مجله پژوهش های فقهی
سال شانزدهم شماره 2 (تابستان 1399)

Is blood money like other property regarding inheritance right or a different system governs it? There are controversial views among the jurists regarding this matter and the Iranian Criminal Legislator has been affected by the different views in the different periods after the Islamic Revolution of Iran. The Iranian Legislator has accepted for the first time, under the note to the Article 452 of the Islamic Penal code (1392), the opinions of the jurists that hold that the maternal relatives as a whole are deprived of the right to inherit the blood money (despite other property). Nonetheless, the absolute and detailed interpretation of the said note faces some juridical and legal problems, Because according to other reliable legal views, the deprivation of maternal relatives requires that they accompany their paternal relatives. In addition, according to other strong views, maternal relatives are not deprived of the right to inherit the blood money in the cases when the blood money replaces retaliation. This view, apparently, can be generalized to the note to the Article 551 of the New Islamic Penal Code (regarding the excess of the blood money of the woman that can be paid by the state personal injury fund). The present text tries to review and criticize the different legal approaches to the blood money inheritance right and to make clear the real path of the note to the Article 452 of this rule through presenting a critical and analytical method.

The effects of each local examination and investigation on the knowledge of the criminal prosecutor, with regard to the nature and the shape of influence on two substantial and procedural forms is imaginable. However, the legal assumption is based on the "presumption” of all of the states of issuing the local examination and investigation under the Article 221 of the Islamic Penal Code. This article aims to prove the case when the prosecutor “directly observe” the subject of the accusation to prove the assumption of the “reason in its specific sense”. It has been concluded that the effect of each procedural and substantial local examination and investigation on the knowledge of the prosecutor is relevant in spite of the rule “having a way to criminal reasons”. In the case when it is against the other reasons (being horizontal) it is in the "length" of the will of the judge and precedes the other reasons in their general sense and to prove this argument it brings the section A of the Article 302 in the Code of Criminal Procedure and the examination of the dead body as witness. The most important effects of knowing the knowledge gained through direct observation as “a reason in its specific sense” rather than “to presume” all cases of examination are the priority of the reason over presumption and the definitiveness of the verdict.

The method of the Shi'ite and Sunnite Hadith scholars is to quote the narrations by naming the chain of transmitters. In the meantime, Sheikh Sadouq, one of the most prominent Shi'ite Hadith scholars, has reported the narrations in his book "Man lā yaḥḍuruhu-l-faqīh” with incomplete chain of transmitters (mursal). Although, later on, he tried to respond to the assumed critics with writing a "Mashikha", his Mursalāt that have been quoted without mentioning their narrators with such words like "qāla" or "ruviyah", has been controversial among the scholars. Those who believed in the authenticity of the sanad of the narrative abandoned all the hadiths of Sadouq without the narrator and those who believed in the authenticity of the issuing of the narrations considered them authentic. In the meantime, Imam Khomeini took a moderate view. The findings of this study indicated that from Imam Khomeini's point of view, firstly, only dogmatic Mursalāt of Sheikh Sadouq with the word "qāla" are authentic. Secondly, Sadouq is not only a Hadith scholar, but also is a scholar superior to Najjashi and Tousi. Therefore, his dogmatic Mursalāt indicate that the narrators removed from the sanad are authentic. Thirdly, Sadouq is not a mujtahid in its conventional meaning among the scholars of the principles of jurisprudence specifically the later ones. Therefore, he has not quoted the dogmatic mursalāt with guess and speculation. Fourthly, the dogmatic mursalāt of Sheikh Sadouq counterweights that of Ibn Abi  'Umayr. Fifth, not only his mursalāt are equal to his Masānid, but also they are preferred to them.

In the present study, the author, referring to the historical evidences, explores the argument over the indemonstrability of the obligatory Khums on the profits of earnings at the time of Holy Prophet (PBUH). While acknowledging the availability of adequate legal evidences for the obligatory Khums on the profits of the earnings at the present time, criticized and rejects the historical evidences concerning the obligatory nature of Khums on the profits of earnings during the Holy Prophet (PBUH)’s period. The findings of this research may be applied in the field of the jurisprudence in the line with the obligatory nature of Khums on the profits of earnings, even though the research approach adopted due to the evidences to which the jurisprudents refer in order to support the obligatory nature of Khums on the profits of earnings in the Holy Prophet (PBUH)’s period is a historical analysis. In this study, the most important evidences found concerning indemonstrability of the obligatory Khums on the  profits of earnings in the Holy Prophet (PBUH)’s period include the lack of evidence for supporting the Khums on the profits of earnings in the Holy Prophet (PBUH)’s period, the poverty among the Muslims in the Holy Prophet (PBUH)’s period, the shakable faith of newly Muslim people, and the contradiction between the obligation of Khums payment applied to the profits of earnings, while not excluding the annual expenditures, and the philosophy of Khums at that period of time.

One of the factors influencing the decrees of the contemporary jurists is to convey the narrations based on dissimulation (taqiyyah). This method can often be seen in the works of Sheikh Tousi. Using this method to remove the contradictory narrations was among his significant characteristics which did not have any precedence before his time and the two books namely Al-Tahdhīb and Al-Istibṣār fīmā ikhtalafa mina-l-akhbār are the certain examples of this claim. The present study, analyzing the method of Sheikh i.e. to convey the narrations based on dissimulation and focusing on the sequence of the mentioned preferences in the Maqbūlah of Umar Ibn Hanzalah based on the priority of the  justice of narrator, the popularity of narration, its agreement with the Book, and disagreement with the Sunnis ('Ammah) and scrutinizing three cases of his viewpoints as examples invalidates the Sheikh’s reasoning for conveying the narrations based on dissimulation and does not see any excuse for that.

Many laws and derivative principles of jurisprudence are conditional on justice. Typically, Shi'a jurists discuss the conceptualization of justice on the basis of two options: The habit of compliance and elusion and the actual persistent. Despite the fact that the definition of justice to the actual persistent has a background in the Ja'fari jurisprudence and to the inner disposition is missing in the narratives, the famous Ja'fari jurists consider justice as the habit of compliance and elusion. Undoubtedly, the necessity of considering disposition in the conceptualization of justice makes establishing of justice difficult. In addition, it does not view mere compliance of religious obligations (Wājibāt) and elusion from inviolable things (Moḥrramāt) enough in order to establish justice. This fact raises the question that based on what facts the famous [scholars] consider the disposition as necessary in the conceptualization of justice and are these reasons adequate for proving the famous views? Therefore, the present paper, with the aim of clarifying and evaluating the famous reasons, in a descriptive study, investigates the necessary reasons for considering the disposition in the conceptualization of justice. It is concluded that the famous reasons are not adequate to prove the famous view and the necessity of considering disposition in the conceptualization of justice. It is not necessary to go beyond the compliance with the religious obligations and elusion from inviolable things in order to establish justice.

Based on common definitions, jurisprudence has been designed to explain and elaborate the rules and their evidences. By evidences we mean the documents that prove that a certain rule is God’s command and according to expression of the jurists the reason for issuing a rule is not related to the mysteries of rules and the philosophy which is concealed in its issuance. The jurist is not obliged to unveil these secrets, however the increasing expansion of communities, versatility, and plurality of the necessary issues in the society have proven that reliance on the evidences doesn’t fulfill the needs of the society and one cannot expect that there should be a reason from among the legal evidences for every social necessary issue. Therefore, it will be inevitable to seek help of the reasons of legal evidences to determine the religious task at the time of silence or ambiguity or religious rules and to generalize the existing rules to other cases by means of reason or in the cases when the reason is resolved the rules also have to be resolved and to expand or spoil religious rules. This important issue necessitates that the jurists do not suffice to express the evidences and to take a step toward etiology. The present study aims at explaining the accurate meaning of the reason and the necessity to explore and explain the reasons of rules and consequences of incorrect etiology to prepare the ground for the movement of jurisprudence from explaining the evidences to explaining the reasons and to provide the fundamentals of establishing the evidential jurisprudence through identifying the correct methods of reason exploration. By doing this, it can help and improve the evidential jurisprudence and can prevent from undesirable effects of unprofessional reasoning for rules.

The penal system of pure Islam has come from the immense revelation and is saturated with the teachings of the infallible Imams (A.S.) and is flourished as a result of the hard work of the jurists over thousands of years. Therefore, it is characterized with the unique features such as accountability and being up-to-date. The present text has been written to answer a new question as to whether it is lawful to anesthetize or make a person who is sentenced to retribution, or prescribed punishments insensible. The discussion follows within three stages. Initially, the arguments of the jurists who believe in the unlawfulness of making the person anesthetized or insensible in retribution are reviewed and criticized. Next, the arguments of the jurists who believe in the lawfulness of making the person anesthetized or insensible in retribution are explained and in the third stage, their arguments are discussed. Finally, it is concluded that making a person who is sentenced to retribution or prescribed punishments anesthetized or insensible is unlawful.