فهرست مطالب

  • پیاپی 92 (زمستان 1396)
  • تاریخ انتشار: 1396/11/30
  • تعداد عناوین: 9
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  • Sayyid Ali Husayni Khamenei * Pages 5-39
    Literally ghina’ has been sometimes used in a general meaning referring to any sound which is produced in human’s throat by rewinding and extending and sometimes in a particular meaning i.e. singing. In hadiths, where ghina’ is the subject matter of shar’i rulings, it is used in its second meaning. In this sense, ghina’ is a commonsensical concept whose identification is exclusive to common sense. Based on the specifiers which has appeared in arguments, there is no reason for absolute unlawfulness of ghinain its second meaning. However, unlawfulness of ghina’ comes from the aspects of diversion and falsehood. Therefore, ghina’ will become unlawful if it contains a type of diversion which causes the listener to forget God because of the content or the way it is performed. The criterion for unlawfulness of this type of ghina’ is that it is inherently divertive and misguiding even if it is not practically misguiding some individuals. The ruling of instruction and learning of ghina’ follows the general rulings of ghina’ and is not unlawful itself.
    Keywords: ghina’, rewinding, dancing music, moving sound, diversion, misguidance
  • Ahmad Moballeghi Pages 40-83
    The present paper aims at studying hedging contracts in two sections, “Understanding the topic” and “jurisprudential review”. Understanding the definition and types of hedging contracts is the subject-matter of the first section. Hedging or risk coverage of contracts means a contractual or non-contractual attempt to protect the property in the investment process against risks of unexpected fluctuations in one of the three commodities: the price of goods, currency rate and interest rate, and hedging contracts are important tools which have a contractual nature and cover the risks. These contracts are option contracts, forward contracts, swap contracts, and futurescontracts, each of which has important subcategorieswith special nature and functions. In the jurisprudential review and analysis section, it is concluded that for mosthedging contractslegibility can be considered since a large number of questions and problems regarding these contracts can be answered and solved. Moreover,for some of these contracts “non-problematic jurisprudential frameworks” can be considered.
    Keywords: hedging contracts, swap contracts, forward contracts, non-problematic jurisprudential frameworks, option contracts, futures contracts
  • Shaykh Muhammad Ya’qubi * Pages 84-140
    Nine opinions have been proposed about how properties become subject to zakat: real partnership in shared property, as an amount out of total value of the specific property, partnership in the monetary value, a pure obligation without wad’i ruling, as nadhr for sadaqa, as an obligation for the owner, as a collateral for the property in exchange for zakat, categorizing properties in how they become subject to zakat, no specific topic for how properties become subject to zakat. None of these opinions are precise. The resultant of shar’i reasons is that zakat is a monetary right and the monetary value of specific properties are subject to it and it is an obligation for the owner to pay it. However, it does not mean that this right is part of the property and the owner can pay the zakat either from that property or other properties or pay the monetary value through valid currencies.
    Keywords: zakat of properties, to have a share in the property, properties subject to zakat, obligation, collateral
  • Muhammad Rahmani *, Hasan Zarwandi Pages 141-168
    Organ transplantation is an absolute instance of new issues which has different possibilities. The current article has studied and analyzed different jurisprudential arguments and has obtained the following results a) in case of vegetative state, it is not permissible to remove a vital organ which may lead to death because it is an instance of murder. Removal of organs which do not lead to death is permissible with the consent of the wali (guardian) or according to the person’s testament whether the person is in vegetative state or dead. B) compensation money for the removed organ is obligatory except if the person has wished to donate it free of charge and its usage is with the permission of the hakim shar’ in charitable usages. C)it is permissible to ask for an exchange to abandon one’s right of the property. It is also permissible to buy and sell organs. D)The transplanted organ will become ritually pure when it becomes one of the organs of the patient and wudu and ghusl is correct. However, before the completion of transplantation process, it is difficult to rule that this organ is ritually pure.
    Keywords: transplantation, vegetative state, blood money, testament, ritual purity
  • Muhammad Reza Kadkhoda’i Pages 169-196
    Assuming the necessity of theorization to regulate and guide social systems in Islamic societies as well as considering subjective and objective realities of the society and compliance with Islamic laws, this question arises: what is the methodological nature of these theories and what do they necessitate? Inspired by system making ideas of Shahid Sadr, this article tries to answer this question. Findings of this research which has adopted qualitative content analysis and techniques of Grounded Theory indicate that religious theory making about social systems requires covering three criteria of “consistency”, “viability’ and “religious justifiability”. Integration of rational, narrative and empirical methods is necessary in order to cover those three criteria. Each method has its own requisites concerning data collection methods, deduction and explanation methods and finally evaluation and judgment methods in the process of theorization. These three criteria can be integrated into ijtihad under a specific method; social understanding of the texts, free zones (without any ruling by God), dividing rulings into fixed and changeable, permissibility of the case where a mujtahid abandons his own fatwa and refers to the fatwas of other mujtahids in the process of system making are the most important theoretical building blocks in Shahid Sadr’s theory to support this type of ijtihad.
    Keywords: religious system making, jurisprudential system making, theory of system, methodical necessities of system making, Shahid Sadr’s theory
  • Distinction of the Logic of Jurisprudence and Law / A pathological study of utmost identification of applying usuli rules in legal reasoning
    Mortaza Faiiaz Pages 197-241
    Precise interpretation of laws and discovery of the intention of the lawmaker is the primary foundation to hold a judicial verdict. Distinctions between jurisprudence as the divine law and positive law as human lawmaking requires the principles of understanding and interpretation of law to be different from the principles of jurisprudence. Ignoring this distinction leads to fallacy in legal reasoning. Compiling logics of law (principles of understanding and interpreting the law) in accordance with commonsensical lawmaking generally and Iranian-Islamic lawmaking particularly and finding the common elements will first require a pathological investigation and explanation of the shortcomings in identification of these two distinct logics.
    Keywords: real lawmaking, commonsensical lawmaking, logics of jurisprudence, pathology
  • Mas’ud Imami Pages 242-281
    If in crimes involving damage to body parts, there is a certainty or likelihood that the damage caused by crime may extend to other parts, there is a dispute among jurists over the ruling whether it is permissible to execute qisas or not. And if qisas is implemented and damage has extended to other parts, there are different possibilities where jurists have different opinions about the ruling of some of the possibilities. Article no. 300 and article no. 440 of the IslamicPenal Code concerns these two issues. The current research explains different possibilities of these two issues, some of which have not been mentioned in jurisprudence or law. Different opinions have been discussed and criticized as well.
    Keywords: implementation of qisas, qisas of body parts, extension
  • Hamid Sotude * Pages 282-311
    The issue of parent-child relationship and how the child is attributed to parents amidst the natural consequences of artificial fertilization and especially in case of surrogacy is the most important topic in this respect and many other rulings fall under it. Adopting descriptive analysis, this article has first explained the mechanism of human reproduction and the use of a surrogate uterus from medical point of view then it has covered the rulings by jurists and their jurisprudential evidences to allow or forbid surrogacy and finally how the relationship in these children is determined.
    Keywords: artificial fertilization, prescribe, forbid, surrogacy, relationship