فصلنامه فقه و اصول
پیاپی 84 (بهار و تابستان 1389)

Having regarded as discredited the jurists’ arguments, one of the researchers has disproved the devotionality of zakāt (legal alms) and khums (one fifth levy) so as to thereby remove one of the most critical barriers for implementation of these two practices. Although some evidences of the jurists in proving devotionality of zakāt and khums seem to be not creditable, there are other evidences – particularly from among the verses and traditions – that prove their devotionality. In this article, after making two introductory remarks, the writer presents and analyzes the evidences approving this claim, answers the questions in this respect, and then brings up other criticisms on the above-mentioned research.

One of the newly emerged issues in global communications and cyberspace is Internet plagiarism, which due to the lack of a codified law is unfortunately increasing in the number of its perpetrators. On the other hand, we know that the nature of Internet plagiarism, which is committed within the cyberspace, is different from that which takes place in real world. Thus, the question comes up as to whether the Internet plagiarism is the same as the theft commonly known in jurisprudence. How are the conditions materialized? Is in Internet plagiarism, as in physical (property) theft, the proprietor deprived of their property? Are data and information considered to be property? Is cracking a code (a password) an evidence of violation of privacy? What is the penal punishment for Internet plagiarism? Is it ḥadd (prescribed punishment) or ta‘zīr (discretionary punishment)?In this article, we aim at answering the above questions while elucidating the nature of Internet plagiarism, and eventually, considering Internet plagiarism to be liable to ta‘zīr merely because of the non-materialization of one of the conditions for theft – i.e. physical appropriation – as well as presenting a new method in discretionary punishment of a plagiarist user.

Methodology of Islamic principles (‘ilm al-uṣūl) is a dignified science serving to understand religious texts; on the other hand, however, this science is indebted to Holy Qur’ān for its credibility and authority. The Qur’ānic verses play a special role in validating and authorizing this science. This role is to be viewed in terms of foundation-laying, as āyāt al-uṣūl (verses of principles) are considered as manifestation of this foundation-laying.The studies indicate that despite the importance of identifying, gathering, and analyzing this category of verses, no inclusive and comprehensive research has so far been done in this respect. Besides, deliberation in this field brings about the conclusion that utilization of verses of principles has not enjoyed an increasing trend in the course of Islamic history. While presenting a brief history of the uṣūlī scholar's utilization of the Qur’ān in their adducing and arguments, this article would display as an example the efficiency of the Qur’ānic guidance concerning the principality of exemption (iṣālat al-birā’a).

The present article is a new attempt in elucidating the quiddity of the attitude (sīra) of the intellectuals and its relation to the rational judgment, which is discussed on two main bases. The first basis is dedicated to elucidating the sources of attitude and the theologian's viewpoints in this respect are examined. Also, while presenting the viewpoints of the philosophers and theologians on the nature of intellect, the differences between attitude and intellect in terms of origin and source are studied. The second basis is dedicated to the criteria of the attitude of the intellectuals in terms of creating science or providing assurance, and the distinction between attitude and intellect is taken into consideration from this aspect.

Refinement of the basis of the ruling (tanqīḥ al-manāṭ) is among the important approaches in the process of legal reasoning and inference of legal rulings. By applying this procedure, one can achieve the ruling criterion and be assured about it, and thus, contrary to the analogy in deductive form (mustanbit al-‘illa), it is accepted by the Shī‘a jurists.Those who have sufficient experience in inference of legal rulings and enjoy mastery of legal reasoning can undertake this task by annulment of specification using the method of probing and division.

One of the most important legal issues debated among the jurists is whether it is necessary or unnecessary to investigate the justice of the anonymous and to what extent. The renowned majority of the jurists maintain that if the anonymous individual performs an action which is to be subject to justice, it is necessary to investigate about his justice, but they disagree on the extent [of investigation]. Some jurists have also said that investigation about a Muslim's justice is not considered a sin qua non. In this article, first the above viewpoints are examined, and then, given the result of the distinction between mediative and topical notion of justice, the writer presents a criterion for the degree of investigation about justice in different cases.

Nowadays proposing high dowry payments has become widely common in Iranian society and certain other societies in order to give more validity to marriage, since the common people believe that if the dowry payment is higher, the marriage bond would be stronger. Irrespective of the morally negative aspects of this customary practice, proposing high dowry payments may lead to legal repercussions, as well. The juridical situation of this type of dowry payment is the topic dealt with in this article. The research hypothesis is that high dowry payment is not in itself a cause for its invalidity; but if the dowry proposed is higher than what the man can afford, so as the woman knows at marriage that he would not be practically able to pay it off, she would not have the right to have him imprisoned. In this research the lawmaker is suggested to consider as a proviso a ceiling for the implementation of article 1085 of the civil law in regard to dowry payments.