نشریه مبانی فقهی حقوق اسلامی
سال یازدهم شماره 2 (پیاپی 22، پاییز و زمستان 1397)

One of the important issues in religious jurisprudence subjects is the role of crime repetition in punishment aggravation and alteration which is indicated in some punishment one by one, not publicly and separately, but in new legal text, it is indicated separately and in relation jurisprudence is indicated as the aggregative factors. Most of the juris consults have used these punishment issues in their punishment sentence one by one separately, although some believes to the similar role of the repetition in the form of punishment in some crimes. The main subject in this article which is disputable is the role of repeated crime punishments in changing the ascertated punishment to the execution sentence which the most jurisprudence is agreeing with. Some differences, and as we know with reviewing of the development of this issue according the opinions of the early jurists up to the contemporary jurists and finally adaptation of the early and later jurists opinions with one of the forward thinking jurist. In 11 centuries AD named Molla Mohsen Feiz Kashani in Mafatih al Sharayeh can be illustrative of special and delicate view in Shiite legal history and its developments which are changed to an important and single issue in contemporary rights.

Spiritual prestige and respect is the most important human capital and its importance is not equivalent to any other valuable issue; in fact, this is prestige and respect that enables human to play his social role; thus, damaging prestige may prevent human from obtaining many tools and opportunities. Persons who are recognized as culprit or criminal are faced with endangered condition; since, through judicial investigation, their human prestige and respect is violated and it is necessary for considering method of restoration of prestige. Meanwhile, the government plays key role for restoration of prestige for damaged people and this responsibility is sometimes directly related to governmental associations including: Public Prosecutor or enforces the governmental associations to execute some tasks (for compensating the incorrect accusation opened against persons) and this task is also applicable for criminals as well. The topic of present research is restoration of prestige that means repairing and compensating damages applied to dignity and prestige of persons facing with penal investigation and also acquitted from criminal charge and also mistakenly convicted persons.

Achieving a criterion for understanding the divine precepts is one of disagreed discussions among the Islamic jurists. The present study aims at reviewing different methods of discovering a criterion from the perspective of Islamic sects. The method of this study is analytical descriptive with the focus on library studies. Research findings indicate that from the perspective of Islamic scholars, there are different ways for understanding religious orders including Qiyas Mansus al-Ellat/analogy with reasoning, Qiyas Ovlaviyat/priority analogy, and Tanqih Manat Qat'ee/stating the order with reason. From among the other ways of using the criteria of the precepts Nass/Quran and traditions, Ijma/ consensus, Qiyas/ analogy, Isteqra/induction, Manaseb/ having connection, Omum Badaliyat/understanding the reason by similar cases, Sebr o Taqsim/assigning a definition for omitting others, hint and indication, Shobbah/using similarities for attributing to a main order and so on can be named. After stating the mentioned cases, the way of using them and the reasons of their users have been briefly expressed and analyzed.

After the spread of terrorism, a new wave of interest in torture emerged in the world. As a result, the need to theorize torture, was once again on the rise. This wave also requires moral motifs and justification. Kantian duty ethics and virtue ethics As a Two great moral system and Competitors to the utilitarian ethics have often disagreed with prescription torture. Although some interpretations of virtue ethics may be permitted torture in some cases. But The utilitarian ethic has a high capacity and ability for administration and even moral justification for torture in particular situations. Also In practice proponents of administration of torture often have invoked to The Foundations of this system as a pretext. This article has been working on the weaknesses and shortcomings of utilitarian ethics for the prescribed documentation of torture in certain circumstances and show the compatibility of absolute prohibition on torture even with an interpretation of the theory of utilitarianism

In the Civil Code in the article "787" it is stated that "the mortgage agreement is permissible to the mortgagor and it is necessary for the mortgagor ..." Not with standing the fact that the mortgage is deemed to be relative in terms of necessity and authorization, the legislator has not determined whether to enter into a mortgage Whether it is permissible to look for a marriage or to consider the necessary rules for marriage? This issue poses a major challenge in identifying the effects of mortgage contracts and raises questions about which types of contracts are valid on the assumption of complications such as motives, death and anesthesia on the parties to the mortgage contract; On the other hand, mortgage is an objective contract in which the bill is effective, and therefore the rules before and after the bill differ in necessity and permission. This paper explores the full range of mortgage agreements from the point of view of whether the rules governing mortgage law are permissible or necessary? In general, in this research, based on the legal and jurisprudential analysis, concepts such as mortgage bills are sought to incorporate the structure and framework of mortgage contracts into legal documents and jurisprudence analyzes and to resolve conflicts of law matters such as materials of "787". Civil law with the article "788" is the same.

One calamity in liberal arts researches is a biased and even prejudiced attitude toward studied issues. The philosophy and reason of using penalty in Islamic laws is an issue not being protected fromsuch kind of attitude and it has even impeded some great penal law authors from a   rightconception on Islamic law and its purposes. In common law penal systems, penalty philosophy is based on two main attitudes: teleology and background orientation which represent their own strong arguments and basics in their theories. In contrary, in Islamic penal law, its major difference with common law penal systems is in its emphasis on modification and rehabilitation in this vein, special attention to   prevention and even predicting surrounding risks has distinguished this  system from other systems so that one can claim if Islamic commands  and guidelines are utilized  correctly will be no need to implement many   determined punishments.

This article is part of a study to define, interpret, and explain the "macro-scale" or "ijtihad systematizing and civilizing" infrastructures. The question of the article is: why the realm of ijtihad is practically exclusive to jurisprudence, meaning "individual commandments", and to what extent the scope of ijtihad expands if the evidence of this monopoly is not complete? The hypothesis of the author is about the meaning of ijtihad and its domain: "Ijtihad is a methodological and reasoning epistemic attempt to obtain the opinion of God (including descriptions and prescriptions) from authentic sources based on authentic evidence". According to this hypothesis, Ijtihad does not devote to jurisprudence, and it flows in the whole of religion; it has three axes that support this hypothesis: 1. Review the concept and scope of the "verb" in the definition of jurisprudence; 2. Revise the scope of sentence Shari'a; 3. Reviewing the concept and scope of "authority" in defining ijtihad.