FIGHE MOQARAN
Year:2015 | Volume:3 | Issue:5 |Papers Count:7

 “Expediency” is a widely used and familiar term in jurisprudence and its principles. From the perspective of Islam, it is referred to as any action that leads to material and spiritual benefit for individuals and the society. From the perspective of jurists of Islamic schools, “expediency” is essential to the legislation of Islamic rules and regulations – although there is no agreement on the extent of this role. The dominant view, the perspective of most jurists, on divine rules is that they include variable and fixed ones. In this perspective, divine regulations – especially prescribed corporeal punishments – do not change under any circumstances and are binding at any time and any place. Contrary to this perspective, some other jurists consider that expediency conditions are effective in Islamic rules. The latter believe that regulations are established on the basis of good and evil and the purpose of enforcing regulations is to achieve expediency. In general, expediency in the jurisprudence of Islamic sects can be taken in this sense in relation to the implementation of punishment, especially prescribed corporeal punishments, in addition to legislation. In other words, in cases of conflict between the grounds of religious orders and the potential impact of circumstances against the actualization of orders, the ruler can resort to secondary rules and expediency in order to suspend certain prescribed corporeal punishments and replace some of them with some alternatives. Therefore, it is necessary to consider expediency conditions in relation to corporeal punishment and the quality of its implementation with regard to the requirements of time, place and persons of punishment and in compliance with religious narratives and the opinions of jurists. Moreover, in case of doubting the existence of expediency conditions, prescribed corporeal punishment would be subject to suspension.

In financial relationships where one party becomes accountable for making a payment to the other party based on a contract such as debt or based on other issues such as usurpation, there are cases in which the object of liability is not determined or agreed on. In these cases, the ruling in Islamic jurisprudence and statute laws is liability against fungibles in case of fungible objects and liability for value in case of non-fungible objects. Obviously, the implementation of this rule depends on the identification of fungible and non-fungible properties. Even a bit misconception in interpreting these two concepts will lead to different referents in reality, which will cause differences in the rulings as well as adverse legal and economic consequences in society. Therefore, the present paper is an attempt to analyze and evaluate the concepts of fungible and non-fungible. Via a comparative approach and a descriptive-analytical method, the paper addresses these concepts in legal terms besides evaluating the different perspectives of Islamic jurists and scholars. Based on the findings of this study, a fungible property refers to an object whose instances and features are so close that do not cause reasonable individuals to have different tendencies and motivations towards its various instances or individuals. A non-fungible property is the reverse.

Among the most important actions at the end of the Imamiyya Hadjdj pilgrimage rites is Tawaf-al-Nisa. However, jurists of important Sunni schools believe that another Tawaf called Tawaf-al-Wida is obligatory. Defining the relation and balance between these two types of Tawaf and reviewing their properties from various perspectives are an issue deserving study. Despite its significant functions in forming a better image of the religious beliefs of each Islamic sect and responding to questions regarding the duality or oneness of these types of Tawaf, this issue has been mostly neglected by Muslim scholars and researchers in the field of jurisprudence. The current study aims to highlight the points of divergence and convergence between these two types of Tawaf. Clarifying the differences such as the appellation, the onset of action, those under obligation of these two types of Tawaf, obligation in al-Umrah al Mufradah and the effects of these two types of Tawaf, which remove the assumption that they are one and the same despite apparent similarities in the way of performance, conditions, obligations, universality and type of necessity, is the result of the present study.

Marriage is the legitimate relationship between a man and a woman. With its root going back to humanity’s creation, marriage affects the life of humans permanently. Some men and women are eternally forbidden to unite in marriage; that is, it is considered prohibited for them to get married to one another. The Imamiyyaand Zaydiyya jurisprudential systems, as two known schools of law in Shiism, have similarities and differences with respect to such prohibitions. Prohibition due to blood relationship(relationships caused by legitimate marriages, illegitimate relationships, blood relationship caused by artificial insemination, the ninth divorce, illegitimate relationship with a married woman, heinous acts, and so on) exist in the Shiite jurisprudence and law, which constitute the common ground between the Imamiyyaand Zaydiyya jurisprudential systems. On the other hand, prohibition due to marital relationship such as relationship by marriage, foster relativity with the fulfillment of its special conditions, Li’an (separation by invoking curse) and illegitimate sexual relationships are among certain forbidden instances in the Imamiyya jurisprudence, but the Zaydiyya jurisprudence disagrees with it in some cases. In this regard, Civil Rights in Iran, as derived from the basis of the Imamiyya jurisprudence, is in some respects different from Civil Rights in Yemen, as developed under the influence of the Zaydiyya jurisprudence.

Marriage prohibitions have been treated by divine religions other than Islam too but not with the same extent and detail. Among the issues concerning marriage prohibitions, simultaneous marriage with an aunt and her niece has led to diversifying perspectives in the Islamic Ummah. The entirety of Sunni scholars plus Shaykh Saduq, as a Shiite scholar, have acknowledged this type of marriage as generally and absolutely forbidden/ unlawful by reference to Hadiths quoted from the Prophet and the Imams of the Shia.  Dawud Al-Zahiri, Uthman al-Batti, the Khawarij and some Imamiyya jurists have acknowledged this type of marriage as absolutely lawful based on Verse 24 of Surah al-Nisa’; hence, rejecting the above mentioned Hadiths as incapable of modifying or specifying the ruling given by the Book of Allah. The majority of Imamia jusrists have preferred distinguishing the cases and issuing the rules suitable for each, and, by reference to Hadiths that have been quoted from Shiite Imams concerning this distinction, consider the Hadiths that point to the absolute unlawfulness of this type of marriage as modified and specified by other ones. The common ground between the majority of Sunni and Shiite scholars is the necessity of paying respect to aunts and their position in the family. Sunni jurists have preferred the prohibition of this type of marriage for the sake of respecting blood ties, but Shiite jurists have considered it as lawful and dependent on permission and distinction of cases for the sake of respecting moral values. The results of the present fieldstudy, which was conducted in December 2015 in the form of a questionnaire survey and covering the years after 2011, suggest a lack of social support for this type of marriage, as explained in detail in the body of the same paper.

In all its variants – including Haj Mut’ah, Nikah Mut’ah, and Divorce Mut’ah – Mut’ah means temporary and unstable benefit. The present study examines Divorce Mut’ah (the conditions for determining and collecting the financial rights of a divorced woman), which is often interpreted wrongly as Mahr Mut’ah, in terms of semantics, examples, and the reasons explaining its legitimacy and determining its obligation or desirability in the form of a contrastive analysis of Shia and Sunni perspectives in order to achieve a synthesis of the reasons for its obligation and desirability. Since Islamic texts such as the Quran and Hadiths (Sayings) refer to Mut’ah only in relation to the reasons for divorce (Talaq) separation, the present study, using a descriptive-analytical methodology, infers the possibility of Mut’ah in other modes of separation too, such as Faskh (termination), Li’an (invoking curse), Irtidād (apostasy), etc. Despite the common view that considers a man’s financial situation as the criterion for determining the quantity of Divorce Mut’ah, this study evaluates the possibility of a woman’s financial situation and character for determining the quantity of Mut’ah.