مجله مطالعات فقه و حقوق اسلامی
پیاپی 8 (بهار و تابستان 1392)

In Islamic legal system, high ranking clergyman (mujtahid) attempts to deduce the legislator intention from accepted resources and to have reasoning through demanded method. According to students of principles (usul), accessing to the fact has three states: certainty, suspicion, and doubt. Suspicion is not proof except in the particular instances, and doubt is rejected too. Arguments and sources of verdict and duty don’t result in logical certainty. Thus, it is evident that certainty in the jurisprudence and law is not philosophical certainty. Scholars turn practically to other state which is sometimes similar to certainty and sometimes it is similar to the suspicion. In this paper, along with the explanation of nature of confidence in the views of students of principles (usuliun) and their notice to the certainty and suspicion, it is concluded that confidence is description contained in the common knowledge, as well as is description in the logical certain knowledge. In jurisprudence, obtaining the confidence is a criterion and the confidence that has been verified in jurisprudence contained in the common knowledge. Common knowledge is not suspicion; because unlike the common knowledge, it doesn’t have dogmatism and doesn’t create carnal immobility. It isn’t logical certainty, too; because the logical certain knowledge is conditioned to the accordance to the fact. Common knowledge viewpoint of the wise and religious law is the same usuli certainty that in the epistemology is considered thematic certainty. Thematic certainty is reasonable and justified certainty that is resulted from thematic and external contexts. These contexts independently make suspicion but in the inductive process, they convey a thematic certainty, and not logical certainty. Confidence, or say the exact expression, common knowledge based upon the confidence as the sole criterion of obtaining the verdict and distinguishing of subject, is used in the different section of jurisprudence.

Insult is among deadly sin and is considered lousy both logically and morally. However, some jurisprudents advocate and justify it using proofs from Quran and Sunnah. As a case in point, insult is approved, if it is to retaliate, which is known as verbal retribution or retaliated insult. In this study, the verses that have been used to support verbal retribution have been criticized and disproved. The used Hadiths have been spurned both in regard to their validity and justifiability. Moreover, it has been referred to a series of verses and Hadiths to prove that verbal retribution is not permissible. As a foundation, irrespective of the type of insult-whether without any causes or retaliated- and proving that insults are inherently bad and evil in Islam, impermissibility of verbal retaliation and minding ones words are considered as God's right, according to which both parties involved in exchange of insult are condemned to discretionary punishment.

For those who are familiar with the law, the first meaning which is understood from the term “territory” is the one which is referred to and discussed as related to the estates; lands, wells, subterranean canal (qanats), springs and the like. Nevertheless, what is discussed in this paper is a dialect’s territory and whether dialects and accents also have territories or not? Is it acceptable to ridicule a dialect or accent with the purpose of making a comedy show which can amuse and entertain some people? I have tried to show that there is such territory and no one has the right to enter that territory.

Commutative justice, in the philosophy of law, means giving the exact amount of everybody’s rights and achieves without interference, and distributive justice is concerned to distribution of property by state. Commutative justice theory, from a more practical perspective, means the necessity of balancing the parties’ rights in bilateral contracts and if it is blemished, it should be compensated by other legal principles. In Iran’s law, this theory is justified by arguments like rule of “waste of the object of sale before its receipt” and legal options. Whereas this theory is rejected, balancing the parties’ rights in bilateral contract will be broken.

Due to necessity of prevention of wasting human blood, God naturally places the Islamic ruler as the guardian of person who has no guardian. But does the ruler have all authorities that the blood guardian has? And can the Islamic ruler also perform all authorities as the blood guardian and can he change the retaliation into the blood – money or not? Regarding this issue, there are two well-known and unknown theories. According to the well-known theory, the Islamic ruler can forgive retaliation instead of taking blood–money, like other blood guardians on the basis of the two traditions of Abi Vallad, but he has no right of gratuitous forgiveness. According to the second theory, the Islamic ruler can forgive the murderer without taking the blood-money. This paper, in addition to expressing the above-mentioned theories, deals with sunni's point of view, that is correspondent to the well-known theory, and legislator view. Then, by contemplation on the well-known theory and on the basis of a tradition that considers Imam as wise and mature person (Aqeleh) who has no inheritor, and also as a result of including traditions that considers the blood-money which has no inheritor as a part of spoil of war (Anfal) on one hand, and views the Anfal as Imam's right on the other; this paper supports and strengthens the unknown theory.

The most important effective factor in conflict removal in Shi’ite narratives and traditions is traditions well-known as treatments narratives. This paper attempts to compare deceased author of hadaeq theory and the most important theories in collection of treatment narratives. A part of some shi’ite narrative works is appropriated to traditions called treatment narratives. In these traditions, methods of conflict removal among the narratives are demonstrated. Although, the use of these narratives, in the first step, is confronted a great objection, that is, confliction within treatment narratives. In this paper, we intend to express the most important opinions concerning this subject and to study their characteristics and comparison of them with the viewpoint of deceased author of Hadaeq, and to attain to the points for removal of conflict among the narratives.

Financial derivative instruments, which are the innovations of finance professionals, play an important role in the booming of financial markets. These instruments which have been created to confront risks become more diverse and evolved day by day. Option contract is one of the most important of these instruments which is more flexible than other derivative instruments and, consequently, it can better cover the risks due to price fluctuations. However, as option contract is a newborn one, a group of lawyers and jurists, especially sunni's jurists, have considered such contracts as very problematic, and hesitated about their validity from different aspects. But the exact understanding of the nature of these contracts removes some doubts about their validity and correctness and confirms their legal and canonical justification. In this paper, we have tried to introduce the option contract completely, mean while to elucidate the ambiguities surrounding this contract and to express the fundamentals of its validity.

Criminalization is the process by virtue of which legislator inhibits act or omission and imposes criminal sanctions on it. In the criminal system of Islamic Republic of Iran, it should be in the extents laid down in the Constitution principle 71. According to this principle, parliament authority in the regulation and the criminalization is not unlimited, but it is subject to restrictions prescribed in Constitution. Also, based on the Constitution principle 4, parliament should criminalize within the Islamic principles and standards. Under legal and constitutional principles, presumption is permitting, non-guardianship, innocence, personal security, prohibiting the Inquisition, prohibiting the surveillance, prohibiting the arrest, etc. and making an exception on these principles requires reasoning. Accordingly, this paper with presentation of creative interpretation of the Constitution, considers this important matter that Parliament under principle 71 can only criminalize in the extents laid down in Constitution and these limitations are determined in principles 9&40 generally and principles 24, 26, 27 & 28 specifically. Thus, criminal legislator in Iran can not criminalize out of above-mentioned boundaries and standards and impose limitations on the area of individual rights and freedoms.