarding general reports and using the Tolerance principle. In contrast, the Reliability of Issuance (Vuthuq-i Șudūrī) approach can be employed in respect to Sunni Hadiths. That is only if the reports are not against Shīʿa teachings or narrated by individuals accused of dishonesty and hostility towards ʾAhl al-Bayt.

One of the factors involved in the abolishing of property is the principle of Tark-i ʾIstisfṣāl, which helps the generalizing of the verdict beyond the specific matter questioned by the narrator. In some Ḥadīths, the narrator’s question is general and it is possible to logically infer the generality of the verdict based on the generality of the question and by omitting the specifications of the Maʿṣūm (infallible). Some aspects of the principle have been mentioned in the foundational (Usūlī) books of early Juriconsults. In order to determine the scope of Tark-i ʾIstisfṣāl, a proper analysis of the principle is needed. Similarly, the components, channels, methods of inferring used by the general public, and the principle’s scope of application should be analyzed. Pursuing this topic in jurisprudential and foundational (Usūlī) sources by employing the descriptive-analytical method has revealed the following results First, the components of Tark-i ʾIstisfṣāl consist of the antecedence of the narrator’s question, the possibility of generalization for the answer, and the existence of probability in the question. Second, Tark-i ʾIstisfṣāl is more prevalent in ʾIftāyī (precautionary) Ḥadīths, and the independence or lack of independence of the Maʿṣūm (infallible)’s answer does not influence the general application of the principle. Third, the questioner’s intention and the inequality of probabilities plays a determining role in the scope of generality in Tark-i ʾIstisfṣāl. Finally, the generality of Tark-i ʾIstisfṣāl is inferred and weak. The specificity of Maʿṣūm (infallible) is does not necessarily help the exclusiveness or specificity of the verdict.

Iran’s legal system is highly influenced by Imāmī jurisprudence in many areas. Regarding civil responsibility, the rich capacity of jurisprudence related to principles of guaranteeing covers various types of common civil responsibilities, including contractual liability. The principle of Tasbīb (Causation) is the most fitting principle that can serve as the basis for the necessity of compensating damages resulting from contractual breach. The mechanisms of Article 221 of the Civil Code and some jurists’ endeavors to establish a separate system for contractual liability is subject to criticism. Utilizing jurisprudential capacities neutralizes any ground for separating the various types of liability, and eventually enables the possibility of referring to the Tasbīb Principle in contractual liability based on some jurisprudential views. Additionally, it necessitates the need for reconsidering existing rules and establishing a common system to replace the scattered and inconsistent laws regarding liability, such as some Articles in the Civil Code or the Law of Civil Liability 1399, some provisions of the Civil and Criminal Procedural Law, and the Islamic Penal Code.

The victory of the School of Ijtihād over the Akhbārīs school is above all influenced by the scholarly power, eloquence, and mentorship of Vaḥīd Bihbahānī.  The type of Ijtihād formulated by him was never a continuation of Muḥaqiq Ardibīlī’s thought pattern, but rather accompanied by developments in the acceptance of repots. In facing the Akhbārīs, he acknowledged Ijtihād as an offspring of the needs of the scholarly community, putting emphasis on the credibility of Imāmī books instead of the apparent reliability of narrational sources. The main question of this research is to recognize Vaḥīd Bihbahānī ‘s main criteria in dealing with Ḥadīth, and to investigate how he formulated his approach. The theory of Blocking (ʾInsidād) was his most important tool in expanding the scope of accepting reports. Based on this theory, he would justify the authority of reliable, good, and strong reports as well as that of authentic news. Similarly, he would even consider suspicion enough to prove the reliability of the narrator. Later experts did not approve of this theory. Another important tool employed by Vaḥīd Bihbahānī in expanding the scope of accepting narrations was to compensate for the weakness of the document through the actions of Aṣḥāb (companions). Therefore, by proposing the theory of ʾInibār, he considered only weak non-compelled reports as invalid among the four categories of Ḥadīth (authentic, good, reliable, and weak).

The principle of prioritization (ʾAhamm va Muhim) is one of the most useful jurisprudential principles employed in the case of conflicts between two verdicts. Some examples of such conlicts can be found in urban planning and city management, including conflicts among public and individual interests in the establishment of public projects. The present study aims at determining the status of Prioritization principle in urban planning and city management by means of textual content analysis and logical reasoning with a qualitative and inter-disciplinary approach. The study concludes that the precedence of social benefit (Maṣlaḥat) depends on conditions such as being otherworldly, religious, worldly, social and public, and also serving Sharīʿa purposes such as justice and benevolence. Additionally, in order for the more crucial matter to take precedence over the important in urban planning, it is important to pay attention to the planning and design patterns. For instance, plans that are purely technical and physical and economic are to be avoided. It is essential to minimize private property ownership while trying to preserve justice, ensure everyone’s satisfaction, and pay attention to the essentials of Islamic urban planning and the participation of all stakeholders. It is also crucial to take into account the rights of God (Ḥagh Allāh) and People (Ḥagh Al-nās).

The threefold verses of Sūrah ʾAl-Nisā provide a detailed legislative framework for the laws of inheritance. In understanding these verses, it is important to have an understanding of the history of inheritance as well. In the tradition of Arabs before the advancement of Islam, men who were blood relatives of the deceased directly or via other men, were considered his/her heirs. Closer relatives would deprive more distant ones of their inheritance rights. Inheritance verses were revealed in such a context, with the purpose of determining a share for those who were deprived of inheritance. Therefore, the Quran has not written the rules of inheritance in vacuum, but rather in accordance with the existing norms and as corrective measures. This cultural background reveals the reason why some relatives have specific shares of the inheritance while others do not have that. On the other hand, the allocation of certain shares from the inheritance to non-heir members in the pre-Islamic custom could lead to the deprivation of those without a share or the excess sum of shares beyond each other. It seems that in order to solve these challenges, one should use the proportion of the heir’s shares in comparison with each other instead of proportioning the shares of heirs to estate.

One of the most important financial rules is the inheritance of people from one another if the condition exists, which has always been prevalent across the nations and followers of holy religions. In this regard, Islamic Sharīʿa has provided precise legislations that determine the ranks and levels of heirs and their shares. According to most inheritance āyahs, all eligible individuals, regardless of their religious relations will inherit from one another. These general rules, supported unanimously by Farīqayn juriconsults are established with conclusive evidence; including reports indicating that non-believers will not inherit from Muslims. However, Islamic sects disagree whether Muslims inherit from non-believers or not. The majority of common juriconsults (Fuqahā-yi ʿĀmmih) believe that Muslims don’t inherit from non-believers. On the other hand, Imāmīya juriconsults and a few of the common juriconsults assert that Muslims do inherit from non-believers. The key point is that Imāmīya juriconsults unanimously believe that in case of the existences of a Muslim heir, the non-believing heir will be deprived of inheriting from a non-believer, even if the Muslim belongs to a more distant rank and the non-believer is closer in rank. The present research investigates the issue of the Muslim’s disinheritance from a non-believing heir, using the descriptive-analytical method and document analysis. Contrary to popular belief, the study concludes that arguments in favor of disinheritance are incomplete and the non-believing heir will inherit from the non-believer according to the general rules of inheritance.

The Intention of the Lawmaker (Midhāq-i Shāriʿ) is one of the recurring proofs in jurisprudence (fiqh) in order to obtain religious verdicts. However, jurisprudential and ʾUṣūlī books have not dedicated independent chapters for the refining of this subject. The present study aims at achieving a clear definition of the term and the method of detecting it the field of Ijtihād and jurisprudence. The study concludes that the Intention of the Lawmaker (Midhāq-i Shāriʿ)  includes the following: the resultant of the understanding of the jurist from a network of propositions indicating the epistemological system of religion, the characteristics of the lawyer, humanity, and society, the purposes of Sharīʿa, the collection  of legal verses (Āyāt al-Sharīʿa), the collection of jurisprudential principles, the priorities of the lawyer and his preferences, similarities and analogies in rulings with Shīʿa interpretation, the collection of definitive rulings in determining the boundaries of Wājib (obligatory) and Ḥarām (prohibited) acts, the collection of definitive verdicts in determining the lawyer’s desirable actions concerning Mustaḥabāt (recommended acts) and Makrūhāt (discouraged acts), and practical principles (ʾUṣūl). The present article outlines fifteen steps in understanding the aforementioned issues. These have been applied in a case study of the Intention of the Lawmaker (Midhāq-i Shāriʿ) in the matter of a husband revoking his gift from his wife.

The ongoing transactions in the society and the potential losses that may affect the parties involved in transactions has inspired jurisonsults to extract some criteria for regulating transactions to prevent financial loss. The absence of each of these criteria leads to the voidability and nullification of transaction. The criteria include: The power over surrender, value of the price and the priced item, rational benefits for both parties, ownership of transaction subject, clarity and specificity of the price and the priced item, and irrational prices, which are considered common phenomena in today’s market. The cryptocurrency market, which has emerged with relatively specific features, has characteristics that can reinforce the suspicion of voidability on their own. Therefore, aligning the mentioned criteria in juriconsulting books with the cryptocurrency market and analyzing their specific features revels that the criteria for the voidability of transactions in the cryptocurrency market is missing and the market’s specific features do not lead to their voidability. Rather, it’s entering the market without a scientific background that leads to the voidability of some transactions. Therefore, in order to eliminate the grounds for the voidability of transactions in the cryptocurrency market, we should acquire knowledge on the topic.