فصلنامه حقوق اسلامی
سال یازدهم شماره 3 (پیاپی 42، پاییز 1393)

Each and every epistemic system of law has its own main and fundamental rules which plays an important role in depicting the structure of legal system, providing solutions for newly-emerged problems, interpreting legal rules, and picturing new institutions suitable to fulfill needs. These rules are recognized and developed out of the legal system and through a monitoring and critical approach so that, at higher levels, they may be referred to as positive laws or statutory laws or as an origin to issue a verdict in non-formulated legal system. The relevant methodology may be studied as the methodology of fundamental rules of Law in the sense of the way that fundamental rules are understood and developed according to various theories and schools. To do this, at first, attempt is made to study the possibility of referring to fundamental rules according to various legal schools and the legal system of Islam. Then, various views to the way of delimiting legal fundamental rules, separating them from each other, providing expedient forms to understand their contents and the processes through which they are formed will be studies, and the contents of fundamental rules will be discussed. In the next step, in views such as ‘homing’, reason and revelation have been introduced as the sources of fundamental rules. Then, four theories concerning methodology of finding fundamental rules have been studied. Finally, methodology of developing fundamental rules and the way in which particular legal rules may be extracted from them will be spoken of in two approaches of horizontal and vertical development.

Since issuance of the Universal Declaration of Human Rights and emphasis put on equality of men and women’s rights in it, some activists of human rights as well as a group of defenders of women’s rights have criticized the theory of “desert justice” and the differences existing in the legal system of Islam in particular in the field of family rights, and considered such differences as being unjust. Some Muslim religious Innovators, keeping with them, have asked to make a revision in women rights to realize legal justice in the sense of “equality justice”. The present writing tries to explain the theory of desert justice, study the relation between justice and legal differences in the field of women’s issues, and assess the claim that they are unjust.

There lies a master key in the theory of relativity in citizenship rights to adjust the legal system at individual and collective levels. In citizenship rights, the theory of relativity is an objective analysis of the external world in the same way that theory of absoluteness in ‘natural rights’ is based on an internal and mental principle. Influenced by each other and related to each other, the two depict two dimensions of man’s being in the scene of life which cannot be separated. Since human rights may be divided into constant and variable, both kinds contribute in establishment of citizenship rights. That part of human rights, which find their identity and are polished in community, does not remain as time passes and place changes. Each society may prefer some elements to some other on the basis of priorities of its own collective happiness. Such priorities cannot be generalized; nor may they be experienced; and, they may vary from a society to the other. The only permanent element in these rights is human fundamental rights which, in collective life, may be limited and narrowed.

The present particle seeks to explain that ‘discerning the cause’ and ‘cancellation of specifity’ are, unlike ‘analogy’, among ways to interpret religious texts; and, as a matter of fact, they somehow extend the scope of subject. Their authority totally depends upon ‘isalat al-zuhur’ (authority of that meaning of the term which occurs to the mind first); for analogy is extending of a rule about a subject to some other and different subject; and for those who believe in it, it is among sources of legalization and not a way of interpretation. Tanqih al-manat (discerning the cause) discussed in the present article is one in which by ‘manat’ the subject of rule is meant; and such a tanqih al-manat is the same as ‘cancellation of specifity’. Since the two rules are not among sources of legalization but results of scientific experience and attempts made by jurists and Usulis, the methodology of the present article is referring to their opinions. In conclusion, it is said that ‘discerning the cause’ and ‘cancellation of specifity’ are different from analogy in terms of the basis of authority, methodology, and parts and, unlike the latter, the two former ones are juridical (and not usuli) in nature.

Bioethics is a new branch of applied normative ethics in which essential strategies to confronting challenges originated because of emergence modern biological technologies are explained. Thus, applying issues such as human cloning, embryonic stem cells, monstrous creatures, genetic manipulations, and biomedical tests on human subjects with unpredictable consequences has been the theme of bioethical studies in the recent three decades so that, through studies made about ethical theories and principles governing them as well as comparison made between them, ought’s and ought not’s in this field may be organized. Study of the reason behind religious prohibition of some bioethical issues (following ethical requirements provided to limit and prohibit employing them) has opened a new chapter in juridical studies concerning newly originated issues. Searching in traditional sources of Imami jurisprudence guarantees dynamism and its correspondence to the requirements of time. This search has given the author some reasons for prohibition and criminalization of bioethical issues. An expanded interpretation of the rule of “no harm” and prohibition of harming one’s own self or others as well as expedient approach to the social dimensions and consequences of applying these technologies and avoiding disordering the system and necessity of protecting it, have made religious prohibition of them in the field of bioethics possible and paved the way for criminalization in this field in the form of religious sanctions for things which are religiously sinful.

There are three key factors in legal rules: first, the fundamental factor (for example, that [the rule is] large-scale, general, and binding); the second is the functional factor through which subjects and instances are recognized and the rule is applied to them; and the third is the ultimate factor which is the same as establishment of order and justice. Also, as a fundamental factor, bindingness of legal rules is one of the most important characteristics of these rules. The legal rule may be analyzed through two approaches: intra-paradigmatic and comparison with the rival paradigm. The present writing explains what the legal rule is, explicates the relations between that rule and other rules, and puts it under some classification. On the other hand, epistemic principles of bindingness of these rules are analyzed, and attempts are made to elucidate why such bindingness is necessary according to various legal principles, and then these principles are compared with each other.