ماهنامه معرفت
سال نوزدهم شماره 7 (پیاپی 154، مهر 1389)

Although one of the important duties of prophets has been warning and annunciation, warning has always been more effective than annunciation. Fear is a more efficient force than encouragement in all spheres of human's life. This is also the case for spiritual affairs. Fearing punishment of the hell is much more effective than glad tidings, encouragement and reward.Contrary to findings of psychology which have absolutely reproached fear, regarding it as a great sin, Quranic teachings regards a positive role for fear in human's life. In many Quranic verses, the motivations of fearing God have been stressed through mentioning afflictions and punishments, and the people are guided towards God Almighty through fear and alarm.

The present paper deals with investigating, identifying and supporting civil rights as some of the features of the jurisprudence of the Prophet's Household. In the jurisprudence of the Prophet's Household, civil rights have been greatly stressed; the following instances are some of them:a) Jurisprudential rationalism far from any extremism or negligence;b) Legitimacy of criticizing the Prophet's companions, and attaching no absolute scientific authority to them in the jurisprudence of the Prophet's Household;c) The Shiite thought system and its independence from the corrupted governments;d) Concern for justice in Shiite jurisprudence and illegitimacy of oppressive governments;e) Authoritativeness of Imam's way of life with no ban on writing down the Prophet's sayings;f) Openness of Legal Reasoning throughout history and the scientific authority of the Prophet's Household; and g) Shiite political jurisprudence.

Pragmatism refers to a thought formed on the eve of twentieth century in America. The pragmatic philosophical approach, linked to the name of William James, and extended by John Dewey, Holmes, Roscoe Pound and others, pays no attention to ideals and conceptions, and searches for truth in their practical outcomes. This thought has some consequences in all human sciences, including law. The followings are among the most important consequences of pragmatic approach, which has posed some basic challenges in law as well: excessive reliance on sense and experiment, identity of truth with expediency and giving a beneficial interpretation of it, denial of objective truths, relativism and excessive humanism. The present study uses a theoretical approach and a documentary study method.

Asylum and seeking a proper covert to flee the threatening dangers is as old as human history. It is also among the topics discussed in Imami jurisprudence and international law. The following reasons are among the reasons for conducting the present research: detailed precepts and rules about asylum in jurisprudence, clear reference in the holy Quran and Islamic traditions to the right to asylum, and the importance of the refugee's rights. In international law, the refugee's rights have been emphasized. Despite these accentuations, formation of conventions, and taking various measures in this regard, the states receiving the refugees do not feel bound to observing these rules due to lack of any strong executive guarantees. Consequently, we see many refugees in the world. This article uses a theoretical and documentary approach to investigate the basis of asylum in jurisprudence and international law, and discuss the mutual rights and duties of the refugees and the states receiving them.

The International Law Commission introduced the concept of state's international responsibility into the modern literature of international law as a draft. Attributing responsibility to a state that violates human rights is not contingent upon having the primary conditions of establishing a government. The usurper state of Israel has been the cause for tumult, war and bloodshed in the Middle East and the holy city of Quds for more than six decades. International responsibility of Israel is among the minimal concepts of the modern international law and originates from philosophical bases of international law, and is consistent with religious bases as well. Recording the evidences and documents of crimes of Israel is considered as recording the material elements of the crime committed, and is legally important. The present article uses a theoretical approach and investigates the documents to deal with the Israel's international responsibility.

The present article aims at identifying the rights of family members based on Islamic sources and their role in efficiency of family. To do so, it uses a descriptive-analytical method to extract and present the verses and traditions related to family. The obtained results show that religious sources have defined rights for each of the family members (wife, husband, children, parents), and have stated some duties for other members in return for those rights. According to religious sources, observing the rights of others and performing one's duty, together, lead to family efficiency. KEY WORDS: A Jurisprudential Study of Sexual Rights of Wife and Husband in Islam

Couples have some mutual rights the observance of which is necessary for a better relationship and a more stable conjugal life. A group of these rights is composed of sexual rights, which have a considerable role in persistence of conjugal life. In Islam, these rights have been paid attention to. By identifying these rights properly and observing them, we may experience a more stable conjugal life while answering some questions posed in this regard. The present article uses a descriptive-analytical method, and refers to numerous Islamic sources as well as some scientific findings to investigate the sexual rights of couples in Islam, and answer some questions posed in this regard. The findings of the study are as follows:1. None of the spouse's sexual rights has been ignored in Islam, and each of them has their proper duties and rights;2. In cases where the wife is sexually hot, needing more than one instance of sexual satisfaction in a four-months-period, the husband may be obliged – according to the principles of 'no harm's and 'no impediment's – to satisfy his wife or divorce her so that she would suffer no harm or impediment;3. Scientific researches also prove that the sexual rights defined in Islam are consistent with general nature of men and women.

For the justice to be realized or a judge to observe impartiality, the legislator has provided different arrangements in the Civil Procedure Law. In this regard, as the objection of rejecting a judge, according to the paragraph 'd' of clause no. 91 in the procedure law of Public courts and Revolution courts in civil affairs, the judge could not have pronounced any judgments as the judge, arbiter or expert on the subject of action. In this way, the impartiality of the judge would be realized, and justice would too. This study aims at investigating the conditions for rejecting a judge based on his lack of pronouncement on the subject of action. It has used analytical method and library sources and taken into consideration judicial verdicts as well as deliberative opinions of legal office of the Judiciary. The followings are the results obtained: the phrases 'previous pronouncement' and 'the subject of action' are ambiguous as to considering a case qua a judge, and a pronouncement is seemingly liable to prohibition only if it is pronounced in the edictal subject of the action and is effective in the substantive decision-making.

The present article deals with an investigation and analysis of confiscating immovable properties and the related earnings, profits and products, as well as its various related aspects. Civil Procedure Law has referred to the law of execution of civil Judgments the confiscation of properties, both movable and immovable, as well as counting, evaluating and preserving the confiscated properties, and confiscating the defendant's employment rights and his immovable properties available to the third party. Therefore, confiscation of movable and immovable properties must be conducted according to the rules of executing civil judgments. The present article uses a theoretical approach and an analytical and comparative method for studying positive laws and rules, especially the law of executing civil judgments and the new bylaw of executing the contents of enforceable official documents (enacted on Shahrivar 11, 1387). The article aims at identifying and clarifying all aspects of confiscating immovable properties in newly enacted laws.

The Islamic Criminal Law, in its clauses number 267, 549, and 551, deals with regarding as a crime the fact of helping those sentenced to retaliation to flee. These clauses only state that the agent helping the murderer to flee has the duty to surrender the murderer; otherwise, he would be imprisoned. Besides, if refraining from surrendering the murderer lasts up to his death or – as the clause no. 267 states – leads to impossibility of surrender, or – as the clauses nos. 549 and 551 state – to the refusal to surrender, the agent would be liable to paying the blood money. This is so while these clauses do not particularly deal with the rights of blood avengers and those who help the murderer to flee, whether in the time of liability to surrender the murderer or after receiving the blood money. Aiming at winning the legislator's opinion to change the abovementioned clauses, the present article uses a theoretical and documentary approach, refers to authentic jurisprudential sources, and analyzes and states the gaps existing in those clauses.