مجله پژوهش های فقهی
سال شانزدهم شماره 1 (بهار 1399)

The Divine Legislator, in order to protect the Nabi Akram (PBUH) as the representative of the religion of Islam, has legislated the crime of the blasphemy against the Prophet (PBUH) with a special rulings and effects. Although the crime titled the “blasphemy against the Prophet (PBUH)” and its subject is also “Nabi”, its rules can also be generalized to Hadrat Zahra (S) and the Infallible Imams (AS). Although the Articles 262 and 263 briefly refer to the crime of the blasphemy against the Prophet (PBUH), considering the lofty characters of the Prophet (PBUH) and the Infallible Imams (AS) and the legal responsibility to maintain them on the one hand and the existing gaps in the law pertaining to the crime of the blasphemy against the Prophet (PBUH) on the other hand, the present research tries to explain the various aspects of the crime of blasphemy against the Prophet (PBUH). The study, using a descriptive-analytical method, seeks to review the principles of generalization of the ruling to non-prophet. It believes that the twelve Imams (AS) and Hadrat Zahra (S) all are like a single pure light and the blasphemy against them equals the blasphemy against the prophet (PBUH).  Finally, a number of instances to which the generalization of the ruling of the blasphemy against the Prophet (PBUH) are controversial have been studied.

"Compassion" means manliness and chivalry. In academic terms, it means to avoid uttering cheap remarks and doing vile acts which are not meritorious and praiseworthy for the dignity of a faithful individual. Compassion is a necessary condition for a sublime and ethical life whose domain is the whole aspects of the life. It has different stages, varying according to situations, people, conditions, times and locations. Compassionate people have signs and symbols which entail some benefits in a pious life. Upon the verification of the reasons presented by supporters of the conditionality of compassion in jurisprudential justice, answering these reasons and expressing the reasons presented by opponents, the present research has come to the conclusion that owing to the fact that the reasons presented by the supporters were criticized and due to the fact that "compassion" and "counter-compassionate actions" are flexible and free-flowing terms, and are analyzable differently in different practices and traditions, the concept cannot be of validity, conditionality, and or particularity in the jurisprudential justice.

The simple mistake of killing is a killing committed without the intention of act against a person (mens rea) - although an intention of act is available - and without the intention to killing him/her. Therefore, in the case when there is not the intention of acting toward the slain and also the intention of action of killing (intention of acting and intention of result) is not available, the killing is in the form of a simple mistake. According to the definition of the simple mistake of killing, as we will see in the paper, in this type of killing, the person who has committed the killing has no intention of acting toward the slain and has no intention of result that is killing. The occurrence of such a killing as per old and new Islamic penal code is based on intention. Therefore, the action is considered as simple mistake that neither the result of an act is intended nor the intention of acting toward the slain is available.

As a result of the complexity of life today and diversity of wars, the issue of jihad of the women is subject to the scientific and Islamic jurisprudential disputes. According to jurisprudential teachings, the women have been removed from the responsibility of primary jihad but not defensive jihad. In the case of primary jihad, one of the important and prominent issues in today’s life is the necessity of women’s involvement in the expansion of Islam and Islamic values and attainment of virtues that are achievable in this area. Therefore, primary jihad or jihad of calling, which means “going into war by Muslims under certain circumstances and conditions in the absence of any attack by polytheists and infidels solely to call hem to Islam”, is held to be non-obligatory for women according to many Islamic scholars. This paper, thus, studies, refines, and verifies the concept of the lack of necessity of primary jihad for women and tries to provide a way to prove the necessity of jihad for women, such as the generalities of the evidences for the obligation of jihad or withdrawing the prohibition of jihad for women in the case of involving physical contact with the enemy. In other cases which doesn’t involve such physical contact with enemy, such as nursing the wounded or cooking for fighters, necessity of jihad for women is well-established.

In respect of interaction or non-interaction of price with clauses and specifications stipulated in sale contract, there are two different views in Islamic jurisprudence. Some jurisprudents believe that the clauses and specifications have no role in determining the price of the sale but merely persuade the customer to make sale contract. Another group believes that the clauses and specifications of the sale are effective in determination of the price and are considered as equivalent to some part of the price. In other words, the first group of the jurisprudents relies on the rule “al-shurūṭ lā ūza´u ´alayhā al-thaman” and the second group relies on the rule “li al-sharṭ qisṭun min al-thaman”. It seems that no one can practice the generalities and specifications of these rules and since the act of legislator in the area of contracts is principally affirmative, for adopting the determination criteria it should be referred to the custom. As a whole, in the cases when the sale and the clause are considered as a single ruling by custom, such that the sale contract is made because of gaining the subject of the clause the rule “al-shurūṭ lā ūza´u ´alayhā al-thaman” is relied upon. However, if the clause is not in the above-mentioned order and it only triggers and persuades contractor to do the contract, the rule “li al-sharṭ qisṭun min al-thaman” is relied upon.

Prisons and prisoners are essential institutions and elements of the criminal systems of thoughts and the countries. The responsibilities of the community and especially the government to the prisoner and his current expenses is one of the most important issues and concerns that are raised and suffered by the governments. Regarding the prisoner as  an overhead of the society and assigning the payment of his current expenses to him or considering him as a social patient and assigning his expenses as a function of his correctional duty to the government, or other conceivable alternatives have been controversial among scholars in the field of policy-making. Dealing with this issue from jurisprudential point of view through two rule-based or theory-based jurisprudential methods as well as the subject-oriented or system-oriented jurisprudence can clarify the dimensions of this issue by religious references. The present research uses a library method by referring to various jurisprudential sources and describing and analyzing the texts through independent reasoning (Ijtihad).

Attorneyship is a permissible and lawful contract. In this contract, the client or the lawyer may terminate the contract at any time. Achieving a stable and unshakable contract is possible in the light of irrevocable attorneyship. But even in power of attorney, the client can do something that can lead to the termination of the contract. For example, a client may sell a product that has an irrevocable sale attorneyship and the contract will then is terminated. To prevent this action by the client, the condition of “not-performing an act against the case of attorneyship by the client" applies. The present article aims to investigate the validity of this condition and discusses the condition by using a descriptive- analytical method. The findings of the study indicate that the condition of the expiry of the right was considered by jurisprudents to be like a ruling and deprivation of this right is not permissible. However, if the condition is construed to constitute a commitment not to perform an act against the case of attorneyship, it would be flawed and will have the same result.

Today by the development of medical science, it is possible to transplant the human organ. Organs are transplanted in two ways. First, the organ is separated from the live human and is transplanted in the needed body. Second, the organ is separated from the dead body (people suffered from brain death); in this way, the will or the consent of the family of the dead person is needed. The increasing need to the organs to treat the patients in need of transplantation has gradually raised the issue of buying and selling the organs of the body such that everyday announcements with the subject of selling or buying the body organs are seen in public places in the society. This new phenomenon has some effects on the jurisprudential and juridical issues pertaining to such transactions. In another word, the issue is raised as to whether the human has the right of possession of his/her organ? To what extent does the human have the right of possession of his/her body? Raising of this question and seeking to answer it from the viewpoint of the religious texts and the Shi'ite jurisprudential reasoning led the author to write this study using a descriptive-analytical method. In this new issue, some of the Shi'ite jurisprudents, referring to the verses of the Quran and the traditions, have accepted that human does not have the right of possession of his/her body. On the contrary, another group, referring to the verses and the traditions, holds that the possession of the body organ is inherent; accordingly, the human has the right to have possession of his body and to use all of its benefits. Transplantation of the body organ is a type of occupation and as long as it does not harm the body, it is jurisprudentially and juridically permitted. This study, without referring to medical issues and the transplantation of body organ of a live human which have been studied widely in different books and articles, reviews and discusses a number of issues about possession, limits of possession, and the reasons of those who believe in such a possession from the viewpoint of law and jurisprudence.