مجله پژوهش های فقهی
سال هفدهم شماره 4 (زمستان 1400)

The Islamic Revolution of Iran, led by Imam Khomeini, was a miracle that stunned the world and realized what was appeared to be impossible. He introduced true Islam: an Islam capable of managing society in various aspects of internal and external affairs, such as resisting the East and the West and defending the oval of Islam and preserving the Islamic state. The Islamic system is a powerful system and religion has a place in the context of people's lives from cradle to grave. Preserving the system is obligatory and disturbing it is forbidden. This jurisprudential view of the Imam against the rival’s view led to a new movement in the world, which caused the hatred of the enemies of Islam and imposed Saddam,s war against Iran. For eight years, world and regional arrogance supported Iraq with all possible means. Imam Khomeini with its Christian soul called the nation to defend the country honorably and captured the enemy. Thus, Islamic Revolution emerged as a system of government with a spirit of honor and dignity. This article seeks to examine the doubts and views of the rivals about the reasons of war continuation, entering Iraq’s land and not accepting ceasefire. It also seeks to examine the jurisprudential principles of Imam Khomeini in holy defense. The author has described the subject by using a descriptive-analytical method of research and collecting data through library method.

Necessity of observation of human dignity in crime prevention strategy requires that individuals’ liberties are not restricted on the excuse of crime prevention. This matter appears, on the one hand, in the expansion of free space and reduction of controlled spaces and, on the other hand, in the formation of a thought-out strategy by the governments that observes human dignity in the form of social policies in order to prevent crime. In the meantime, crime prevention regulation, the purpose of which is to respect individuals’ rights and freedoms and to determine the scope of implementation of active preventive strategies, has been always emphasized and focused in Islamic teachings under the titles like advocating the privacy, dignity and freedom of humans. However, this criterion has faded in most of Western countries and the consequences of continuation of this challenge have been more crystallized for the citizens of these countries. Accordingly, the doctrines of Islamic jurisprudence is full of teachings which focus on active preventive policies along with respecting human dignity and explain punishments for the violators. This article aims to explain dignity-oriented crime prevention in the light of teachings of Islamic jurisprudence and religious sources and to describe its different aspects and manifestations.

In the quality of retribution for a group participating in the murder of one person, there are two bases among the Imamiyyah jurists. Most jurists believe that the guardian of the tail can retaliate against all partners in murder, provided that he pays the ransom in excess of each person's crime. Some other jurists believe that the guardian of the tail can retaliate against one of the killers, and the other partners must pay the ransom in excess of their crime to the retaliated person. The present study seeks to answer the question of whether it is possible to retaliate against a group that has been involved in the murder of a person. Examining the authentic and valid narrations which are the main and most important reason of each of the parties, we come to this conclusion that the emergence of narrations indicating the permission of retaliation for one of the partners in premeditated murder is bound by the clear text of the narrations indicating retaliation of all the partners in premeditated murder and it is supposed to be abominated. As a result, all partners in crime can be retaliated against.

What is called “the goals of Islamic law” by the Sunni and “refinement of the basis of the ruling” (tanqīḥ manāṭ) by the Shi'a is neither the nature nor the reason of the ruling, but they are the goals and expedience-seeking wisdoms behind the scenes of introducing the rules, which help the jurists make correct and right decisions. The pioneering role of Sunni scholars in the field of goal-oriented Islamic jurisprudence has allowed them to create foliage from the sturdy tree of “expedience and corruption”, to depict a whole variety of the goals of the Islamic law and to draw from each of them scientific works and practical solutions. Taking an analytical approach and using applied theorization based on written sources, the research finds that the two jurisprudential branches namely Shi'a and Sunni find the origins of the goals of the Islamic law in the duality of expedience and corruption, and, when it comes to “minor goals”, they are in agreement both in theory and practice, that is, they settle minor problems about which no instructions can be found in the clear text by means of minor goals or refinement of the basis of the ruling, although Shi'ite jurists have not taken a serious stance regarding other goals, especially “general” and “particular” goals.

The matter of "honor", even if it is only considered as an important and influential discussion in ethics, needs to be included in the process of issuing a religious and legal ruling in order to be practical. Jurisprudence, as the regulator of the actions of legally competent persons, with its rich resources in this field, [but] has not dealt with this issue independently, thoroughly and coherently. The existing rules and regulations of jurisprudence are usually negative and their contents mean minimal dignity and maintaining the status quo. There is no jurisprudential rule that invites and obliges all individual and social strata of the religious community to strive and take measures to promote dignity in all aspects. Due to this gap, the present fundamental research, with the aim of designing and applying the "rule of dignity" and by the method of inferring and analyzing the content of evidence, has dealt with four matters of the provisions of the rule, documents, applications and exceptions of this rule. According to this rule, any action that the dignity of the Muslim person and the Islamic society is subject to is obligatory, and in return, any action that leads to their humiliation is forbidden. This rule, with a wide range of topics, plays a decisive role in the protection of spiritual dignity and also, at the macro level, preserves and promotes the dignity and independence of Muslims and the Islamic community.

One of the subtopics on the validity of a tradition with a single transmitter considered by the jurists is the domain of the validity of a tradition with a single transmitter, which, of course, is the main reason for the validity of a tradition with a single transmitter. Some experts have not accepted the validity of a tradition with a single transmitter on serious issues such as blood, fame, etc., and believe that relying on traditions with a single transmitter is not enough to discover and establish rulings in this area, and other complementary arguments should be used alongside them. On the other hand, a number of experts have argued that if the basis for the validity of a tradition with a single transmitter is the conduct of the wise, there is no reason to differentiate between significant and insignificant issues; because the criterion here is to gain confidence. And if the basis for the validity of a tradition with a single transmitter is the Naba` verse, it means that if the person who brings the news is a righteous person, then there is no need for its explanation. In addition, if we consider the validity of a tradition with a single transmitter to be restricted to the unimportant matters, many of the penalties and hududs imposed by a tradition with a single transmitter will be dropped out. Examining the arguments of the two theories, this paper will emphasize that the conduct of the wise as well as the appropriate verses of the validity of a tradition with a single transmitter on important matters are the general statements in this regard.

Trial is one of the most important approaches for the issue of the conflict between fiction and circumstantial evidence in Islamic law. According to the rule "burden of proof rests upon the claimant and the oath upon who denies", it is upon the claimant to prove the claim and provide evidence. According to a provided criterion, the claimant is the one whose pledge is in conflict with the fiction and circumstantial evidence. In the course of trial, some assumptions may be made of which the fiction and circumstantial evidence are against each other. In this case, the issue of the priority of one over the other is raised. Therefore, rectifying and explaining this matter play a key role in issuing an accurate judgment in courts. In Islamic jurisprudential and legal texts, there is disagreement over the priority of fiction or circumstantial evidence. As a whole, it can be said that if the appearance of evidences is appointed by the legislator, it precedes the fiction and if it is documented by the ruling custom, domination and so forth, some prioritize fiction over circumstantial evidence while others prefer fiction over circumstantial evidence. It seems that in such cases one cannot resort to a general rule, but what matters is that the lawyer or the judge settles a dispute in the light of the characteristics and conditions of the dispute and his/her own knowledge and internal confidence.

The conflict between fiction and circumstantial evidence is one of the principal issues that has shaped certain controversies in principles of jurisprudence. One of the most important manifestations of such a situation is the flow of proceedings and the realization of judicial justice through the flow of fiction or circumstantial evidence. In cases between citing the fiction or circumstantial evidence, each of which leads to completely different results, we see the realization of such a conflict, and this view has been widely discussed among Shi'a and Sunni jurists. A glance at the literature formed in this field shows the precedence of certain suspicions and circumstantial evidences over the fiction, but all the words are in cases where one circumstantial evidence does not have a solid religious support and at the same time is documented according to custom (such as the circumstantial evidence of paying alimony for a couple who live under a single roof), domination (such as suspicion of DNA test results), evidence, and the like. In such cases, the question has been raised as to whether one can refer to the fiction or to such circumstantial evidence in the trial? The findings of the study indicate that Shi'a jurists believe in the primacy of the fiction, but the Sunni jurists, despite the consensus on the validity of absolute suspicion, have formed a wide disagreement that its origin is due to the difference between the views of mujtahids on the strength and weakness of circumstantial evidences.

Lying is one of the most serious harms in society and it is always recommended in religious and ethical texts to avoid it in various ways. Dissimulation as a way of avoiding lying has been discussed in various jurisprudential and ethical books. This research tries to determine the scope of using dissimulation according to the observance of jurisprudential and moral principles. For this reason, first, the criterion of truth and falsity of the news has been examined. Next, the ratio of lying to dissimulation is explained in order to determine the reason for the permission and non-permission of the rulings of the jurists in using dissimulation and its limits. The data in this study has been taken from authoritative jurisprudential, logical and ethical books. The results show that the scope of using dissimulation is much greater than the need for lying and it can be an appropriate way to avoid lying.

Shill bidding (Najash) is one of the wrong methods of advertising goods for sale. According to the view of the majority of Islamic jurists, najash occurs when a person, without buying intention, offers a high price for the goods offered, to encourage customers to buy it at a higher price. Some jurists have introduced a second type for najash: praising a product for what it lacks, without buying intention and in order to attract customers. According to these definitions, some kind of brokerages and auctions, and media advertising, in which the goods offered are generally regarded as the best goods, can be considered as examples of najash. There are disagreement on najash considering positive law and impeditive law as well as dealing options. Analyzing the arguments of the jurists, it can be concluded that najash is forbidden, but transaction is correct. Despite the opinion of most jurists, there is no option for the customer in the first type of najash and in the second type, the customer has a fraudulent option. The issue of najash has not been stipulated in the statute law. However, by reviewing articles related to the options of deception, deficiency and dissimulation, and also based on the recommendation of the authors of this article to limit the scope of Article 238 of the Civil Code to the meaning of the option of fraud, it can be concluded that the customer has no option in the first type of najash but he/she can use dissimulation option in second type of najash.

Hijab is one of the most challenging issues in the present time, and various authors with different approaches have written for and against its religious necessity. “Islamic Code of Hijab at the Time of the Prophet (PBUH)” written by Amir Hossein Torkashvand denies the religious necessity of hijab for women based on narrative, historical, and jurisprudential reports. He claims that the Shari'a does not have a ruling on women's clothing, and that the narrations' putting emphasis on women's hijab was related to the observance of society's custom, and that free women covered their hair to distinguish themselves from slaves. So far, there is no comprehensive analysis of the author's historical and narrative evidences on the issue of women’s hair covering. Therefore, using an analytical-descriptive method, the present article analyzes the arguments of the book. The results of this survey show that the author’s perception of the hadiths relating to the hijab of Lady Fatimah Zahra (S) and women in Karbala is unilateral and incompatible with their code of behavior. Most of evidences against the obligation of hijab for female slaves suffer from weak isnad and inconsistency with other arguments, and the author’s interpretation of al-Ahzab:59 violates the Islamic equality and is rejected by many Shi'a and Sunni exegetes. Finally, some counter-arguments, such as the perception of “khimar” by the most of the women of Muhajir and Ansar and many hadiths concerning the subject, prove the necessity of hijab for women in Islamic shari'a and reject the arguments mentioned in the book.

The family legal system in Islam includes the rights and obligations set by the Shari'a for family members, including husband and wife. One of the duties of a woman in the family is to limit the way out of the home. Various views have been expressed about this ruling. In general, there are two theories among Shi'ite jurists regarding the condition of permission for a woman to leave home. According to the famous opinion of jurists, a woman has absolutely no right to leave the house under any circumstances without her husband's permission and consent. And leaving without the husband's permission leads to the violation of marital duties. Based on the non-famous opinion, it is considered illegal for a woman to leave home without her husband's permission if it is against the right of husband’s sexual enjoyment. Therefore, if the husband travels or when the husband cannot have any enjoyment, wife may leave home without permission. Referring to and analyzing jurisprudential arguments, especially the verses of the Qur'an, this article seeks to prove that there is a third theory; that is the fact that it is obligatory for the wife to take the husband’s permission if she wants to leave home.  But he has to decide on the woman's pleas by following the popular rule and the interests of the family, which is beyond personal interest.

Undoubtedly, in the current era, what is important in the field of intellectual property is its commercialization. On the other hand, the transfer of intellectual property in the form of legal contracts is essential. These forms are numerous in Iranian law: some contracts, such as sale, exchange, and loan cause the transfer of ownership of the same property, and some other contracts, such as lease, transfer the ownership of interests for a limited period of time. What was examined in the present article is the feasibility of adapting the lease to intellectual property. Almost from the beginning of the formation of the intellectual property law system regarding the transfer of intellectual property concerning the feasibility of adapting the lease contract as a specific contract in the Iranian legal system, with intellectual property, there has been no organized and accurate research. The authors have studied the issue and concluded that according to the jurisprudential and legal definition of the lease contract and due to the term in this contract and the lack of a term in the copyright law, the creator's right is not compatible with the lease. As a result, it is not possible to design the legal environment governing this market, and it will not be possible to apply intellectual property in the form of a lease.

Witness testimony has been accepted as evidence. However, there are differences in the validity and authenticity of women's testimony over men, which has led to the doubt about discrimination in some Islamic rulings among Muslims. It should be noted that gender differences are considered in inferring the rules and jurisprudential and legal rules. However, the lack of proper explanation of these differences and their philosophy and wisdom gradually led to the promotion of feminist suspicions and dissatisfaction with religious teachings. Using a descriptive-analytical method for answering doubts, this research has discussed the different evidences for gender difference both in religious texts and inter-disciplinary studies. Presenting the arguments of the famous view and using a holistic–based deduction and fairness for correct and complete judgment about women's rights, in response to doubts about gender differences in the issue of testimony, this paper explains the physical and perceptual differences and the principle of “coordination of creation and legislation differences". It was concluded that gender difference in the issue of woman’s testimony and her inequality with man’s testimony has been in accordance with the wise plan of the world creation and it is not considered discrimination.