JOURNAL OF ISLAMIC STUDIES
Year:2008 | Volume:- | Issue:79 (ISLAMIC LAWS AND JURISPRUDENCE)|Papers Count:8

The author of the present article maintains that most of the jurists, in their elucidation of the nature of zakāt (legal alms) and khums (one fifth levy), have paid attention more on the individual dimensions of these two than their economic approach and social impacts. Thus, they have taken the devotional aspects of these two significant and effective legal entities for granted and have hardly reviewed the evidences on this issue critically. Although it is likely that special historical, spatial, and temporal elements or the eminence and high status of a great jurist or jurists have played a role in taking for granted zakāt and khums as devotional acts, it is attempted in this research to render a sound elucidation and then a critical review of the evidences and justifications presented in legal texts to prove these two significant and efficient terms to be acts of devotion, irrespective of the above elements and other similar effective factors, either personal, mental, or conventional. In the meantime, with the use of the few views and opinions of the jurists who have taken into consideration the economic dimension of zakāt and khums and have doubted their being acts of devotion, the author's presumption regarding their non-devotional aspects has been proved so that in this way both the barriers to their application and implementation can be removed and their age-old isolation done away with, giving a clearer manifestation to the dynamic Islamic jurisprudence and the pure Muhammadan legal law through objectifying the efficient and advanced rulings in this regard.

General principle of civil responsibility is one of the issues that have always been an object of dispute and disagreement among lawyers. The responsibility of the occupier of others' property is one of the instances about which the analysis of the fundamental ideas of civil responsibility requires special care and precision. Civil law has followed the well-known viewpoints of Imamite jurists in establishing this type of responsibility. In this article, the theoretical principle of this type of responsibility is examined with the use of analytical, theological, and logical methods. The outcome of this research has been an elucidation of its three basic theories, i.e., "judiciary politics", "prohibition of becoming wealthy in unduly ways", and "civil responsibility in its specific sense", as well as a further clarification of the strengths of the jurists' unknown viewpoints.

It is evident in Islamic jurisprudence and law that if a group participates in the murder of one person, the claimant of the murdered person's blood can demand punishment for all members of the group in retaliation (qisās) by paying the surplus of their blood money.Article 212 of the Islamic Penal Code asserts:If two or more people participate in killing one person, the claimant of the murdered person's blood can punish them in retaliation by the permission of the guardian; in case the murderers are two, the claimant has to pay each one of them half of the blood money; if they are three, he has to pay each one of them two thirds of the blood money, and if they are four, he has to pay each one of them a quarter of the blood money; and so forth for more participants.Some jurists have deliberated on this verdict, contending that the claimant of the murdered person's blood can demand retaliation (killing) of only one of the participants and the remaining others would have to pay the amount of blood money proportionate to their participation in the murder to the family of the retaliated person (‘Alam al-Hudā, Masā’il al-Nāsiriyāt, p. 533; Khānsārī, 7.344).In this essay, the arguments of both parties are critically reviewed. In such cases the best course of action as a precautious measure in preventing bloodshed seems to be avoiding, in case of expediency, to kill all the participants in murder.

Accepting the two hypotheses that legal law is subject to interests and abuses and on the other hand the interests and abuses transform over time and according to conditions and situations, change in rulings and religious duties is a reality that is bound to take place. Thus, the question that arises is how extensive this change can be and in what areas it will take place. Will there be a boundary for the "variable"? Does the "constant" have specific definition and limits?Taking for granted that there are "variable" rulings – irrespective of their range and topic – versus "constant" propositions, the writer of this article, while examining the primary incongruity between submitting to variables on one hand and the admitted tenets such as "the lawful of Muhammad [S.A.W.] will be lawful till the Day of Resurrection and his unlawful will be unlawful till the Day of Resurrection" on the other hand, has tried to bring up and elucidate the proposed or probable mechanisms in distinguishing the constant from the variable and arriving at a demarcation and definition for each one of them, and to weigh these mechanisms in the balance of criticism, and finally to see if it is possible to reach one or several of these mechanisms from among these collection of mechanisms in order to achieve a more distinct image of constant and variable or such an achievement is not feasible. In this article, the writer's hypothesis is the possibility of achieving specific mechanisms in this respect by utilizing the initial outlines based on distinction of areas.

The present article addresses the limit of legal distance [of travel] according to the lexical concept of travel and the content of traditions as well as the viewpoints of some jurists on the basis that the measure for realization of the distance traversed causing shortened prayer to be performed on legal travels is at least one day travel on ordinary route by public transportation in a way that it makes the traveler tired so as to shorten the prayer as a matter of ease and facilitation.

Adopted from popular verdicts of the Shī‘a jurists, the Islamic penal law has taken all six cases of the Muslims' blood-money as "genuine" and given the offenders freedom to choose from among any one of these cases.In the present article, the above-mentioned verdicts are critically reviewed in accordance with the criteria of legal reasoning (ijtahād) and the view concerning the originality of dīnār during the prevalence of money is defended along with mentioning the relevant reasons. On this basis, the reconciliation of various traditions on the counting of cattle, sheep, and silk cloth as blood money is explained. Furthermore, the irrelevance of the principles of blood-money itself and sufficiency of paying its equivalence is emphasized and finally the renowned view concerning the offender's choice from among the six options is criticized, a new view is provided in it place, and with some evidences the judge's choice is brought up.

In the field of religious researches, the traditions and narrations transmitted from the Infallible Imams (A.S.) in form of "single traditions" is regarded among the most important evidences and documentations. As we know, a large part of these traditions concern the non-jurisprudential rulings such as ideological issues, Qur'anic sciences and knowledge, historical matters, and the like.On the other hand, some Muslim scholars apparently, or rather explicitly, maintain that single traditions are not authoritative in the above issues and that their validity and authority are restricted to jurisprudential and devotional rulings.The present article, while critically reviewing this viewpoint and explicating its drawbacks, stresses on the inclusiveness of the single tradition and the encompassing of its validity in relation to the aforementioned instances (other than the ideological issues) and proves it as such.