پژوهش نامه فقه اجتماعی
پیاپی 17 (پاییز و زمستان 1399)

One of the respected principles of human societies is the freedom of will of individuals to fulfill their interests. Therefore, not only individuals but also public forces cannot prevent the freedom of will of individuals to enjoy social and economic benefits under any pretext. However, in some cases, the free will of individuals to gain the most benefit is at odds with each other, so that the absolute release of the will of individuals to gain the most benefit, in some cases, harms others. Therefore, determining the limits of freedom of the will of individuals and balancing it and the harm that may be caused to others by this freedom is very important, so that determining it can have a broad impact on the overall progress of a nation-state. Due to this necessity, many schools of thought throughout history have commented on this issue, including the Islamic and Western schools of thought. The philosophical ideas of these two schools, one of which is included in the Islamic rule of "no-harm" and the other in the western rule of "harm", have led the present article to examine the commonalities and differences between these two rules in common interaction to finally conclude that from the perspective of jurisprudence, the freedom of will of individuals to fulfill their interests is of particular importance to ensure the maximum social welfare of society, and governments, in addition to not hindering the activities of the people, but in their management of conflict of interest, must first seek to consolidate the interests of individuals with each other and if that is not possible, give priority to satisfying the interests that have the most public function for most people in society.

In the common view, guiding the principle of proportionality to discretionary punishments awarded by judge, and not leading it to the unalterable punishment prescribed by religious, is considered as one of the differences between prescribed punishment and discretionary punishment awarded by judge. This difference, in a way, is due to the absolute stability that, in the common sense, exists for prescribed punishments in terms of the type, amount and quality of execution of punishment. prescribed punishments do not include the principle of proportionality, because, based on the assumption, the application of this principle requires flexibility, which prescribed punishments do not have. With an analytical-critical approach, this article shows that the holy shari'a of Islam has made every effort to apply the principle of proportionality in prescribed punishments. This, in turn, negates the claim that the principle of proportionality does not apply. On the other hand, according to the emphasis of the Holy Shari'a of Islam on the "principle of justice" as the basis of the principle of proportionality, can and should, relying on the capacities that exist for expedient change in prescribed punishments, the principle of proportionality in all punishments, including prescribed punishment and discretionary punishment awarded by judge always strengthened and guaranteed. Thus, prescribed punishment and discretionary punishment awarded by judge will not be different in terms of applying the principle of proportionality.

Predecessor papers as one of the sukuks (securities designed based on Islamic contracts) are very effective in financing companies. The most important jurisprudential debate among Islamic economists has been the ban on selling them before maturity because these bonds, the document indicates the ownership of a certain amount of goods for their holder, the issuer is responsible, in which case their sale before maturity is nothing but the sale of the predecessor buyer and famous jurists do not consider this sale permissible. The challenge that this ruling poses for futures bonds in practice is that the secondary market imposes them on sharia restrictions. Islamic economists have tried to prove the permissibility of this sale by criticizing well-known reasons because if allowed, predecessor papers will be sold more easily and there is no need to provide operational models such as parallel predecessor.
Despite valuable jurisprudential discussions on this subject, these papers have not yet been studied independently and in detail in jurisprudence, and the jurisprudential committee of the stock exchange in its resolution, still considers this issue as a place of jurisprudential discussion, so a detailed study of this challenge is the purpose of the leading research. The results of this study indicate that the sale of the predecessor before maturity is not permissible and the right is with the majority of jurists.

International treaties are a kind of obligation of the parties that is the responsibility of the contracting parties. These contracts are sometimes financial and commercial and sometimes other than that. If an international agreement is concluded between an Islamic state that has a legitimate government and illegitimate governments, whether Islamic or non-Islamic, on a financial issue, there will be doubts. These contracts sometimes form financial agreements and sometimes intergovernmental transactions, both of which face jurisprudential challenges. The status of illegitimate state ownership of public property, especially Anfal, the illegitimate use of funds received by illegitimate governments and the consequent validity of donations to the obligor, etc. are among the challenges that have arisen in this type of obligation. In this research, an attempt is made to examine the mentioned challenges and to Terminated contractand the necessity of fulfilling international agreements. Explaining the meaning of contributions to sin and examining the rule of expediency of public facilitation and rescue are among the cases researched in this article.

Jurisprudential rules are general propositions that play a key role in deriving sharia rules. The rule of no-harm is one of these rules, according to which whenever the provisions of Islamic law cause harm to the obligees, it is lifted. An important drawback to the above rule is that in cases of non-legislation of the Holy Shari'a, no-harm did not have the necessary efficiency and accordingly, no rulings can be made to neutralize the loss, because in this case, he is faced with the great obstacle of establishing a new jurisprudence. The above point is the most basic focus of the study in the present study. The author has a serious critique of this theory and in a descriptive-analytical research, while enumerating the proponents and deniers of inclusion on the non-existent matters presented by them, he has put them in the test of jurisprudential criticism. The necessity of the discussion is that, assuming the proof of the rule in non-existent matters, this capacity can be used to respond to emerging issues and various jurisprudential challenges in cases of legal vacuum. The conclusion of the debate is that the establishment of a new jurisprudence in itself cannot be a barrier to proving the verdict with the rule of no-harm. Therefore, no-harm is unconditional and the provisions of the rule are both the negation of the verdict and the proof of the verdict; Therefore, no-harm has the power to veto and neutralize harmful judgments, as well as the power to enact and legislate.

The desire for immortality is in human nature; Hence, man makes every effort to live eternally. One of the scientific hypotheses related to prolonging life is the cryonics of incurable patients. In this method, scientists freeze the patient's body and put her into a deep sleep in the hope that after discovering the definitive treatment methods in the future, they will bring her back to life. This practice as an emerging phenomenon has provoked various issues from a moral, legal and jurisprudential point of view. Some jurists, arguing that cryonic performance means the end of the patient's life is incurable and there is no certainty in the patient's resuscitation in the future, the patient's attempt to do so is a case of concussion and suicide and its execution by doctors have been considered a case of murder. Some jurists, assuming that the cryonics patient is alive, have considered it haram because the intentional creation of this condition prevents her from performing her religious duties. On the other hand, some jurists, citing the rule of the necessity of preserving human life and kingship over the soul, have considered the implementation of this operation permissible on the condition of ensuring the patient's life and the necessity of preserving her soul. It seems that since frostbite does not mean taking the life of the patient alive, but it is a big step to save her life, and since the implementation of this method is necessary as the only way to continue her life, the promise of the jurists of the latter category is paramount.

If the object of sale is defective in the contract of sale and needs to be repaired, the customer will have the right to terminate the contract under certain conditions. In this case, if the customer wants to exercise his right of termination, and on the other hand, the seller insisted on maintaining the contract and executing the contract, and to eliminate the non-compliance of the goods and to compensate for their negligence, a serious question in this regard arises here: what effect does such an action have on the buyer's right of termination if it is reasonable, appropriate and harmless? In clearer terms, if in our case the seller removes what has caused the option before the termination of the contract by the beneficiary of an option (buyer), in such a case, does the right of termination disappear or not? In this article, we review this important issue in Iranian jurisprudence and law, the International Convention on the Sale of Goods, adopted in 1980, and international trade principles. It seems that in each of the above-mentioned systems, apart from minor differences in the terms and conditions of application, acceptance of contract retention and height preference caused by the seller to create an option has priority over the customer's option. The research method in this research will be descriptive-analytical.

One of the emerging areas that is in dire need of characterization is the field of media ethics. The media now overshadows all areas of human life (thoughts, feelings, and actions) and has transformed man's fourfold relationship with himself, God, nature, and other human beings. One of the most important tangible areas in which the media has the power to transform is the area of human relations with other human beings, which shapes social ethics. In this study, instead of using only statistical methods in characterization, the expert method in producing social ethics characteristics in the media is emphasized. Also, the approach based on which the indicators of social ethics are computed in the media is not the approach of collecting existing indicators; Rather, the author seeks to construct desirable indicators of the moral media in the field of social ethics. The theory of social interdependence responsibility has been used to explain and analyze the desirable characteristics of moral media in the social field. Institutions subject to interdependence responsibility (such as family, relatives, neighbors, friends and religious brothers) in the context of non-market or moral relations, by providing all the needs and solving all the problems of society, play an important role in establishing and strengthening a moral society. Now, the media of the style of the Islamic Revolution, with the help of relying on the theory of social interdependence responsibility, can play an important role in shaping the characteristics of moral media in the social field. Therefore, by using the verses and narrations about the institutions on the subject of interdependence responsibility, we can understand the requirements for the dissemination of social ethics in the media. The most important requirement in this area is the denial of individualism and the promotion of a culture of cooperation and collaboration in the context of institutions subject to interdependence responsibility. Family orientation, kinship, good neighborliness, friendship and relationship between believers in Islamic society and the do's and don'ts of each of them are among the characteristics that the media can promote and strengthen social morality in society to the extent that they are close to them.

The execution of divine punishments in different periods has been a controversial issue in Islamic jurisprudence. The point of contention among the earlier jurists has been mostly about the axis of assignment or non-assignment to the infallible custodian or the condition of infallibility or its unconditionality for execution. In the contemporary era, with the introduction of two separate categories, namely "hermeneutic knowledge" and "human rights", this debate has also been affected; On the one hand, the focus of the debate has shifted from being assigned to an infallible custodian to being "assigned to the age of resurrection", and on the other hand, due to the need to raise humanitarian rights issues, the concern of preventing the weakness of Islam has become another field for talking about non- execution of the punishments. This article, with an analytical-critical method, intends to present some reasons beyond the scope and generality of the verses that the Republic of jurists have dealt with, in order to prove the transcendence of divine punishments, relying on some teachings and reasons related to the Holy Quran. The findings of this study show that the arguments of the opponents of the transcendence of punishments are insignificant if measured by the measure of the Holy Quran

Evaluating crime costs and trying to reduce those costs have a long history. The first assessments were made in the United States in 1929, and the results showed that criminal policymakers do not pay much attention to the study of this aspect of criminal law. But as we know, the cost-benefit criterion is a good tool for evaluating the results of legislation; A tool that helps the legislature determine the policy that will increase the welfare of society by evaluating the costs and benefits of different criminal policies. In this way, the policymaker can achieve optimal resource allocation where resources are scarce. The criterion of complementarity of criminal law, on the one hand, seeks to internalize the costs of crimes, and on the other hand, in crimes with high economic returns, in order to raise the level of deterrence, it prescribes the exercise of execution guarantee of criminal law as a complementary rule for the legislature. Also, achieving optimal punishments has been proposed as one of the high goals of economic analysis of criminal law and in this regard, they explain what is considered as an optimal punishment from an economic point of view. In this article, with a descriptive-analytical method and with a practical approach, we will analyze the approach of criminal law and Shiite jurisprudence regarding the evaluation of the cost of a criminal phenomenon (crime).

Justice has been proposed as a jurisprudential rule by some contemporary jurists and thinkers, including Ayatollah Morteza Motahhari. Given the great importance and emphasis of the Qur'an and Islamic traditions on the criterion and degree of justice in Islamic regulations, there seems to be no doubt that justice is the rule; But considering the various meanings that are expressed in various fields for justice, we must see what are the provisions of the jurisprudential rule of justice? And really, what should be the amount and criterion of the ordinances? Ayatollah Motahhari, who himself has introduced the rule of justice, has not mentioned this issue directly; But in his works, on the one hand, justice is referred to the observance of entitlement and protection of real and natural rights, and on the other hand, there are jurisprudential and legal adaptations and examples that refer to justice in this sense. It seems that this meaning can be the provisions of the rule of justice and be used especially in legal matters; this means that the inference and implementation of Islamic rules is based on the observance of natural rights and is measured by this criterion.

One of the new methods used in laboratory fertility is the surrogate or surrogate uterus method, which is used for people who do not want or can not keep the fetus in their womb during pregnancy. From a legal point of view, the most important challenge in this method is who is the mother of the born child? A person with whom he has a genetic relationship (the owner of the ovum) or a person who has a physiological relationship (the owner of the uterus)? Or both? Attention to the legal and moral effects of identifying the legal status of the mother, including honor, inheritance, custody, etc., highlights the importance of discussing this issue. The legislator has not set any rules in this regard, so to answer this question, the principles, jurisprudential and legal opinions, and most importantly all the verses of the Holy Quran are discussed. First, the reasons for those who believe in the relative relationship of a woman with a newborn child are examined , and then it is concluded with reasons such as lexicography of “Om” and “Waleda”, custom, verses, etc., that both women can be considered as the mother of the child.