فصلنامه جستارهای فقهی و اصولی
سال نهم شماره 4 (پیاپی 33، زمستان 1402)

The bases of intellectuals are the main reason that is introduced by Uṣūlī scholars for the validity of the imārāt (indications). This reason, along with the approval of the shāriʻ (lawmaker), is considered decisive proof of the validity of the indications. But, contrary to the theory of the validity of approved indications, can it be said that the validity of the indications is not made by shāriʻ and could not be, as it is not accepted and it is not possible to reject it at all by shāriʻ. Rather, do rational indications have inherent validity? Using the analytical method, this study tries to derive the role of rational taḥsīn (admiration) and taqbīḥ (condemnation) in relation to the rational indications and to substantiate the theory of the inherent validity of the rational indications by identifying its components. The theory that this study relies on as the criterion of ḥusn (good) and qubḥ (evil) is the criterion of expediency and corruption. This study comes to the conclusion that rational indications are formed based on the needs of life and public interests, which the society system depends on, and the public attitude is based on acting on them. Public interests and the needs of social life are the middle ground that recognizes rational indications as structures based on rational admiration and condemnation. As a result, they are valid by virtue of intellect. This ḥujjīyat (validity) is inherent according to virtue of intellect. Unlike the usual system of validity, in which the inherent validity is removed from it, and other indications have ʻaraḍī (accidental) validity, the theory of the inherent validity of rational indications provides a new structure of the uṣūlī validity system.

The discussion of sahlah and samḥah (taking easy and simple) sharīʻah is important. Because in different eras, especially our era, some have chosen the way of tasāmuḥ and tasāhul (making easy) in religious matters by citing this principle. According to this view, if it is difficult to perform a task, it is not necessary to comply with it, even if it does not cause stricture or harm. On the other hand, some jurists have taken great precautions in fiqh and uṣūl al-fiqh by relying on ʻilm al-ijmālī (collective knowledge), the probability of punishment, the good perception of reality, and such issues. So that, no matter how we interpret it, the sahlah and samḥah sharīʻah will not find a place in fiqh. By examining the evidence that indicates the sahlah and samḥah sharīʻah, it was found in this study that the most correct understanding of the meaning and concept of this principle is that this principle only has an external jurisprudential view. This study is in the position of a general comparison between all the laws of Islām and the laws of other religions and is not in the position of simplifying the rulings. Therefore, based on this principle, it is not possible to disprove rulings that are difficult for the mukallaf (the one charged with a duty), but their difficulty does not reach the level of stricture or harm. The result of this study is used in many old and emerging issues, such as the issue of hijāb, the issue of sex reassignment for those who are not compatible with their apparent gender, or the issue of embryo donation for couples who find it difficult not to have children.

According to the opinion of well-known jurists, a criminal who commits a crime outside the Sacred Mosque (Masjid al-Ḥarām) in Makkah and then takes refuge in this holy place, is subject to Islamic treatment and is immune from punishment as long as he/she resides in the holy shrine. The important question is raised whether it is possible to extend the ruling of “criminal immunity for criminals who reside in the Sacred Mosque” to other holy shrines as well or not. In response to that, some jurists consider holy shrines to be the same as the Sacred Mosque and cite four reasons to prove their claims, but another group does not accept the association of other holy shrines with the Sacred Mosque. In this regard, they citing to this evidence that “there is no special reason” and “adhering to the principle.” Using the descriptive-analytical method and with a critical approach, this study strengthens the second group’s point of view and analyses and criticizes the first group’s point of view. Therefore, in the end, the conclusion has been reached that the view of the second group is correct. But, if the immunity of criminals who take refuge in the Sacred Mosque is based on the security of the shrine, as the religious texts clearly state this matter, due to the existence of a special text (naṣṣ) regarding the security of the Holy Shrine of Imām al-Ḥusayn’s (ʻa), only this holy shrine can be associated with the Sacred Mosque and not the other holy shrines.

The Principle of Iqrār (Confession) is one of the jurisprudential principles that includes how the Imāmīyyah relates to other religions and even non-Muslims. Āyatullāh Sīstanī does not accept the Principle of Ilzām (Obligation) in its common sense among Shīʻī jurists, and he does not consider the implication of the aḥādīth of this chapter to be limited to this principle. Rather, according to these aḥādīth, he replaces it with the two other Principles of Iqrār and Muqāṣṣat al-Nawʻīyyah. The Principle of Iqrār has an important and facilitating role in regulating the relations between Shīʻahs and followers of other Islamic religions and sects, as well as at higher levels, in regulating the relationship between the Shīʻah or Muslim governments with non-Muslim or disbelieving governments. In fact, the Principle of Iqrār is the same as signing or respecting the laws of other religions and schools of thought for a peaceful life. The Principle of Muqāṣṣat al-Nawʻīyyah also implies a similar social confrontation or a similar movement at the level of power and sovereignty. In Imāmī jurisprudence, the Principle of Iqrār as a jurisprudential and legal principle – public and private – is the harbinger of pure peace in international and inter-religious relations. In fact, by disapproving the Principle of Iqrār narrations in the well-known sense among the jurists and also disapproving its generalization and the manifestation of the rational Principle of Iqrār or Muqāṣṣat al-Nawʻīyyah of these narrations, Āyatullāh al-Sīstanī denies the appearance of these narrations in a devotional principle for the benefit of the followers of Imāmīyyah. He tries to give a universal interpretation of these narrations. This reading of the Principle of Iqrār is more compatible with justice and coexistence with other religions. The non-generality of the Principle of Iqrār and also the non-contradiction of the Principle of Ilzām with the Principle of Iqrār and the manifestation of both principles are among the controversies in this principle.

Iran’s commercial laws are a codified set of do’s and don’ts for commercial business activities. These laws have always been important to scientific societies due to the high incidence of the citizens’ society [what is meant here?]. Since the business system of Muslims is intended by the holy sharī’ah, the set of commercial laws of Iran are also not oblivious to the inclusion of sharīʻah and considers it necessary to adapt these laws to the jurisprudence standards because Islam considers itself to have a comprehensive and universal plan for all human issues. Since commercial laws regarding business affairs are derived from French secular law and approved by the National Consultative Assembly, the need for jurisprudential analysis of these laws will be considered a serious demand. What is included in the limited space of this study is the jurisprudential analysis of limited liability in the affairs of companies, which has not been mentioned in any jurisprudential research paper. Now, according to the interpretation of Article 94 of Iran’s Commercial Law, in limited liability companies, the partners are only obligated to the creditors according to the amount of their capital in the company, in this case, if the company’s debt exceeds the partners’ capital, the creditors will never get all their rights. Now, it should be stated that what motivates the author to write this study is the clear discrepancy between the contents of this Article of the Commercial Law with the holy sharīʻah and with the generalities of the evidence of the obligation to pay the debt, which, of course, due to analytical remarks, there will be no way to allocate these generalities. Thus, what will be possible is the obligation to pay the debts of the company’s creditors to the extent of all the assets of the company’s owners. The theory of limited liability and the commitment of its partners to the amount of their initial registered capital in the company, which is part of Iran’s Commercial Law, has clear jurisprudential differences and obvious contradictions. This research paper is developmental based on the intended goals and descriptive based on its need for hypothesis.

Today, in many sale agreements, including a number of real estate purchases and sales, determining the amount of thaman (price) at the time of signing the agreement is either not possible or entails great risk. While many jurists have considered determining the amount of thaman at the time of signing the agreement as a condition for the validity of the sale agreement, and this condition has been specified in Article 338 of the Civil Code of Iran. The main question is whether the determination of the amount of thaman is an imperative rule and a condition for the validity of the sale, or is it enough for the validity of the agreement to provide a clear and indisputable process in the text of the agreement for determining the thaman in the future of the agreement? This study concerns the evidence of the necessity of determining the thaman – including the Prophet Muḥammad’s ḥadīth of the prohibition of the gharar (risk-taking) sale – demonstrate that not only is there no evidence for the first possibility, but a ṣaḥīḥ narration correctly indicates the second possibility. This study has dealt with analytical-critical data processing with the textual-revealed method.

Mining cryptocurrency is a seemingly new issue that, like other newly emerging issues, should be examined in terms of its correspondence with the criteria of validity of ʻuqūd (contracts) or īqāʻāt (unilateral obligations) in order to determine the opinion of the holy sharīʻah regarding cryptocurrency mining. If some of these criteria are not observed, the exchanges will be invalidated and unreasonable. The power to submit, property, rational interest, ownership, clarity, and definiteness of the ʻiwaḍayn (two sides of the transactions) are among these criteria. In the present study, the criteria mentioned in jurisprudential books regarding the mining of cryptocurrencies were examined, and finally, it was concluded that there are no criteria for the unreasonableness exchange in the mining of cryptocurrencies, in mining cryptocurrencies, ʻiwaḍayn have financial value as an exchange that have many similarities to juʻālah, there is not even a religious obstacle to challenging their financial value, there is the power to submit them, and in terms of meeting the conditions of ownership, having a rational interest and being clear, there is no problem for them.