عنوان مقاله [English]
There is no disagreement about the recommendatory nature of giving gift. Now the question arises here as to whether it is permissible to give a gift to the judge considering his sensitive position. The present article, using a library and descriptive-analytical method, has established that the Islamic jurisprudents are disagree on this matter: some of the latest Shi'a jurisprudents hold that it is absolutely lawful. They believe that the narrations stating the unlawfulness of giving gift are weak and cannot be argued upon. In contrast, most of Maleki jurisprudents have regarded it absolutly unlawful for the prohibition of what may lead to committing sin. Some other like Abu-Hanifeh and his pupils hold that it is abominated; in their opinion, prevention stated in the Clear texts express abomination but not prohibition. Most of the earlier Shi'ite jurisprudents, nearly all of the Shafe’i and Hanbali jurisprudents, some of the Hanafi and Maleki jurisprudents hold that it needs explanation and believe that giving gift to the judge in different conditions have different verdicts. It seems that this opinion is superior, and the criteria for explanation are the intention of the gift giver and the judge, the existence of former relationship between the judge and the gift giver, the gift giver’s having a case before the judge, the existence of former history of giving gift to the judge by the gift giver, and the amount of the gift paid to the judge before and after being appointed as judge.
ـــــــــــــــــــــ (بیتا). المجموع شرح المهذب، بیروت: دارالفکر.