مجله پژوهش های فقهی
سال هفدهم شماره 1 (بهار 1400)

Regardless of the various theories about the relationship between etlaq and taqyid, the expression of the master’s purpose and intention of etlaq and shomuliyyat is done in two ways; sometimes it is done by "motammam ja´l", such as the issue of sharing the rules between the knowledgeable and the ignorant, which is understood through successive narrations, sometimes the result of etlaq is obtained by not expressing motammam ja´l. Now, the main question is if the master is in a position to express his intention thoroughly, not expressing any other subject matters except the subject itself, whether it is possible to conclude through etlaq maqamie that his speech is etlaq and that there is no restriction on his intention. An analysis of the sources of the principles of jurisprudence proves the fact that despite the opinion of many scholars of the principles of jurisprudence, it is not correct to adhere to etlaq lafzie in some propositions such as proving the exclusive condition in terms of the concept of condition; even it is possible to prove through etlaq maqamie the practice of evidences although they do not correspond to reality, and the authority of the common law to restrict the subject matter (such as "ghena`" and "sa´id") in the major premises. As a result, adhering to etlaq maqamie is so effective that it can completely change the rule obtained from the basic propositions and this is the main finding of the research.

Using documentation studies, experts’ views, and examples and models of religious teachings and adapting them with the existent harms in the modern cyber space as an instance of the emerging issues, the present research aims to open the doors for carrying out more comprehensive research and finally to propose a media literacy education model based on religious studies. The research found that there are abundant instances and guidelines in Islamic religious teachings (including Quran verses, hadiths and practices of Shi'a Imams (A.S.), jurisprudential rules, and ethical doctrines) for all of three possible roles of modern media audiences including creation, consumption and sharing which can be used along with multiple modern media tools in order to guide the audiences in the correct direction and to promote their media literary education level. Efc, morjefoon, kharrasoon, expansion of prostitution, promotion of good and prevention of evil, negligence, unlawful suspicion, responsibility of the ears, eyes, and the heart, and the believer’s honor are among a number of examples of Quranic, traditional, jurisprudential, and ethical terminologies analyzed in this research.

Islam is a universal and eternal religion due to the perfection of the divine rules which are in fact one of its miracles. In the face of constant needs, changing needs will emerge, and these changes must be protected in order to preserve and maintain its purity and appropriate growth. For the same reason, the dynamics is not a divider of traditional jurisprudence, but traditional jurisprudence is dynamic in itself. Ijtihad, which is rightly called the dynamics of Islamic law, means a deliberate and methodical attempt to extract the verdict of God according to the four sources of the Book, Islamic tradition, wisdom and consensus. Providing some criteria and examples, this article attempts to explain who the time and place influence the religious judgments.

One of the punishments for theft is amputation and one of the important issues in this regard is how to execute the punishment of thieves who do not have the organ to be amputated. The fundamental question is whether the absence of the organ to be amputated causes the theft punishment to become cancelled? A group of jurists have tended to amputate another organ; however, there are different views on which organ should be amputated. On the contrary, most of the jurists have not accepted such a view and have argued about them in detail. From the point of view of this group, the cancellation of the subject of the sentence cancels the sentence itself and the hadd punishment (amputation) in such cases rather than becoming applicable to another organ. The present paper attempts to study and evaluate the views of jurists and their principles on this issue. First, it is hypothesized that the thief has the organ to be amputated at the time of the robbery, but after the robbery and before the hadd is executed, he loses that organ, and then it is hypothesized that the thief does not have the organ to be amputated at the time of the robbery. In this way, a correct judgment can be presented among the different opinions of the jurists. Finally, the laws in this regard are discussed and some suggestions are presented.

Paying unconventional salaries, bonuses, and benefits from the treasury to some managers or employees of executive agencies or government companies is one of the most important topics of the day. Some people believe that payment of such salaries and bonuses is not problematic and even it is necessary due to the existence of legal institutions and for increasing the productivity or preventing thieving from treasury and so forth. And some consider it illegitimate and illegal due to deprivation of public trust, creating injustice, and discrimination among government's staff. The Findings of the present study, which was done by analytical-descriptive method, indicate that any kind of unconventional rights, is not illegitimate and illegal, but some cases that lead to injustice, deprivation of public trust and so forth must be modified by removing the shortcomings and ambiguity of regulations and salary determination indicators.

The time value or time price is one of the important issues in economy and financial management whose acceptance or rejection has a significant impact on the analysis of other issues related to the financial markets. Proposing legal reasons, some Islamic economy scholars and theoreticians of Islamic monetary markets have accepted the money value of time and have considered it unproblematic. Some of the most important reasons include the rule of duration (lilajali qistun min al-thaman), the difference between the price of credit and that of cash sales, and the permission of advance payment or discount of the debit. Using a descriptive-analytical method and relying on the jurisprudential and economic sources, this article reviews and criticizes these reasons and shows that first, the theory faces different jurisprudential problems in terms of imagination and second, the reasons of the adherents of the theory are unable to prove the jurisprudential credit of the money value of the time in terms of affirmation.

There are two different views among the scholars about the basis and criterion of responsibilities. The first view is that the basis for the assignments is the capability of the servants. That is, everything that goes beyond the capability of mankind falls under the heading of the hardship and restriction, although the human can endure doing that. The second view is that the criterion of assignments is the level of endurance of the servants. That is, everything that goes beyond the human’s level of endurance is subjected to the rule of negation of hardship. While reviewing the issue, the authors believe that in general, it cannot be said that the duties are assigned based on the capability or endurance, but it seems that the original principle, when in doubt and the absence of analogy, requires that the assignment of duties be based on the person’s capability and the criterion is the servants’ capability; that is the customary power but not their level of endurance. The verses of the Qur'an, the narrations, the evidence of the facilitation of worship and the conduct of the wise can be considered as the most important evidence for strengthening the first theory. However, in certain cases, such as latitude and honor, divorce and taking oath, the criterion of determining the duties is the duration (utmost power) of the legally competent person.

Assimilating oneself to the infidels, i.e. conforming oneself to a Non-Muslim is totally abominable and there is almost no disagreement in this regard. However, there is no agreement about the situation of the matter in terms of obligatory judgment as well as its generality, specifically about the intension and the knowledge of the assimilated person. And despite the necessity of reporting the disagreements between the Sunni and Shi'ite jurists and their judgments to determine the duties of Islamic Governments when trading with Non-Muslim governments, there is no comprehensive and detailed comparative compiled written text. Accordingly, the author intends to fill in the gap through describing and evaluating different Fatwas of different jurists and to criticize the dominant theory among the Sunnis and believes that assimilating oneself to Non-Muslims in terms of their behaviors and specific beliefs, provided that they are proven to be proprietary, is unlawful only with the aim of promotion of infidelity and undermining Islam and they are not forbidden by themselves. It should be also mentioned that instances of assimilation are not worship-related and are submissive to the customary opinion and consequently depends upon time and place.

Each rule of law must have fundamental principles that can be used to “found an structure", "explain and clarify obscure words and inputs", "resolve disputes and obstacles to progress in the implementation of the proposition", and "recreate data and propositions according to social developments". Meanwhile, different schools have chosen several approaches to each of these components. However, it seems that in jurisprudential view the "model of the spirit of the Shari'a" can take into account all the above-mentioned cases. The present article considers the theoretical explanation and organization of the "spirit of the Shari'a" as a method in the criminal jurisprudence of its problem. The monitoring of the "spirit of the Shari'a", takes away the criminal jurisprudence from “deconstructionism”, the "unity of procedure in resolving of conflicts” and “stagnation of the form of punishment”. According to this significance and purpose, after discussing the preliminaries of the authority of the soul, the text monitors the degree of possibility of relying on the "soul", its requirements, as well as distinguishing the basis of historical and religious punishments. According to the library studies, it seems that “the spirit of the Shari'a” have unique outcomes based on the inherent and accidental interpretation of the outcomes of the criminal jurisprudence texts in the aspects of "legislation", "interpretation" and "contradiction" against devotional views on criminal jurisprudence.

Human work and activity as an important element have a significant role in the production cycle and economy of any society and if it is disrupted, the whole economy and production cycle will be harmed seriously. Depriving a person of work and income and the necessity of compensation for its damage is among the issues in Islamic law in the field of human labor. Most of the earlier jurists do not consider a fix guarantee for wasting human labor. However, some contemporary jurists have decreed in favor of the guarantee in this regard. Therefore, using a descriptive-analytical method, this article has evaluated this issue. Then, the opinions of the jurists, the existing laws, the judgments of the courts, and the invocation of certain jurisprudential rules have been analyzed and examined, and it has been concluded that the one who deprives a person of normal business and income of employment is responsible for compensation for the damages based on the days of deprivation.

The common view holds that the invalidating clause makes the contract absolutely invalidated which renders impossible any sort of correction and revision of the contract through relinquishing the clause. In contrast, the contemporary jurists and lawyers accept the possibility of the omission of the invalidated clause. While comparing the concept of waiver of invalid clause and the similar concepts, the present article analyzes the views of Five Religious Schools about the possibility and effects of waiver of the invalid clause. It also evaluates the arguments of the pros and cons and explains the strengths and weaknesses of each view. It can be accepted that the new and acceptable approach of the advocates is based on the revision of the relation between the contract and the clause and recognition of a credit entity for the invalid contract. Considering the multiple rules and the high possibility of using unreliable terms and conditions and relying upon the internalization of the possibility of omission of the corrupted part of the contract, the new approach has various practical advantages and the reasons mentioned in this article make it theoretically justifiable and acceptable. There is no legal prohibition in this regard in the Iranian civil law and considering the principles and application of related cases this is compatible with the position of Iranian law.

It can be seen two sources in the principled (Osuli) books of the Two Islamic Sects on evidences of ruling: the holy Quran and Sunnah, and subsequently, consensus and reason as common sources – with a difference of interpretation in the two later sources. However, the Sunni principled (Osuli) books contain other exclusive resources in addition to Four Main Islamic resources, that their evidentiary is controversial among the Sunni scholars of the principles of jurisprudence including the word of Companions. Some of the Sunni scholars of the principles of jurisprudence believe in the validity of these words and some other believe in their non-validity and to prove their arguments both groups have relied upon an evidence either verbally or non-verbally. Those Sunni scholars of the principles of jurisprudence who believe in the validity of the words of Companions have divided non-verbal evidences into two forms of consensus and reason stating the validity of consensus in two forms and rational reason in three forms. It is controversial that whether these evidences are correct and efficient to prove the validity of the words of Companions. Following the induction of the Sunni principled (Osuli) books and reviewing the words of their scholars of the principles of jurisprudence, the research concludes that the group’s arguments are not sufficient to substantiate such a principle and there are serious critique and reasonable answers against them.

Dr. Etan Kohlberg is a famous contemporary Shi'iologist that in part of his paper entitled "The position of walad zina in Imamiyyah Shi'ism" has claimed that according to the fatwas of Imamiyyah jurists, the illicit child or the walad zina has an inferior and discriminatory position in Imamiyyah jurisprudence which deprives him of some legal rights. The significance of this claim urged the author to clarify the truth of this claim by studying the jurisprudential statements to which he has cited. Using a descriptive-analytical method, the research reached the following main results Due to the author`s completely different methodology which is based mostly on the theory of some ancient scholars, he has regarded their theory about the rights of unlawful child as the theory of all the famous Imamiyyah jurists, and hence, he has basically not let the western readers know the reality of the viewpoint of the contemporary jurists which is in the direction of securing equal rights for all unlawful children. Therefore, despite the author`s specialization and worldly reputation in Islamic jurisprudence and theology, he has not been able to base the jurisprudential data of his paper on the valid sources.

The barriers to civil liability are divided into two categories. The factors in which the requirement of responsibility and the civil liability elements (detriment, tortuous act, and causality) are not complete and has been harmed by one of the pillars of it. There are other factors that despite the existence of all the civil liability elements, civil liability is removed from them due to lawful and legal reasons. When measuring the proportion of the first group of factors to the reasons of liability we obtain specialized departure, and when measuring the proportion of the second group of factors to the reasons of liability we obtain allocated departure. This differentiation has some effects. The relation between the two categories and the evidence of liability “´Alal yadi ma akhaztu hatta tu`diyahu” and the rule “man atlafa malal ghayr fahuwa lahu zamin” and the rule “la zarar wa la zirar” is the relation between allocation and specialization. Although there was no specific confirmation of some of the factors of prohibition of civil liability, it can be concluded from the words of the jurists and Imam Khomeini (R.A.).