Jurisprudence and Fundamentals of Islamic Law
Year:2010 | Volume:43 | Issue:1|Papers Count:9

The Theologians School is one of the most famous theological schools among Sunnis, Mo’tazelah and Abaziye. Using a deductive manner and by clarifying cases and regardless of jurisprudence precepts, theological rules are set and developed in this school. The sources of research in this school include theological rules, theology, dialect, jurisprudence and the logic. The main strategies of this method are viewpoint and polemical manners.The school have positive and defendable features such as clarifying matters and neutrality in analysis, refining the data, freedom and autonomy in expressing views, overcoming principles on jurisprudences, paying attention to clarifying disagreements, deep and accurate discussion on problems and critical features such as non-relevant matters with jurisprudence principles, analyzing of matters without jurisprudence impacts, paying no attention to jurisprudence rules and exaggerating in stating assumptive reasoning and responding them.

Explaining some Islamic theological opinions gives rise to the subject of Obligatory Preliminary (Moghadamaye Vajib) to enter into Usul Fiqh in 5th century. Jurists with resort to legal opinions in earlier centuries try to analyze legal propositions which is consisted of Obligations and their Preliminaries and Prerequisites. The result of this analysis was distinction between various kinds of preliminaries and matters like "prerequisite" and "Cause". Despite the fact that different ideas about Moghadamaye Vajib existed among jurists, both Sunni and Imami, development of this matter is owed to Imami scholars efforts. This development was to the extent that its application in Fiqh caused doubt and some considered it as a useless subject. This essay with a historical method, attemmts to regulate the development of this matter in Islamic Jurisprudence. Finally, some legal opinions in earlier, middle and recent period is chosen to illustrate the application of this matter in analyzing personal and social problems in Fiqh.

Banking without usury is a very important object that has been considered by experts and investigated all time. In this writing, we have explored banking debt with known profit and concluded its rightness, based on soling debt right. In this way after lending money the bank sales it to debtor with agreed price. The way is similar about person's lending to bank and thus there is no usury. In addition, this kind of sale can includes all persons, legal and natural.

Will is the basis and foundation of contracts and possessions; almost without which no contract and possession can take the religious and legal affects. Heart is the place of will, and because will has a high dignity, it cannot attributed to any matter unless it is declared and manifested. Silence is one of the means of Interpretation of the will. It, like utterance, scribe, deed and gesture, has some rules. jurists consider that silence cannot be considered as the will but if there are any letter of religious and legal, customs and relevant evidence, with certain conditions, the silence is interpreted as the will. Silence may be explicit or implicit. There are some criteria such as the existence of the letter, modesty, losses voidance, custom and analogy for detection and differentiation of silence, which will be interpreted as the will or not, and each one is considered as the will according to specific rule.

The traditions transmitted from the Infallible Imams (A. S.) are one of the most important resources of jurisprudential rulings.There are some conditions for any tradition to be accepted and Islamic scholars have identified several ways for investigating that whither the conditions are met in a given tradition or not. Some of these conditions are related to the narrators of a tradition, such as justice. One of the ways to narrator’s justice is the originality of justice (Esalat al-adalat), which has been neglected. However, it is obvious that through this principle we can accept the authority of many traditions, if we can prove its validity. Here, in this article, the author has tried to study the validity of this principle.

In the present era, the cultural heritage of the nations is taken into consideration, and has found great significance in several aspects. This importance has enforced the nations to enact their particular laws in cultural heritage domain; among the rest, the ownership of Historic-Cultural Monuments. These laws lead to the restriction of private ownerships in many cases. In the first glance, it seems that Islam, due to its special regards to the private ownership, not only validates the possession of Historic-Cultural Monuments (on the basis of Islam's primary laws), but furthermore, considers its contravention illegitimate. This article suggests another approach, upon which the mentioned laws –without resorting to Necessity or Expediency - are expected not only agree with the Islamic laws but provides the facilities for their performance.

Entailment right in marriage is one of the legal issues, which needs further elaboration. The nature and the quality of couple’s enjoyment of this right have not been fully considered by the scholars.As a result, there exist a great number of unresolved questions in this regard.The present article first studies the notion of the entailment right and its concerned types and then reviews article no.1085 G.M. so as to prove that the entailment right is one of the objective rights. This right has been unanimously approved from the legal standpoint; however, it has been disputed from the jurisprudent standpoint. It is worthy to note that a major number of legal and jurisprudent scholars have maintained this right for men. This article also attempts to clarify on how to act when both man and the wife exert this right. It is also evident that the wife is allowed to exert the entailment right until the part of marriage portion which is due is remitted in full.

Having briefly been reviewed the historical process of changing the formulae for determining the times of Islamic prayers, two newly found formulae and a new rule for establishing the times of prayers would be discussed. These matters have been exploited from four texts, still preserved as manuscript: (1) Siyyid Diya al-Din Shushtari’s Sad Bab dar Macrifa al-Asturlab, (2) Biruni’s ’ Isticab fi cIlm al-Asturlab, (3) Muhammad Madjd al-Din b. Zayn al-Din Muhammad Hamidani’s ’Anis al-Tullab fi Macrifa al-Asturlab, and (4) an anonymous treatise named Al-’Isticab li-’l-cAmal bi-Sadr al-Waza wa-’l-Jina al-Ghurab. In the end, the accuracy of the numeral results derived from those formulae would be presented, by making a comparison with each other as well as with the standard rules.

Iqala (cancelling of the contract) is a legal act that is formed by sides' satisfactory contract and makes it breakup. Imami, Hanbali and Shafei Jurists revocate the Iqala.Hanafi Jurists account Iqala revocation into sides of contract, but a new transaction into outsiders. From the Maleki jurists viewpoint, Iqala is a new transaction, but civil code accounts the Iqala Tafasokh (breaking up by sides of contract). It seems that by reason of satisfaction, which is principal element and nature of the contract, Iqala is an indeterminate contract. Unlike the views of maleki and hanafi jurists, Imami, Hanbali and Shafei Jurists believe that Iqala doesn’t make shofaa. According to some jurists, on the base of being a new contract of the Iqala, it is possible to increase or decrease of the saman (recompense of the transaction). On the base of being a transaction of Iqala, it is not possible to breakup (Iqala). On the base of being a new contract of Iqala, perishing of the Avazein (price and its subject) or one of them, suppresses to breakup (Iqala) the contract. Maleki and Hanafi jurists allow the Iqala and making an option in that; but Imami, shafei and Hanbali jurists believe otherwise.