فصلنامه فقه
پیاپی 104 (زمستان 1399)

The issue of the validity of the document as an independent argument has always been debated. In this regard, the opinion of those who believe in its invalidity has led to the annulment of many legal articles, and has caused the diversity of the theoretical and judicial views. Those who believe in the validity of the document have always tried to reject the arguments of the opponents based on arguments such as the importance of documents in society, without examining the basis of the arguments of the opponents. The current study seeks to answer these questions through a descriptive-analytical method and library tools: Are the arguments of the opponents of the validity of the document strong enough? After obtaining its validity, if the document is in conflict with the testimony, which one is more dominant? The arguments of the opponents are stated in the narrations known as "the writings of the judge to the judge", "the correspondence of Ja'far ibn Isa" and the narration of "judgment based on evidence and oath", which by examining them, the non-implication of the claim of invalidity of the document is proved. In the end, it is concluded that the arguments of the opponents are not strong enough. Arguments of the dominance of the document over the testimony are examined in the following items such as the priority of the document based on the context of the verse of religion, the criterion of the first verses of Surah Qalam, the importance of words, the immunity of the document from inadvertence and forgetfulness in face of the testimony, the priority of written narrations over heard narrations, the criterion of the principle of Souq, the principle of necessity of permission in the object, and Sira al-Mutashare'eh (the conduct of people of religion).

According to the generalities and absolutes of jurisprudential arguments, the tooth has also Qisas (can be retaliated) like other parts of the human body. However, equality or inequality of place in qisas of teeth has been the subject of controversy among Imamiyah jurists. On the one hand, most of jurists believe that in case a person's tooth is pulled out as a result of a crime, equality in place is a condition for proving qisas, and on the other hand, few jurists do not consider equality in place as a condition for proving qisas and without paying attention to the need for equality in place, they have considered the mere existence of an example to be sufficient. Most of the arguments in proving their claim are referring to the verse "al-Sin bi al-Sin " which means a tooth for a tooth,  (Surah Ma'idah, 45) and some narrations, as well as relying on consensus of the jurists. The present study, after examining the arguments presented, has concluded that the jurists' reliance to the previously mentioned verse is incomplete. Contrary to their reliance, the referring to the above verse confirms the unpopular views of jurists. The referred narration also has weakness of the document and the claimed consensus is also subject to evidence. Therefore, the present paper proves the unpopular view by rejecting the arguments of most jurists, generalities, and absolutes in the issue.

Some decisions and actions of the present generation, such as the irregular use of natural resources, as well as the widespread pollution and destruction of the environment, have led to the emergence of sometimes adverse and dangerous effects and consequences that not only has it affected the current generation, but the consequences of which will be passed on to future generations. In such a way that it can be clearly predicted that the life of the future people will face an important challenge. While this is a warning to the current generation, it has redoubled the need to pay attention to and protect the rights of future generations. In addition, questions have been raised in this regard; including on what basis the recognition of rights for future generations can be justified. In order to answer this question, it seems that among the principles that can be proposed for the rights of future generations, we can mention "justice" and use it to prove the rights of future generations from a jurisprudential and legal point of view. To evaluate this hypothesis, in addition to the main concepts, formative and legislative justice as well as intergenerational justice, as the basis of the rights of future generations, will be analyzed and examined from a jurisprudential and legal perspective.

'Anan means the disorder of sexual desire in men and their inability to erect the penis, which there is disagreement among Imamiyah jurists about the amount of diya (blood money) on the penis. Most jurists led by Sheikh Tusi, referring to arguments such as narrations, consensus, paralysis of the penis and the principle of exemption from Dhimeh (obligation), believe in the proof of one-third of the full diya and the Islamic Penal Code (approved in 2013) in the last part of Article 662 has followed the popular view of jurists. Contrary to the most jurists' view, the author has achieved two different views from other jurists by examining jurisprudential texts. The group, headed by Ibn Junaid Scafi, one of the pioneers, and Ayatollah Khoei, a contemporary, believe in the proof of the full diya, through referring to the narration of Sakuni and referring to the narrations, which indicate the proof of a full diyat in a man's penis. Another group, which belongs to Ayatollah Madani Kashani, tries to examine the issue in detail considering the causes of male impotence. The present article, through a descriptive-analytical research, has explained and analyzed the existing views on the issue and their documents, and by undermining the arguments of two well-known and unpopular views, has chosen the detailed theory of the late Madani Kashani as a correct view.

Expediency in the sense of spiritual goodness of the servants (of Allah) due to the legislation of divine laws is the most active element that covers all the topics of jurisprudence and has a significant effectiveness in the jurisprudence of religions. However, whether this efficiency has an independent aspect, and with which the deal becomes an independent reason, or acts, as a tool in the process of inference, is debatable. The instrumental role of expediency is the common interest of religions, but there is no equality in its independent role. The finding of the study shows that although many believe that Malik, Ibn Hanbal and even Shafe'ei believe in the independence of expediency, but this belief can not be proven from their jurisprudential and Usul sources. However, when the element of expediency comes in through the validity of merit in the jurisprudence of Hanafis, Malikis and Hanbalis, and through analogy in the jurisprudence of Shafe'eiyah, has a lot of evidence, in which case, a conceptual confusion between merit and interests is not impossible. At the same time, the extensive role-playing of the element of expediency in the jurisprudence of religions leads to the conflict of different interests in the subject of the task as the most central point and it can be resolved in the precedence of the interests of the essence of action over the ancillary expediency.

Criminalization, one of the important institutions of the penal system, like other jurisprudential and legal institutions, requires a strategic approach and transformation due to the complexity of human relations. The jurisprudence of systems is the systematic view of the jurisprudence system in thought and action to provide goals at the level of macro system structures and at the level of systems (social systems). The main question is what kind of change does the attitude based on the jurisprudence of systems create in this criminalization system? The legitimate claim of the Shari'a that it is comprehensive, universal, and temporal requires that there be no defects, theoretical conflicts, or practical implications in the judicial and penal system. With this assumption and by relying on the method of jurisprudential-innovative theorizing – Shahid Sadr - the subject, elements, effects, conditions of crime, and punishment of the perpetrator, has been redefined based on the jurisprudence of the system to reduce the theoretical and practical challenges of the penal system. The basis of this idea is that each crime, according to its necessity and belonging, has two personal and systematic directions and aspects, and with a micro and macro scope. Acceptance of these aspects has important effects on the responsibility of the criminal (manager and deputy), his punishment, and other cases. The claim of this theory is considered in some of the crimes (subject to hadd, qisas, diyat, ta'zirat) and the punishments of the existing conventional jurisprudence, and in another part, it needs to be commented with this new ap-proach.

The main function of a rahn (the property made as security for a debt/loan) contract is to reassure the creditor about the receiving his money. According to the view of most of Imamiyah jurists, which is also followed in the civil law, there are two restrictions under the titles of necessity of receiving the receipt of Marhouneh (the loaned property) property and the necessity of the item to be determined for a rahn contract. In some cases, these restrictions seems traditionally unjustifiable and in practice has created problems for economic activists using this institution. The question of the current study is what are the principles of determining these restrictions and how can these principles be criticized and the theory of non- restriction be strengthened?          Through examining the principles of most of Imamiyah jurists view, it is concluded that there are several criticisms of the views on the restriction of the rahn contract. In general, those who believe that the rahn contract should not have these restrictions are right. Therefore, since the views of critics are both jurisprudentially and analytically stronger and can better meet everyday needs, it seems that the legislator can abandon its current approach and reform the civil law in order to eliminate these restrictions.

Mirdamad (1041 AH), a famous scientist of the Safavid period, in addition to mastering the rational sciences, is an expert in narrations such as Islamic jurisprudence and hadith, dirayat and rijal, and has compositions. Mirdamad is the most prominent jurist philosopher in different and comprehensive periods of religion and reason, and in his time, he held the position of religious authority. His books, treatises, and commentaries on jurisprudence and hadith, and his interpretation (of the Qur'an) on more than 40 of his 73 outstanding works, out of a total of hundreds of his works left, show his passion in narrations alongside profound philosophical works. This paper extracts and examines the opposing views of this famous scientist in the fields of jurisprudence. Mirdamad's Tafarrod (Individualized jurisprudential fatwa) is in contrast to the fame before him and possibly his own time. In one place, he refers to his special and unique views with the word "Tafarrod" and often does not state the reasons and evidence of his view and fatwa. In some cases, this study has provided arguments and justifications for them.