نشریه مطالعات تطبیقی فقه و اصول مذاهب
سال ششم شماره 2 (پاییز و زمستان 1402)

The occultation of the Infallible Imam (as) and the emergence of new events increased the Muslims’ need to know the legal (shar'ī) ruling regarding the newly-emerged cases. It made some Islamic scholars struggle to consider the Islamic worldview and to believe in an area free of legal ruling. In Imāmī jurisprudence, the contemporary jurist Martyr Sayed Mohammad Bāqir al-Sadr called it “Mantiqat al-Firāq” (Belt of Lacuna) and in Sunni jurisprudence, the Egyptian jurist Yusuf al-Qardāwī called it “Mantiqat al-‘Afw” (Belt of Permission). Based on the descriptive-analytical method, this research aims to compare the two theories to investigate and analyze their feature and ambiguities. These two theories have many differences and similarities with each other that can be examined. Examining these two theories, it may be concluded that both areas, which have been proposed with the aim of social justice and respect for the general interests of the society, and in its design, the universality and immortality of the Islamic Shari'a have been taken into consideration, are empty of legal required rulings. In order to fill this area, it is necessary to bring up specific criteria and standards to match them with the general principles and rules of Islam. In addition, both theories have shortcomings that must be amended and completed by their proponents or even critics in order to be applicable.

the contract, sometimes it causes ignorance of the other parties, and sometimes it is not like these last two types. In the first two cases, it causes the nullity of the contract, but in the third case, according to popular opinion, it does not cause the nullity of the contract, but whether it can affect the contract or not? There is a serious difference of opinion among experts. According to popular opinion, the effect of such conditions on the contract has appeared in the form of granting the right of termination for constitutional law.This research, with analytical-descriptive method and referring to library sources, seeks to answer the question whether the conditions in question give rise to the right to terminate the contract. What views or views have jurists and jurists put forward in this field? Is the granting of the right of termination for a conditional agreement compatible with the standards of transaction jurisprudence? What is the position of contemporary legal systems in this field?The result of the research shows that although the point of view of absolute proof of the right of termination without following a condition according to the foundations and documentation is the option of violation of the condition; However, the principle of establishing the contract and the principle of adherence to the illegal matter provides the conditions leading to the detailed view of the knowledge and ignorance of the constitutional law regarding corruption, and in this respect, it is more compatible with jurisprudential and legal logic.

Some Sunni jurists have made jurisprudential use of the historians' reports in the Sirah books (books about infallible’s life). While the Jaʿfari (Imamiyya) jurists do not want to infer to historical sources in their jurisprudence inference. Since historical books can provide jurists with a lot of data about the speech and behavior of infallibles, it seems necessary to investigate the possibility of citing the reports of historians in jurisprudential inferences. Therefore, in the present study, we try to answer the question of whether the historians' reports of the lives of the infallibles can be considered an independent reason in jurisprudential inference. The findings of the present research, which was carried out by descriptive-analytical method and based on library data, it shows that although the four titles "khabar vahed" (single news), "expert's opinion", "khabar motavater" (frequent news) and "instead" (blocking in Islamic sources) can be used as proofs of the authenticity of the historian's report. But according to the limitations and methodological problems in historical sources, only by accepting the validity of "Ensedad" in historians' reports, historical sources can be considered as one of the jurisprudential reasons for inferring imperative rule or positive rules.

Formalism and the consent principle have been open to discussion in law for a long time. When speaking about the principle of consensualism encountering with formalism in law, it is usually concluded that the principle of consensualism is ranked as first and formalism as the second. However, today after going through extremes in implementing these principles in western law, it seems that the confrontation of originality with formalism has been significantly reduced due to new forms and goals. Therefore, it can be said that these two are implemented in law proceed without breaching each other and in line with elevating the science of law in the field of legal practices. Today, the forms that bind legal practice have appeared unprecedentedly, all of which have reasonable and expedient goals; for instance, western law protects consumers against professional sellers in request to establish a legal relation between a skilled worker and an amateur individual in a written form containing the necessary information. Based on the descriptive-analytical method, this research concludes that the synchronicity of the consent principle and modern formalism, in contrast to Western law, in contemporary jurisprudence and Iranian law, has not been well received by scholars in this field. Additionally, the consensualism of legal acts against the new formalism is considered as a principle.

Changes in human societies have created various needs that, if not met, would cause distress and constriction. Islamic jurisprudence has therefore paid special attention to meeting the needs of people. Throughout history, this effort is seen in all religious schools, despite differences in their attitudes. However, Sunni jurists have paid more attention to it than Shi'ites, and subsequently, it is more apparent in their fatwas and judicial decrees. One area of focus in meeting needs (ḥᾱjᾱt) is the substantiation of claims in general and the substantiation of crimes in particular. Using the library and analytical-descriptive method, this research proves that since proof is something that makes the truth obvious, seemingly through accepting indications as proof and the legitimacy of inferring religious laws based on the availability of needs, which has been a common way between early jurists in different jurisprudential matters, the possibility of extending it to criminal cases is valid as well, especially if the most proofs or the only ones are based on people's needs. Therefore, relying on needs for permitting the use of new strategies and methods of proving a crime, such as image, voice, and so forth, not only does not contradict the purposes of Shari'a, but is also compatible with actualization of justice. Obviously, in addition to utilizing traditional evidence, new cases have a complementary role, and if they are not available, they have a substitute role as required; also, they can be cited as legal reasons when there is no doubt in the authenticity of describing them to people.

The issue of whether it is possible to commit the crime of murder by act of omission is a topic of discussion in Islamic penal jurisprudence, which has been concerned by jurists for a long time; that is, whether the crime of murder may be realized in certain circumstances by act of omission. This research uses the descriptive-analytical method to study the issue. The majority of Islamic jurists (Mᾱlkῑs, Shᾱfi'ῑs, Hanbalῑs, Imᾱmῑs, Zaidῑs, and Zᾱhirῑs), believe that it is possible to commit the crime of murder both through affirmative action and act of omission. In Hanafῑ school, Abu Yusuf and Muhammad believe that this type of murder is among the murders caused by reason; however, Abu Hanῑfa believes that the destruction of a human being by act of omission is not basically murder and is not liable to indemnification (ḍimān). Those who doubt the validity of act of omission as a material element of the crime of murder, state that act of omission and refusal are non-existent which cannot cause existence. Based on the findings of this research and available jurisprudential evidence, the belief that the crime of murder by omission is fulfilled in the case of intent to commit murder and the existence of a religious obligation indicating the performance of a duty/obligation and the abstained ability to perform the deed, are more consistent with the spirit of Shari'a, which among the existing views, this opinion seems preferable. Accordingly, if a person has a Shar'i/legal or contractual obligation, his refusal to fulfill this obligation is not just a pure act of omission, but rather, it is a type of breaching contract, that itself manifests as an act. In other words, omission of a pure act itself does not create criminal responsibility, and what is seen objectively is the human actions that have the form of an action. However, it is important to consider the subtle distinnction between abstaining and violating in this context.