فصلنامه فقه و اصول
پیاپی 106 (پاییز 1395)

Internet panderism, in today’s society, is a crime which, due to technological advances, has spread significantly and perhaps, in comparison to traditional panderism, it causes far more losses. Since it is unprecedented, the ruling of internet panderism has not been considered even by contemporary Islamic jurists. After mentioning some examples of internet panderism and a detailed review, the authors have relied on arguments such as the conduct of wise and basis emendation to prove that internet panderism is a crime. They have, finally, invoked the absoluteness of Abd Alla Ibn Sanan tradition and basis emendation and concluded that since the requirements of panderism with prescribed punishment (haddi panderism) are satisfied in such panderism, internet procurers will be punished by prescribed punishment (had) of panderism, if they bring individuals together with the intention that they commit illegitimate acts of adultery and sodomy.

Non-authority of “alidjma almadraki” (idjma with known origins) is a topic frequently raised in the Usulis’ contemporary literature. In this paper, the authority of “alidjma almadraki” has been studied through revisiting this idjma since the introduction of idjma in general by Shia scholars up to the present. The results of this study show that based on all foundations raised to prove the authority of idjma (hiss (intuition), lutf (benign), hads (surmise), etc.), one may assert that such idjma has authority or at least plays an important role in determining the minor premise of apparent meaning of sharia evidences and compensating for imperfection of their indication. Therefore, one may not consider idjma invalid and exclude it in deducting sharia percepts merely because its origins are known.

Although Mohaghegh Khorasani has raised the impossibility of replacement of certitude as to subject by authorized conjectural proof (amara) due to the impediment of conjunction in consideration; Sheikh Ansari, while rejecting the replacement of certitude as to attribute, has accepted the replacement of declaratory certitude. Some Islamic scholars believe in classification, according to the basis they have adopted about the authority of authorized conjectural proof (amara). However, in Imam Khomeini’s view, since the authorized conjectural proofs (amarat) are intellectual, their replacement is negative proposition with empty subject. Such an opinion is based on taking into account the proof of authority (hodjia) of authorized conjectural proof (amara), but if the discussion is focused on a proof in which certitude is an element, the quality of taking into account of the certitude in the subject must be considered. Since certitude rarely occurs as a perfect manifestation i.e. sentimental knowledge, the rareness of its occurrence in the eyes of the wise, leads to the joining of conventional knowlwdge to perfect knowledge whose consequence is replacement of, in addition to certitude as to subject, certitude as to attribute by authorized conjectural proof (amara).

Alternate of the usurped property is a compensation paid to the owner after unavailability of usurped property. The Iranian Civil Code, following the Islamic scholar's famous view, has principally accepted the payment of this compensation but is silent as far as duties and rights of owner and usurper are concerned; hence the judge's obligation to refer to valid verdicts (fatawa) in this regard. In this article, the authors have attempted to analyze the duties and rights of usurper and owner from the perspective of law and Islamic jurisprudence. A review of the rules on the alternate of usurped property indicates that delivering the said alternate does not extinguish the owner’s right to demand the usurped property and after the removal of unavailability, he is entitled to demand the usurper to return the usurped property. On the other hand, after receiving the alternate, the owner of usurped property may exploit it in any way and, in return, is may not demand compensation for usurped property benefits. In case the alternate is transferred by owner to a third party, the usurper is, after restituting the usurped property, entitled to receive its just mean or price and in the exchange of the usurped property and its alternate, despite the famous view, the right of lien belongs to the usurper.

The increasing and unlimited cases of burdensome dowries beyond the husband's solvency, leading finally to the enforcement of dowry and divorce, had led some commentators to fix a certain maximum for dowry. The authors, in this article, intend to find a proper theory to resolve this matrimonial problem through reviewing the earlier and later Islamic jurisprudents’ opinions. Although according to the majority of Islamic jurisprudents’ viewpoints, dowry is determined by agreement, there are Islamic jurisprudents who have objected to such agreement and their opinions involve some sort of strategy in fixing the dowry maximum. The author believes that in fixing the dowry maximum, it is better to prefer the sharia’s side i.e. sharia dowry, over the custom side i.e. customary dowry and in fixing the dowry, respect the level of Mahr al Sonna, so that while obeying the sharia’s orders, the dilemma of this age i.e. determining overwhelming dowries often beyond the husbands ability to deliver is contained.

According to the prevailing view in the Islamic jurisprudence since breastfeeding is not mother's duty, she is entitled to demand wage from her husband for breastfeeding her child. In this article, the authors intend to prove, through reviewing the evidences of this view and the alternative one, that there is a meaningful relationship between the following phrases: “if they breastfeed for you, pay their wage” and “ their maintenance and clothing must be borne by father” and that wage has no meaning other than meeting mother’s essential needs.
This study has been performed in an analytical-descriptive method and the information was collected in library research method.
After explaining the Quranology concepts and bases of the discussion, the Islamic jurisprudence texts will be analyzed and finally one of the raised views will be preferred over others.
The conclusion is that breastfeeding is mother’s duty. During the marriage, mother is not permitted to demand wage from her husband in return of breastfeeding, unless the husband has consented to breastfeeding. After separation, mother is still obliged to breastfeed her child, but child’s father is bound to satisfy mother’s needs (food and clothing) in exchange for this service.

“Preventing an evil takes priority over securing an interest” and preferring the prohibition side is among discussions raised by Usuli scholars and has been accepted as particular affirmative proposition; the said priority is known among Islamic jurisprudents as “ preventing an evil takes priority over securing a benefit” in whose … is the contrast of evil and benefit. Four interpretations of the said priority may be analyzed, the fourth of which i.e. the contrast of benefit and evil, despite being ignored by Islamic jurisprudents, is qualified to be regulated. Furthermore, in the author’s eyes, the first interpretation of this priority deducted from the rule of reason is also qualified to regulated provided the four following elements are present: type of duty, type of obligation, quantity and quality of probability.