مجله پژوهش های فقهی
سال هفدهم شماره 2 (تابستان 1400)

The nature of blood money is an influential matter about which three main views have been presented so far. This article has strengthened a less widely known view which regards blood money as an exchange for satisfaction. According to the view, blood money is not a punishment nor compensation of damage or the combination of both of them; rather, it is essentially an exchange for satisfaction. In this view, blood money has not a legal nature; rather, it has a completely customary nature which has been signed up by divine law without any change. The customary function of blood money is basically getting the satisfaction of a victim against whom a crime has been committed as well as his/her legal guardians in order to put out the fire of quarrel and hostility. At the same time, it aims to compensate for some of the injuries or damages sustained by them. According to this view, the ruling government has the right to adjust the amount of blood money to the amount of damage based on the requirements of the time.

Although arbitration is as old as the history of mankind, much of what we know today as arbitrator in Islamic texts is the result of ijtehad of Islamic jurists that established this institution in the periods of jurisprudence. Despite the similarities and differences, the relation between this institution in Islamic jurisprudence and the institution of arbitration in the present case law must be regarded as a continuation of the old law in the new law. Because the outstanding features and elements of today's arbitration including the mutual consent of the parties to the arbitration as well as the issuance of verdict on the basis of fairness and justice, has also existed in arbitration in the past. However, there are essential differences between the issue of jurisdiction over arbitration in the past with that in the present, the most obvious reason for which is the absence of the phenomenon of modern government and the modern judicatory system which considers one of its duties to oversee the process of arbitration in the positive and negative manner.

Famous Islamic jurists maintain that the legitimacy and permissibility of usury ruses is documented in the Qur'an and Islamic traditions. The present study intends to infer the reasons for the permissibility of usury ruses by applying jurisprudential methods from the Qur'an and hadith and to compare the reasons proposed by Shi'ah jurists with those proposed by Sunni jurists. Using a descriptive-analytical method, this paper shows that the legitimacy of the usury ruses can be proved by referring to the Book, Islamic traditions, and jurisprudential rules. In addition to the Imamiyyah jurisprudence which permits usury ruses based on the rules of "no harm", "no hardship", and "concomitance of wisdom and shari'ah", the Sunnis also have considered it legitimate in other forms such as the contracts of tavarruq sale, istighlal sale, and 'ainih sale. Therefore, only by considering the delicate points of usury ruses, one can eliminate the doubt of usury in the contracts and consider it to be legitimate.

The various subject matters of jurisprudence (Fiqh) contain many religious laws limited by legal measures. In these cases, the correct recognition of the fulfillment of legal measure and the way it is performed by religiously competent person is an important matter. Four theories can be driven from the expressions of the jurists in this regard including rational precision, customary precision, customary negligence and statement in detail. When it is the matter of limitation, the customary precision is the criterion for recognition of duty, but considering the way of its performance the customary accuracy is acceptable. In addition, considering the recognition of the concept of measure, the customary negligence is considered to be harmless, but considering adapting an example to the concepts, it is not acceptable. Alongside these matters, scientific and experimental precision can also be studied. While quoting and criticizing the statements, this article prefers the statement in detail. In most cases, there is a deliberation and insistence on strict observance of the specified limits in the word of divine law which indicates the importance of a particular amount in the view of the Legislator and the tolerance thereof is rejected. However, in some cases, the method of confinement may be discovered from the language of reason or other evidences and that the substantiation of a particular amount is the detector of the actual realization of the subject of religious law. Therefore, in those cases, accuracy is not demanded.

In the first centuries, the way of ijtihad was open in Islam, but gradually it was closed and made obligatory within the frameworks of four main jurisprudential denominations. Some scholars like Ibn Taymiyyah criticized this approach and considered the path of ijtihad open. From twelfth century, Salafi movements, following Ibn Taymiyyah said that the path of ijtihad is open. Nowadays, Wahhabism, Muslim Brotherhood group and Jihadi Salafis believe that the path of ijtihad is open, however, there are so many disagreements on the subjects of ijtihad and taqlid among them. The majority of Wahhabi scholars avoid from considering themselves as absolute mujtahid and consider themselves as the followers of Ahmad ibn Hanbal. Accordingly, they suggested Tamazhob theory which was criticized by Naseroddin Albani. He maintains that Wahhabi scholars should go toward the absolute ijtihad. Famous figures of Muslim Brotherhood group like Sayyid Sabiq and Yusuf al-Qaradawi have claimed that they are absolute mujtahid but maintain that they can follow other denominations as well. Jihadi Salafi scholars also consider themselves as absolute mujtahid so they declare that others are pagans and non-believers. Using a library and descriptive-analytical method, this article has an in-depth look at ijtihad from the viewpoint of Salafi scholars and studies the disagreements among the great Salafi scholars. Finally, it refers to some of the consequences of this view.

One of the factors that strengthens the social and family relationships is the gift. Gifting turns the animosities and enmities into affection and love. It is admired as a valuable performance and act in all cultures. A common instance is the wife and husband’s giving the gift to each other in different occasions like birthday anniversary, marriage anniversary, etc. that increases their affection and love to each other. However, their lovely relations may turn into indignation for different reasons. One of their reactions in this situation is to take back their gifts. The present text aims at studying the lawfulness or unlawfulness of taking back the gifts by the spouses from jurisprudential and legal perspectives. The present article, relying on the related Islamic traditions in this respect, removing the conflict between them, as well as the reviewing of the jurists’ words it is found apparently that the ruling in this matter is that the gift should not be revoked.

The term “consumer and his rights” in its modern meaning has not been used in Imamiyyah jurisprudence and no specific and independent subject has been allocated to it. However, in various jurisprudential debates, some rules and mechanisms have been forecasted for protecting consumer rights. Prohibition of retailing, hoarding, and fainting in the deal are just a few examples of this matter. Using a descriptive-analytical method and collecting and gathering dispersed issues related to consumer and his rights in Imamiyyah jurisprudence, this study aims to show that this issue has not been neglected and specific rules and mechanisms have been considered by jurisprudential texts to protect consumer rights. At the present time also because of the specialization of consumer rights issues and enacting specific protection laws, the governmental Ta'zir Organization has been formed with the primary aim and mission of protecting consumer rights.

One of the important jurisprudential-legal issues is the explanation of the intention of the legislator of the function of the no-hardship rule, because this principle is appearing in the absence of difficulty associated with the domain of religious duties, while performing any duty is somehow difficult for religiously competent person. Therefore, it should be seen whether the executive hardness of the duties is eliminated. In such a case, due to its negating role, the obligation of performing most of religious duties or the illusory hardship of the competent person at the time of performing the duty is eliminated. So, it functions as a guide for both the jurist and the competent person and as an encouraging element for the competent person. While analyzing the views related to no-hardship rule and its problems, this article proves that by removing hardship it means removing illusory hardship. As a result, no-hardship rule plays the role of a guide for the jurist to deduce legal laws as well as the role of a guide and an encouraging element for the competent person.

This article attempts to explain the reasons for the general theory of indemnity (arsh) in Imamiyyah jurisprudence and following that in Iranian law and to prove the reasons based on an economic analysis. In this case, the results obtained from the analysis will turn the general theory of indemnity into an efficient guarantee against violating party of the contractual commitments and proper and fair answer may be given to the breaching of the contract by Imamiyyah jurisprudence based on traditional - revised - systems. In addition to explaining the reasons for classical and modern theories of economic law with an emphasis on the question as to whether the execution of the same commitment is preferred or its indemnity, the article makes a comparative study of the subject matter in common law specifically American common law. The results obtained from of the research show that the general theory of indemnity can be completely proved based on the classical and modern economic theories. In fact, it can be said that the general theory of indemnity can be a combination of the Hick’s ethical theory of performance - mainly on the basis of Kaldor's performance theory - and the priority of compensating over performing of the same commitment and the theory of objectivity that aims to remove ethics in the area of contract.

The true resources of law stem from culture, religion, race, language, and human civilization. However, formal resources only pass the legislative process. In domestic law of countries, because there is only one governance, the law resources are regulated according to the conditions of each society. But in international law, we are faced with different governments and rulers. This research aims to determine the capacity of "Islamic Jurisprudence" to meet the "common legal resources" of the countries. The method used in this research is a descriptive-analytical method. The studies show that in the meantime of establishing formal resources of the international law, according to the article 38 of the statute of International Court of Justice, only the international treaties, international custom, general principles of law, international judicial procedure, doctrine, and justice have been considered. And the rational reasoning and independent intellectual rules have not been addressed. It is concluded from the results of the research that achieving international peace and security requires that the countries have proper interaction with each other. One of the most important contexts to meet this interaction is the "Theory of independent intellectual rules" and considering the role of wisdom in establishing international legal rules.

Ahmad ibn Muhammad is one of the jurists with the style of the tenth centuries AH. He is known as a scholar because of his in-depth research, asceticism, and piety; his method of jurisprudence has such outstanding features that it has a special style and school in the periods of jurisprudence. One of his works Majma''ul Faidah Wal Burhan - an explanation to Irshadul Azhan by Allamah Hilli - has been known as an initiative in Imamiyyah jurisprudence. In this important work, he has cited to the Book and Sunnah like his predecessors and referred abundantly to intellect in different meanings, jurisprudential rules, practical principles, absolute intellect, etc.. As it sometimes relies on it to challenge popular theories and proposes some theories about factual incidents based on jurisprudential principles. Using a descriptive-analytical method, this research has analyzed the role and application of rational proof in this book and has come to the conclusion that he has taken a special look at rational proof and relying on it he has challenged some jurisprudential theories that have no support other than fame and has given unique fatwas.

A brief look at the variation and magnitude of medical errors necessitates that compensatory ways be determined equitably and appropriate to the situations of the society. In this regard, jurisprudential and legal inquiries to determine the compensator for damages is very essential. The crucial matter in this regard is the doctor's guarantee or non-guarantee. One factor that might have such effect is obtaining letter of innocence from the patient, which has also been known as non-guarantee, or non-liability. According to a view, it is necessary to obtain letter of innocence from the patient for not guaranteeing a physician. Other views consider that the mere consent of a patient to receive medical treatment by the physician is sufficient for not being a guarantee. They not only consider that it is necessary to obtain letter of innocence from the patient but also maintain that there is no jurisprudential arguments and legal support for that. The implementation of the first view and consequently not guaranteeing the physician boosts the number of medical errors and further fatalities. Moreover, establishing the validity of such an innocence, which is, in fact, a condition of non-liability, has consequences. Realization of the other view provides the best for both the patient and the physician. Although famous jurists have not decreed on the recent opinion, it has documented based on the opinion of some scholars such as Ibn Idris. The central claim and idea of ​​the current inquiry are to clarify and justify the lack of necessity to obtain letter of innocence from a patient in the context of inaccuracy of the condition of non-liability with a new look at jurisprudential and legal dimensions of the physician's responsibility in a different statement and configuration.

Jurisprudence is tied to all human affairs. The mission of jurisprudence is to explain the duties, do's and don’ts of individual and social life. One of the most influential factors in Islamic society is how to deal with the followers of religions. How does jurisprudence approach this part of life? Is jurisprudence silent on it or a theory can be drawn of it? Some refer to jurisprudence as the origin of violence; they consider that the intellectual foundations of extremist groups should be found in traditional religious jurisprudence. Using a descriptive-analytical method and using the jurisprudential texts of Islamic religions, this research seeks to prove the theory that a set of social rules of jurisprudence in the field of interaction with religions, systemic frame, pursues a major goal in the social context; that is the major goal of convergent interaction with followers of religion, but not divergent one. The negative view of religious jurisprudence is due to a lack of in-depth view of jurisprudence that is inconsistent with the views of the mujtahids of religions. The collection of jurisprudential religions take an approach along with the rules that lead the Islamic community towards sympathy, love and unity. Therefore, in addition to criticizing the basis of violence and physical assaults, religious scholars recommend their followers to have positive interaction. They maintain that financial, political, and military defense from followers of other religions is as obligatory as their own followers.

There is consensus among scholars according to the stipulated text of the Divine Legislator regarding the retaliation right for the avenger of blood. However, there are controversies among the scholars as to whether it is necessary for the avenger of blood to seek the religious ruler's permission for the execution of retribution (qisas). The jurists have proposed some opinions in this respect. The majority of jurists such as Shaik Tusi maintain that the ruler's permission is obligatory in both issuance of the verdict and its execution. Other jurists such as Muhaqqiq Hilli maintain that the ruler's permission is obligatory only in the phase of issuance of the verdict. A few number of jurists such as Muhaqqiq Ardibili have mentioned that it is not obligatory for the avenger of blood to seek the ruler's permission in any phase. This research has used an analytical library research method. Having discussed the jurists' opinions and their arguments, the research aims at answering the question as to which opinions are acceptable based on rational and transmitted evidences and from which of the mentioned opinions the Islamic Penal Code is adopted. The research findings show that the famous opinion is valid and justifiable regarding the reasonable transmitted and rational indications and that the Islamic Penal Code 2014 is adopted from this opinion. In addition, it can be understood that Muhaqqiq Ardibili's opinion lacks validity.