مجله پژوهش های فقهی
سال دوازدهم شماره 2 (تابستان 1395)

Practice of constitutional law considered one of the most important fields for completion and removal of extant gaps in written constitutions, and despite some initial oppositions, today, there’s no doubt regarding the role and position of its effective index. Important dimensions of practices of constitutional law subordinate to the general theory of the governor on the function of the legal norm, and among evidences supporting this, we can refer to the jointly played role of material and spiritual elements in itsdevelopment and effectiveness. The degree of effectiveness of constitutional law and its approximate effect on the available legal texts, has laid the ground for the presentation of a well-known division of this concept by which the three functions of practice, namely interpretive, complementary, and modulatory practice have become distinct from each other. In the meantime, according to some similarities among development process and effectiveness of judicial procedures and practice of constitutional law, these similarities can be considered as the theoretical bases of the jurisdiction development of constitution courts and a key factor for paving the way for the more effective fulfilment of the role of these courts.

According to the Article 167 of the Constitution ‘the judge is bound to endeavor to judge each case on the basis of the codified law. In case of the absence of any such law, he has to deliver his judgment on the basis of authoritative Islamic sources and authentic fatwa.’ There is no dispute about that the judge can (and even has to) refer to authoritative Islamic sources. In penal cases, however, some people agree and some others disagree. Those who agree make reference to the above Article and those who disagree to the Article 36 of the Constitution. Because of certain problems in referring to fiqh (jurisprudence), some scholars think that this principle dose not rule penal cases; and, where there is no law, they insist to acquit [the charged].
In the present article, attempts are made to explain the subject of dispute; and, then, the author goes to judge between proponents and opponents. In this regard, the Islamic punishment Code 1392/2013 has been discussed and emphasis has been put on the point that in penal cases, fiqh can be referred to; though, in this regard, there are certain points which should be taken into account.

An examination of the sources of Islamic jurisprudence demonstrates that determination of the discretionary punishment has been given to the expediency of judge. The explanation of the quality of recognizing discretionary punishment by judge, undoubtedly, is one of the important subject matters by which the community punishment's station in the Islamic penal policy is demonstrated. The present study using a descriptive–analytical method, has examined this matter and has found out the judge should "discover" the quality and quantity of discretionary punishment by the considering special criteria and norms and sometimes he may find community punishment as the most advisable reaction with regard to that criteria and norms. Therefore, necessity of the judge's discovering reaction demonstrates necessity of exercising community punishments. But still, it has not been completely prepared that's conditions and necessaries in penal policy of our country.

Expanding and much influence of expert viewpointof specialists in different directions of jurisprudence and especially thinking in increasingthe influence of specialization speed of sciences and skills in jurisprudential and legal inference are representative of importance of expert view. In the jurisprudential and essential authorities of Imamate; the legal reason of viewpoint of expert is firm on the basis of reasonable nature of confirming legislator. Different matters such as mere expertise; reason order;confidence and cancellation of violation possibility and also cancellation of quality and discovery of general validity have been expressed as criterion and standard of the wise in the course of this conduct. The present essay through the study and expression of mentioned criteria has accepted the cancellation of error possibility and validity acquisition and self-confidence as the principal criterion of nature. And after researching some conditions like justice and plurality; validity acquisition; inference and deduction from preliminaries of guess; most learned and life and… as the condition of validity of expert view, the criterion selected is regarded in authenticity of expert viewpoint. On this basis; by expressing the reasonable nature and essential difference of witness and expert view, validity acquisition and confidence - with the exception of cases mentioned with special reason - is introduced as the mere condition of validity.

The religious jurisprudence laws are one of the issues of religious rules and principles which can be researched from two aspects: the first aspect is that the available laws should be restudied or some new rules should be researched and the second aspect is that from the outside viewpoint the religious jurisprudence law should be researched and the philosophy of the laws should be compiled. The important problem in the second aspect is which issues should be researched from the viewpoint. In this article, with an emphasis on the religious jurisprudence and rational theology sources and the use of their methods, the researcher has primarily tried to compile a set of the important issues of the philosophy of religious jurisprudence laws and according to the domain of the article he has secondarily made an effort to investigate the issues briefly and raise his proposed hypothesis on the issues and at the same time to prove the hypotheses with considering the conditions of content of the article.

The question about the nature of the relationship between jurisprudence and ethics in the atmosphere of the interrelated interaction of the Islamic sciences sometimes leads to some contradictory and dissimilar theories. These can all be categorized into four groups, which regard unity and unanimity, conflict and inconsistency, inclusion of ethics in jurisprudence, and distinction and dependency. These then can be evaluated.
Through adoption of an analytical-comparative method with an emphasis on equality of the two foregoing phenomena, the present study set out to examine the favorability of the aforementioned four categories, which resulted in finding support for the theory of distinction based on agreement and dependency.
The main basis of the study is identifying the distinctive features of the 8 cardinal principles of jurisprudence and ethics. Different dimensions of these will be discussed in a case by case manner, including status, nature of knowledge, topic, the argument system, realization conditions, goals, scope, and method are the main distinctive features of these two Islamic sciences that will be talked over.
A report on the asymmetrical and agonizing development of the knowledge of ethics in its historical and intellectual origin compared to its long-lasting companion, i.e. jurisprudence, as well as enumeration of some of their basic similarities are among other related and effective discussions of the article.

In the Quran, only two verses speak about inheritance of Kalaleh siblings (Kalaleh), verse 12 Surah Nisa and the other verse of 176 Surah Nisa. In this context, two issues discussed: First issue, between the first and second caliphs in the concept of siblings, the first caliph says: sibling (Kalaleh) is who has no father and no son, While the latter caliph says that: sibling (Kalaleh) is who has no father, and he has the other judicial decree) fatva (that he stop ) no spicial idea. ( But it is clear that the judicial decree of second caliph is not correct because when there are children, its the first level turn not the second level, which include brothers and sisters. And the second issue: in the two verses speaks about two different issues and this show is a kind of conflict, but according to narrations of the Ahlul Bayt (as) this conflict is resolved: This suggests that the verse 12 is about siblings of mother and verse 176 is about siblings of parents or siblings of father.

Proving “the validity of lexicologist’s statement” is an important matter in the Principles of Jurisprudence which has not been considered yet in the perspective of the realities of the lexical history. The word “lexicologist” also has not been defined yet. Both of them will be defined in detail in the present text. The history of lexicography indicates that the Arabic words have been communicated to us properly and completely. The history is significantly confidence-building and although in some cases a number of the scholars of the Principles of Jurisprudence have been working efficiently to prove “lexicologist’s statement” in different ways like lexicologist’s proficiency, Insidād e-Ṣaghīr, the practice of the wise people, and Ijmā٫ (unanimous consensus of Mujtaḥidīn), it is not sufficient. Field studies and historical investigations of the Arab lexicography make it clear that “the clear history of Arab lexicography, the proper communication of the words, the Arab’s original explanations” and “lexicologist’s proficiency”- of course in a new explanation- are two major evidences to prove the validity of the lexicologist’s statement.