مجله پژوهش های فقهی
سال هجدهم شماره 2 (تابستان 1401)

The challenges of understanding "right" indicate that "right" is a broad concept in a way that most abuses and misunderstandings in the historical and civil space have been influenced by this concept. The purpose of this article is to analyze the jurists’ reading of the concept of right. It also seeks to study this concept in different religions and jurisprudential approaches in order to achieve the effect of the concept of right in the formation of religious state and its scope of authority over citizens’ rights. The importance and the need to write this text is because of the fact that socio-political demands as well as the legitimacy of the formation and continuation of the religious government are effectively linked to the interpretation of the concept of right and the development of the concept of "freedom" and its change from "liberation and removal of internal vices" to "freedom from formal and informal obstacles". First, it is necessary to attempt to explain the concept of right as the basis of all citizenship rights in political jurisprudence. From the results of the present writing, which is written based on a descriptive-analytical method, it is possible to draw the principles and development of jurisprudential perceptions of the concept of right and its transformation (i.e. changing the tools and process of inferring right), including three theories of custom, production, obedience right and legal validity. Proving the "effective ratio of the concept of the right to build a state as well as the scope of competencies of the religious state in seizing the people" is another result of this article.

In legislator’s view the full blood money for two healthy eyes is proved. Regarding the blind eye, one-sixth of the full blood money is determined by the legislator. In the case of the healthy eye of individuals with one-sighted eye, a distinction has been made between congenital blindness and non-criminal blindness and blindness due to criminal causes. In the first case, full blood money and in the second case, half of the blood money have been determined by the legislator. The main question for which the present dissertation seeks to find an answer is how much blood money has to be proven if the healthy and blind eyes of a person are destroyed as a result of a single crime or if the blind eye and the eyesight benefit of the other eye are destroyed? The capacity of the Islamic Penal Code in this regard is to justify the verdict of one full blood money and one sixth of it based on Articles 588, 589 and 691 I. P. C. to the judges of the courts. Although in the view of the former jurists the issue has been neglected, the referendum of contemporary jurists shows the difference between them. In this regard, there are totally three opinions: 1. there is a group that dictate a full blood money for the sighted eye. Considering the blind eye, the same group is divided into two groups: some believe in the proof of the indemnity and some speak of the blood money of the unhealthy eye. 2. Some have voted for half of the blood money for the sighted eye and one third of it for the blind eye. 3. Some also consider the judicial decree of a full blood money as a precaution. The author also considers the judicial decree of a full blood money to be valid and obvious as the requirement of jurisprudential principles. Extracting and adjusting the due principles, the present study expresses the principles of fatwas and evaluates them. Through the synergy of the principles and ijtihad method, this study strengthens the latter view. Also proposing amendments to articles of the Islamic Penal Code, it tries to provide the necessary arrangements for judges in courts to issue rulings in accordance with jurisprudential teachings.

Despite numerous statements in the narrations of Shi'ite Imams (peace be upon them) which strongly deny socially institutionalized discriminations against girls, making quests for the son by his parents is recommended in Shi'ite jurisprudence. The validity of this rule in jurisprudential texts has not been examined by methodic meticulousness. Although there is no valid traditional reason for the child to be a son, requesting for son has been repeated in most jurisprudential texts. This inconsistency has been critically investigated in the present article by answering two questions: the question of how the word ‘son’ has been entered into these texts from the book Al-Nehayah by Sheikh Tusi, and the question of why this rule has not been examined by methodic meticulousness. Analyzing the narrations and jurisprudential texts, it becomes clear that this rule has penetrated into the jurisprudential texts since the time of Sheikh Tusi without any clear reason and has continued to exist until the time of Yazdi and afterwards. Finally, this issue has been examined by proposing three possible explanations, among which the effect of jurists’ subjective presuppositions during the study of narrations has been evaluated as a more appropriate explanation.

The rule of "AL-'Ibrah Bi 'Umum AL-Lafzi La Bi Khusus Al-Sababi" is one of the rules of principles of jurisprudence (Usul) that is accepted by the majority of jurists. According to this rule, if a Shari'a ruling is issued generally or particularly on a specific reason, the ruling is generalized to other cases relying on the generality or particularity of the word. However, there are some other opinions in this regard. Using a descriptive-analytical method, the authors of this study aim at examining the existing statements in this regard and explaining the various aspects of this subject. The results of the study indicate that if the ruling issued on a specific case bears a positive generality its generality is valid, but if the ruling issued bears an absolute generality, the absoluteness of the reason as a specific indication prevents from its overall generality and the ruling is assigned to the specific reason.

The purpose of this study is to perform an analytical study of religious endowment (waqf) and to provide a model to institutionalize endowment culture in the universities and higher education institutions. This research has a hybrid strategy. Therefore, the studied population are qualitatively and quantitatively different. The qualitative part of the statistical community includes experts in the field of endowment. The quantitative population studied in this study includes all donors and high level managers of universities and institutions of higher education of Hormozgan province, whose number is 135 according to statistics. For quantitative analysis and to test the hypotheses related to the components of the model and the whole model of the research, T-test is used. For this purpose, SPSS version 22 is used. For the qualitative part, the grounded theory approach and Maxqda10 software are used. The research findings show that this research is a model consisting of six dimensions (education, facilitator, strategies, culture, barriers, and results) and 42 components. It was shown that universities and higher education institutions should pay attention to the variables of education, facilitator, strategies, culture, barriers, and results in order to move towards the institutionalization of endowment.

The rule of darʼ which obviates punishment in case of suspicion, is one of the most important criminal rules that has been considered more comprehensively by the legislator in the Islamic Penal Code of 2013. With regard to the application of the rule to suspicions which arise at the stage of proving the case of prescribed punishment before the judge, the question arises as to whether the punishment should be dropped at the same time that the suspicion arises, and the judicial authority is prohibited from conducting investigations to uncover the truth. Or the effect of the rule requires that suspicion remain despite the completion of the investigation and therefore the judge is obliged to investigate or basically, the decision in this regard is delegated to the judge. A descriptive-analytical study conducted in this article indicates that Islamic jurists do not agree on this issue, but the available hadiths and narrations indicate that the prescribed punishment is dropped provided that the research has been done. The expressions of the articles of the Islamic Penal Code in this regard has not been precisely regulated in such a way as to indicate the prohibition of the investigation, except in some exceptional cases where the removal of the prescribed punishment is subject to the completion of the investigation. Examining the background of the enactment of the provisions of the Code shows the inaccuracy of such an inference, which is in conflict with the jurisprudential principles.

Apostasy is a matter that affects people’s lives. In most the apostate is sentenced to death. Religious and jurisprudential government of Islamic Republic of Iran from one hand and the opposite views on the other hands add to the importance of this matter. The present article aims at studying and reviewing the quality and the quantity of what has been stated in the historical reports about apostasy and the killing of apostates. The main discussion is about the time of prophetic mission and the Holy Prophet’s practice as the Muslims’ major jurisprudential source. The article concludes that according to historical reports the execution of the people who were accused of apostasy is not clear and the order to kill them was given by the Prophet Mohammad (PBUH) was for other reasons. In addition, it seems that in a number of cases the murder of the apostates was influenced by the atmosphere at the time of the first caliph and the Raddeh wars in the Early Islam that many Muslims were killed on charges of conversion.

Apostasy is one of the challenges of monotheistic religions, and religion, while emphasizing the acceptance of Islam and faith, forbids disbelief and apostasy. A number of punishments have been considered for apostates in jurisprudential texts. Apostasy is not just a matter of words; its realization requires the existence of conditions of religious obligation, such as reason and will. However, maturity as one of the general conditions of religious obligation in the occurrence of apostasy is the place of disagreement among jurists. Among those who consider maturity as a condition for the realization of apostasy, some have limited themselves to religious maturity and they have not considered intellectual maturity and the expression of Islam after puberty. This issue is so important that its result affects directly the lives of newly matured juveniles and it can put an end to doubts and disagreements about not observing of the rights of this group in Islam. The result of the research shows that maturity is a necessary but not enough condition in the realization of apostasy, and the purpose of Islam in this matter is true Islam; the subordinate Islam alone is not enough. The present research has been done in a descriptive-analytical method with reference to library sources.

Although the principle of necessity in all contracts has been stipulated in the article 219 of civil code, an examination of the principles and arguments shows that the acceptable evidence to prove the necessity does not include suspension contracts. For necessity, it has been relied upon both ijtihadi reasons included in the Quranic verses and Islamic narrations as well as the manners of the wise, and upon juridical reasons of partial istishab[1] and second type of the general istishab[2]. The use of the manners of wise and the second type of general istishab in the necessity principle is due to a misunderstanding of the necessity and permission nature. This research shows that the necessity and permission are neither concluded from the self-requirements of the contract (reason) nor the attributes of the ownership (cause), but it is a religious rule which is governing the contract (reason). However, there is no problem with using the ijtihadi reasons included in the general Quranic verses and Islamic narrations in the doubts concerning the presence of duty as well as the principle of partial istishab of the continuation of the ownership of the current owner in doubts concerning the presence of duty and partial objective doubts for proving the necessity. The more correct opinion is that the scope of the general flow indicating the principle of necessity and the principle of partial istishab does not include suspension contracts. If the situational law is abstracted from the positive law, this opinion will be valid and the necessity principle will not apply to suspended contracts.

Regarding the religious endowment, a discussion is raised among the jurists and researchers about the position of the intention of closeness to Allah in religious endowment and therefore the result of its essence. The Civil Code, which examines the rulings on religious endowment, has not stated the necessity of stipulating the intention of proximity in religious endowment. There are three views among jurists in jurisprudence; some consider the intention of proximity in religious endowment as a condition of correctness, and some deny the condition of the intention of proximity. The third group also elaborate between general and specific religious endowment. They consider intention as a condition for general endowment but not specific endowment. The present study, using the analytical-descriptive method and relying on the library method as well as the originality of the absolute, the validity of the infidel’s religious endowment, the lack of reason for the necessity of the intention of proximity, it has been concluded that the intention of proximity is not a condition for religious endowment. The silence of Civil Law can also be attributed to the acceptance of this theory.

The purpose of the religion of Islam is to provide the human’s prosperity in this world and the hereafter. Therefore, Allah has provided the human with necessary commands in all areas. If each of these orders and laws are properly and fully implemented, it will lead to the reduction of social injuries. Since promotion of good and prevention of evil set the ground for healthy social education, it is an effective mechanism in preventing social injuries through creating a sense of authority in various social ties. In addition it creates a general sensitivity against sin and prevents deviation. Therefore, many social injuries are spread across the society because these two religious obligations are neglected and the different classes of people feel indifferent and irresponsible against social injuries. This paper, while investigating the role of promotion of good and prevention of evil as a jurisprudential strategy in reducing social injuries, discusses a number of solutions to promote and restore these two divine duties in the community. This study aims at identifying the effect of these two religious obligations in reducing social injuries which will lead to their practicing and promotion. As a result, the abnormalities and deviations in the society will fade and disappear. This research uses descriptive-analytical method and library study to collect data.

Whether or not a Muslim retribution against an infidel is allowed a matter of dispute between Imamiyyah and Hanafiyyah jurisprudence. This issue can be raised in various fields such as jurisprudence, law and exegesis. There is a serious need for analysis of this issue in the field of exegesis. Because there are methodical and analytical defects in non-independent researches. Also, interpreters and jurists have many differences in dealing with this issue. The purpose of this article is to achieve the correct interpretation of the verses of retribution. The present article considers the theory of impermissibility of retribution as a valid theory with valid evidences. Because there is a verse in the Quran which rejects any infidel’s domination over Muslims. This verse implies the rejection of the aforementioned retribution which is an example of the rejection of infidel’s domination over a Muslim. Authentic narrations also indicate that retribution is not permissible. Sense prevention of that retribution is also unacceptable.

In some cases of international private law, the judge should hear them based on foreign legal system, but sometimes the system does not consider its law to be competent to government in the subject of that dispute, and refers to another law, which it raises the issue of change of venue. The books and papers discussing the change of venue have answered the above-mentioned question often by describing legal materials related to the change of venue and perhaps by quoting and criticizing the different views on accepting or rejecting the change of venue in the area of positive law. However, there is also the question of whether the issue of the change of venue is raised in Islamic jurisprudence and law. Assuming that is the case, whether it has been accepted or rejected absolutely or relatively. The literature review shows that no Persian and Arabic books and papers have answered this question yet. Therefore, it becomes clear that dealing with this subject is important and necessary. This article analyzed logically the change of venue (the quality and origin of the jurisdiction of foreign law) in customary law, and compared it with Islamic jurisprudence and law in order to respond to that question. Finally, the article concluded that in Islamic jurisprudence and law, if the implementation of foreign (non-Islamic) law is not relevant, the change of venue is acceptable, and if it is relevant, it is not acceptable.

The present study was conducted to explain the jurist’s strategy in the face of the incompatibility of two implicit obligations in practice. The study uses a descriptive-analytical method with legal reasoning (ijtihad) approach. The issue has been considered by jurists since the time of Sheikh Tusi. Four views have been proposed in this regard. The present study rejects the views of inconsistency (tazahom), antinomy (ta'aroz), and the period between two emergency substitutes in the problem and accepts the fourth view. According to this view, the jurisprudential process in the contradiction of two implicit obligations in a religious compound is such that the jurist rules on fulfill the first part or condition of the components and conditions, one of which is possible. Then, if it is not possible to fulfill the second component or condition, it is the turn of the incomplete agent. Finally, if it is not possible to perform the incomplete agent, it is the turn of the substitute. Of course, in conditions where there is no precedence and lag and in case of incompatible components and conditions in the two canonical compounds, if one of them has no advantage or preference over the other, it will be judged to select one of them. Thus, no discrepancy between components and conditions is conceivable in legal compound. And the theory of inconsistency (tazahom), antinomy (ta'aroz), and the period between two emergency substitutes in communication compounds becomes negative.