فهرست مطالب رامین پورسعید

Child marriage is one of the most controversial issues in jurisprudence and law. Most jurists of Islamic religions, especially Imam Khomeini, consider child marriage to be lawful. The Iranian Civil Code has envisaged child marriage according to Article 1041 approved in 2002. In 2018, an urgent plan to ban underage marriage of minors and increase the age of marriage for adult children was approved by parliament. If sexual education and economic growth are necessary in marriage, the presumption of impairment and harm in the marriage of children is prevalent. If a stronger exigency in this impairment can be conceived for the marriage of a child, in that case, the expediency of this marriage should be allowed. The present article examines child marriage through descriptive-analytical method. The necessary data are collected from library sources as well as the viewpoints of the proponents and opponents of this issue in the jurisprudence of Islamic religions and the laws of Iran. Finally, these two perspectives are critically studied and proposed for the use of the legislators. In Article 1041 of the Civil Code, instead of imposing a prohibition or restriction on the child marriage, in addition to emphasizing the expediency, the matter should be investigated by a trusted experts board of the judiciary to rule on marriage permits in appropriate cases.

The legislator of the Islamic Penal Code approved in 2012, in Article 19 and in the position of explaining the 8 graded Ta'zir, did not make any reference to capital punishment and ruled that the ta'zir is less than the limit based on only one jurisprudential understanding. The coercive result of this is the lack of execution in the mentioned article. Therefore, in order to execute the perpetrators of this category of crimes, they resort to Hadd Corruption, and this has caused conflicts with the principle of legality of punishments, the principle of proportionality of crime and punishment, the principle of the necessity of preventing the extensive interpretation of Hadd & Ta'zir punishments. The current research, which is organized by descriptive-analytical method, does not necessarily consider Ta'zir as less than the Hadd. According to these analyzes and with the strengthening of Ta'zir institution, Article 19 needs to be revised. A situation that is compatible with the principles of applying punishments, the needs of today's society, and the expansion of sovereignty, and causes the non-mixing of meaning and examples of Hadd & Ta'zir.

Ta’wīl, i.e. passing from the exoteric meaning of the word to the esoteric meaning, is a method of understanding the text. Since this method seems to be effective for understanding jurisprudential narrative proofs, and on the other hand, there are popular rules in the words of the science of usūl al-fiqh, such as the Appearance Principle, which prevent the interpretive (ta’wīl) approach, it is necessary to evaluate the status of ta’wīl in usūl al-fiqh, as well as, its relation with the Appearance Principle and its difference with interpretation (tafsīr). The main purpose of this research is to recognize the roots of ta’wīl in usūl al-fiqh. The worthy efforts of some of usūlīs in this regard are commendable, although such efforts have been neglected. Based on the descriptive-analytical method, this article tries to identify and introduce them. The most important findings are as follows: the necessity of not being satisfied with the inherent relationship between word and meaning, the necessity of establishing the absolute will of the speaker, the public plural, the necessity of adapting the rules used from the text to the inherent good and bad, synchronizing with the holy legislator intentions, distinguishing between direct and indirect audience, the possibility of departing from the implication of appearance in the assumption of corroboration, and the superiority of conventional meaning over literal meaning. These findings show the interpretive (ta’wīl) capacity of words in usūl al-fiqh to the extent of classical hermeneutics, which attaches ta’wīl to the text, the history of the text, and the intention of the author.

The main axis of citizenship rights is basic freedoms, especially the right to participate in destiny, which is one of the most important ideals of the Iranian people in the Islamic Revolution of 1357. The main issue is, how, and based on which theory and with what means Sharia provides basic rights and freedoms of citizens. The article is based on the theory of the objectives of the Shari'ah, which considers the essential goals of the Shariah, including life preservation, generation preservation, property preservation, wealth preservation, and intellectual preservation, and considers the achievement of these goals to be the priority over the appearance of the rulings, and with the development of these goals by the leadership of the Prophet's revolution. Imam Khomeini (pbuh) provides a basis for using the tools of consultation and supervision to ensure the original goal of the government, which is justice, which leads to the priority of preserving the content of the Islamic system. This article is organized in a descriptive-analytical way.

The Caspian Sea, as the largest lake in the world, faces environmental problems on its shores and water borders, and its solution is criminal protection of the urban environment in the form of criminalizing destructive behaviors against trees, waste, air, water and soil pollution and noise pollution, as well as threats to public health and damage to the environment based on the provisions of the Convention on the Law of the Sea. Governments have the sovereign right to exploit natural resources according to environmental policies (water border of the Caspian Sea). The question is how to compensate the damage to the environment of the Caspian Sea? And the hypothesis is that the issue of Caspian Sea border contamination is always disputed. The result is that if the damage occurs by the workers in any case, even thought the sponsor government has done appropriate measures; it is possible to suppose criminal responsibility and compensation for him.

Rulings and laws that can take place in different time and place conditions are fixed rulings, and rulings that are temporary or differ by lifestyle, are variable. The fixed and variable issue in the Iranian legal and penal system is important because the study of the history of changes in laws does not show a change commensurate with the needs of individuals and society. Banks are still grappling with a dilemma called usury over jurisprudential opinions and various laws. The stability of laws prevents the dynamics of rights. To prevent such a situation, it is necessary to examine the effective context in the formation of laws, including their historical context, to answer the question of what is the impact of pre-Islamic Arab ethics in the formation of criminal law.

This article with a descriptive-analytical and library method reviewed the foundations of the conservatives and tried to explain the position of the historical context of sentencing.

In order to organize this research, observing the originality of the texts, honesty and fidelity have been noticed.

One-sided concern for the appearance of the Book and Tradition in setting punishments (fixation), and disregard for the history of the age of revelation, is certainly one of the reasons for the reduction of the content of the existing penal system. This basis is not justified from a logical point of view; it imposes criminal punishments commensurate with one era on other eras.

The pre-Islamic legal regime contains some "moral considerations" consistent with the free-spirited morality of the ancient Arabs and sometimes ignorant exploitation, which constituted the status of laws related to Usury, the Guarantee of Wisdom, the Blood Money of One Hundred Camels, and cases like this. It should not remain constant so far the extent that important in criminal principles such as the principle of personal punishment, the principle of proportionality of crime and punishment, the principle of rational and moral justification of punishment, will be neglected.

The political system, which assumes itself belonging to people, not only buys its citizens’ votes, but also marks their volition and will. Today, such emerging rights as freedom of expression, freedom of the press, the necessity to participate in crucial matters, etc. are called citizenship rights, the observance of which will result in the fair distribution of power, wealth and even information. Being the salient characteristic of democratic societies, these rights demarcate the relations between individuals living in a geographical limit and the sovereignty, though majority of regimes strive against granting them to their citizens. Given the democratic nature of the Islamic Republic of Iran, examining the legitimacy of citizenship rights is of vital necessity. Research into jurisprudential basics and arguments indicates the legitimate foundation of citizenship rights referring to the reason of intellect in affirmative verdicts and the principle of obscenity in affairs with explicit canonical prohibition together with the necessity of avoiding the rule of closing the corruptive. The present study was conducted based on a descriptiveanalytic method.

The political system, which assumes itself belonging to people, not only buys its citizens’ votes, but also marks their volition and will. Today, such emerging rights as freedom of expression, freedom of the press, the necessity to participate in crucial matters, etc. are called citizenship rights, the observance of which will result in the fair distribution of power, wealth and even information. Being the salient characteristic of democratic societies, these rights demarcate the relations between individuals living in a geographical limit and the sovereignty, though majority of regimes strive against granting them to their citizens. Given the democratic nature of the Islamic Republic of Iran, examining the legitimacy of citizenship rights is of vital necessity. Research into jurisprudential basics and arguments indicates the legitimate foundation of citizenship rights referring to the reason of intellect in affirmative verdictsand the principle of obscenity in affairs with explicit canonical prohibition together with the necessity of avoiding the rule of closing the corruptive. The present study was conducted based on a descriptive-analytic method.

Crimes against humanity are among the subjects that can be prosecuted by the International Criminal Court. Islamic Republic of Iran despite active participation in early stages of formation of this court has not joint this court due to certain considerations. One of the most significant of these considerations is the issue of crimes against humanity focusing on torture. Avoidance of torture and harassment of people has been identified as the most important human rights. There are scientific and well-established reasons that organized torture and harassment even in unofficial form cannot be considered a criminal policy. The most important ones of these reasons are as follows: necessity of human rights, speculative nature of judgments of the jurists as a method of deduction of criminal rules, evolution of criminal system, passage from verbally grounded jurisprudence to goal based jurisprudence and the necessity of paying attention to preservation of the content of governmental system around justice and ethics. It seems that the main hindrance that does not allow Iran to join the ICC is the domination of jurisprudential procedure and excessive attention to the external meanings of the Book, tradition as well as other sources of judgment in such issues. By finding a way out of this situation, interaction with the ICC and as a result avoidance of international isolation will be possible.

Given that the patient is independent and has the will and if there is no prohibition or restriction from the religious point of view, he has the right to make any decision in his medical affairs, the question is whether the patient that is unconscious for a period of time is competence to make a decision in advance? In recent decades, the knowledge of modern medical ethics with a patient-centered approach and attention to autonomous importance, by devising strategies such as lifelong will and advocacy in medical affairs. The purpose is to determine the patientchr('39')s will before the patient becomes incapable of making a decision and provide it to physicians to determine the patientchr('39')s treatment process.

In this article, a library study is performed using descriptive-analytical methods.

This research with a jurisprudential and legal approach and after a brief study of the solutions proposed in medical ethics, by describing and analyzing the jurisprudential arguments and opinions of jurists proves that although the medical will is not valid and effective, but the patient is able to get a lawyer in medical affairs to determine when he is unconscious and making decisions.

The findings suggest that a person may, in the form of a solh Contract and by considering the jurisprudential and social status of the contract, regulate his medical and therapeutic matters and delegate the decision to another person for the time of anesthesia or when he lacks the ability to make decisions.

The increased human beings experiences and improvements have direct effect on social and legal developments. As a sample, the classic rights such as the right to life and the right to body immunity are counted as obvious and normal rights. The less-known rights have been appeared in both internal and international law. The right to happiness with emphasis on child happiness is one of these new phenomenons. This right obtains its situation as a new generation of developing factors by some countries. The authors search and explain by library-based studying method on the concept of happiness in philosophy, theosophy, morality, literature and religious jurisprudence. Then, (facts) and (norms) about joining of children happiness and legal system are discovered. The results show us non-governmental organizations and governmental ones such as teaching and cultivation ministry or Institute for the intellectual development of children and young adults in spite of their advantageous services are far from their real missions. It may because of no priority of happiness for politicians, absence of consistency between policy and relative administrators, some cultural and economic challenges, etc. This article has submitted some suggestion to solve the obstacles in accordance with available circumstances.

Presupposition is a belief that is institutionalized in the mind of the individual under certain time and place conditions or under the effect of social culture, family, economy, etc. and affects his decision-making. The penal lawmakers are no exception to this rule in enacting laws. This research work intends to clarify some of the most important presuppositions that affect penal jurisprudential verdicts. Since these affairs have turned into a postulate in the minds of the lawmakers, it is very difficult to make alterations in them. For instance, the presupposition of the authenticity of a tradition with a single narrator in dealing with the traditions attributed to the Infallible Household of the Prophet (PBUH) has made it impossible to pose any contrary statement. Therefore, the majority of the textual evidences such as statements and hadiths (traditions) have been given priority over non-textual evidences such as evidence by reason and conduct of the wise. However, it seems that the opposite side of this statement, i.e. giving priority to non-textual evidence, must be prioritized since the textual evidences face problems in document validity, attribution and authentication. Moreover, the reasoned understanding of traditions is mainly based on presuppositions that reduce the possibility of pure understanding, and diminish the evidence from pure text to superficial and then to brief evidence. This research work has been development in the context of philosophy of Islamic jurisprudence and penal law.

The Failure of the International Organizations and Governments in Establishing Sustainable Peace the Way the Researchers Also Believe in is of so Much Importance in the Arena of International Laws That the Research in This Area is Still Being Continued. Most of the Researches Introduce the Belief in the Cooperation Between the International Organizations and Governments as the Most Important Factors of Creating Peace and Even Rendering it Persistent. Though Being Necessary for the Creation of Peace, These Ideas and Beliefs Never Guarantee its Sustainability. Thus, the Present Study Aims at Investigating the Subject “Sustainability of Peace” With a Novel Approach Named Hermeneutic Analysis of the Feasibility of This Kind of Peace.

Rawls’s Democratic Peace Perspective Which is Based on Human Right Teachings Expands the Grounds of Peace’s Stability and Persistent to Beyond the Domain of the Governments and International Organizations and it Guides us to This Finding That the Sustainability of Peace Entails the Actualization of a Sort of Cultural Discourse Hence Symbiotic Life Amongst the “People”. It is Necessary to Reach a Correct Perception of the Human Commonalities of the People in Regard of Peace and its Persistence Despite the Culture’s Ground-Driven Differences With the Important Subject of the Hermeneutic Approach to the Issue Falling on the Axis of Contemplation.

StudyMethod:

The Study has been Arranged Based on a Descriptive-Analytical Method and Use has Been Made of Library Research and Note-Taking.
Ethical Considerations:</strong> The Important Ethical Considerations of the Research are the Observance of the Principles of Trusteeship, Honesty and Content Production.

Nondemocratic Governments are Inherently at Odd With Peace and its Stability. The Efforts of the Ideologue Governments, as Well, are Made in line With the Actualization of Their Own Ideals and Negligence of the Importance of Agreement on a Stable Concordance. The Actualization of Unity in Ideas in the Area of Peace Between its Real Demanders, i.e. The People Even With Their Cultural Differences, Can be Done Through Adapting Their Horizons of Understanding and Perception to the Necessity of the Peace’s Sustainability.

Diversified interpretive tendencies to a great deal depend upon the conditions and dominant thought of the time, where the best method of hermeneutics finds its deserving place. Today, Quran by Quran interpretation as well as hermeneutic and teleological methods are more common.The author of this paper is of the opinion that identifying the ultimate goal of the legislator is the most essential point in correct interpretation and hermeneutics. Inattention to the ultimate goals of Quran is one of the important reasons behind unpopularity of narrative interpretation, while it has received emphasis from Imam Khomeini. But it is upon the discretion of the researchers to find how far this approach can be used for interpretation and whether theory of interpretation can be also used for jurisdictional inference. Apparently, Imam Khomeini’s practical conduct can be the basis for presentation of such discussions. In this paper we will present evidences for jurisdictional interpretations and teleological Ijtihad (independent reasoning).

In marriage the husband is obliged to give money as dowry to the woman or to take it as a commitment. There is no legal reason that the dowry shall be the property of the husband. So someone other than husband can give or be obligated to pay dowry. Party''s commitment to pay the dowry involves several legal effects. The basic question in this context is that the commitment of third party is equal to pay dowry by husband himself or it is different? There are many similarities between the two cases، but in dissolution of the marriage commitment and the right of lien، some differences are seen. This article surveys these differences in Imamiyah jurisprudence with emphasizing on Iran''s civil law.

The present research studies the nature of commercial papers, nature ofproperty, and the concept of pledge and securities in connection withcommercial papers/trades bonds. Pledge of commercial papers has beenaccepted in most countries as a principal; however, the surface of Iranianlaws is in favor of non-acceptance of such pledges. In view of theimportance of the subject and increasing usage of commercial papers ininternal, domestic and foreign business area, this paper tries to help in liftingthe main obstacles in accepting the pledge of commercial papers byattributing to some of the laws, by-laws and presenting a new definition ofproperty.

According to the first clause of article 201 Eslamic penal law, the punishment for theft at first time is cutting off four fingers of his right hand. Abu-AL-Ishagh AL- shattebi believed that interpreter’s understanding of Holy Quran and tradition should not contrast with other’s main ends of legislator such as securing life, reason, Capital of , generation and religion, and also should not squandering them .Some contemporary jurists such as Abolghassem Gorji have introduced a new ground through expanding the legislator’s ends to justice and social reform. Based on this new ground, literal understanding of verse 38 Maeideh, cutting off thief’s hand is seriously under question.

This research is attempting to highlight the interpretation of legalcases from hermeneutic perspectives and to comprehend theambiguous perceptions in legal texts and sources. Further, it takesinto consideration the roles of tradition, convention, the civil, legal,and critical supervisory systems in deciphering the codes in legaltexts after the Dekartian revolution. From a modern perspective andthe degree of accountability for the fulfillment of the requirementsof humanity, in fact, the hermeneutic interpretations of the legalcases lead to independence and, achieving unfettered freedom fromthe imposed interpretations dictated by metaphysical legaltraditions.

According to the well-known tradition which tells 'the divorce is in the hand of somebody who has control over family', it is generally accepted that the divorce is in the hands of husband. Our study focuses on the surveying of the divorce application on behalf of spouse by appealing to the no harm rule. There are some definitions of harm and reciprocal harming according to the well-known 'no harm' tradition. The present paper deals mainly with those definitions according to which the divorce application on behalf of spouse is allowed. In this respect, the authors regard the comprehensive theory of negation and prohibition as an accepted one. They are of the view that the divorce application can be brought up on behalf of spouse if these points are onsidered: the basic significance of no harm rule and its affinity with the justice rule; that the jurisprudential views and examples are close to the no harm rule than to the no impediment rule; and finally the fact that the martyr Mutaharrī often emphasizes on the no harm rule and justice. Of course, it must be noted that on the basis of some other reasons, this right can only be enforced by the Islamic judge.