نشریه دین و قانون
سال ششم شماره 20 (تابستان 1397)

Legislation system should outline a specific framework for reducing poverty and deprivation, and then codify, ratify and expurgate the laws. The lack of definite goal-setting being appropriate for different people in an unequal situation along with the approach of rightful justice realization has always slowed the path of poverty alleviation in society. Moreover, the scattered laws and programs without any certain order, and mostly with a distributive justice realization approach could have not yet been able to succeed in the field of ​​poverty reduction. One of the key components in codifying the country's legislative policies in the realm of reducing the harm caused by poverty- which of course is neglected- is the way lawmakers look at the issue of positive/affirmative discrimination. In the present study, one of the fairness-based policy-makings that has been widely adopted and implemented in different countries of the world, i.e., affirmative discrimination policies is analyzed. Referring to the conceptual indicators governing affirmative discrimination policies along with its actual application in the legal system of the Islamic Republic of Iran, the researchers have sought the conceptual and actual development and implementation of supportive policies for the less well-off sections of the population with the aim of accelerating the process of poverty alleviation in the Iranian legal system.

This paper examines the scientific feasibility of using ertekaz-e ‘uqala[1] and the two judgments based on theoretical and scientific wisdom. Scientific feasibility means evaluating the capacity of the aforementioned affairs on the basis of rational standards (or rational methods) in obtaining the judgments made upon social facts from the important sources of the Sharia. Generally, feasibility can be proposed in two hypotheses: 1. Feasibility of the status quo of fiqh in the method of acquiring fiqhi knowledge 2. Feasibility accompanied by attention to changes in the method of acquiring fiqhi knowledge. The researcher of the current study believes that feasibility in the first hypothesis is very limited so that one cannot hope to unravel any problem regarding social facts. In the second hypothesis, however, feasibility has the capacity to fit social facts, and by accepting it from important sharia sources it is possible to obtain the facts according to their inherent requirements. The study accepts the second hypothesis and attempts to explain the key concepts discussed through proposing the necessity of obtaining personal reasoning in the validity of the appearances of the Qur'an and the Sunnah. Additionally, through proposing a valid rational reasoning, the study increases the capacity of utilizing the ertekaz-e ‘uqala, the theoretical-wisdom-based judgement and the scientific-wisdom-based judgment. Therefore, such an approach necessitates highlighting the role of abstract and concrete reasoning in understanding the judgments of social facts. This role has a negative function in the form of restriction, allocation, and sometimes textual exclusion whenever it has the possibility of rejection or elimination.

 

[1] The gradual fixation of a concept in the mind is called ertekaz, and if ertekaz is by the wise people especially the thinkers, scholars, and scientists regardless of the religion they follow or their beliefs, it is called ertekaz-e ‘uqala (ertekaz of wise people)

In the Islamic Republic of Iran, two different bodies have been involved in policymaking in the field of family, one being the Expediency Discernment Council of the System that by virtue of the first clause of Article 100 of the Constitution is responsible for determining the overall policies of the family, and the other is the Supreme Council for Cultural Revolution that claims to have the dignity of policymaking. To date, numerous documents about family have been compiled by the two authorities, wherein the general family policies   such as " The General Family Policies announced by the Supreme Leader of the Islamic Revolution in 1395", and "The Goals and Principles of Family Formation and the Consolidation and Excellence Policies on Family approved by Supreme Council of the Cultural Revolution in 2005" directly or indirectly have been set out. The multiplicity of policy makers, the lack of positive interaction between them, as well as the independent action of each of the mentioned bodies in setting general policies, have caused several damages  such as the confusion over supervising general policies in legislation and implementation of the laws, the dispersion and inconsistency in the declared policies, the overlapping of general goals and policies, and the overlapping of general policies and executive programs.

The issue of social damages is one of the most important threats to social life that by destroying society's strengths and abilities has a devastating effect on the health and community development process. Poverty and unemployment, begging, corruption at petty and grand scales, immigration and slum residences, addiction, moral corruption, sexual perversion, running away from religion, divorce, theft and homelessness are common causes of social harm and other problems and damages. Posing the main question of the study; that is, "What is the role of Islamic jurisprudence in identifying social damages, their contexts and the causes of their creation, as well as prevention, control and reduction of the damages?", and with an emphasis on the religious foundations and rich doctrines of Imamiyyah fiqh, the study has an attempt to prove that this fiqh enjoys the capacity and potential in this regard which has less been attended to. The findings of the study show that social damages do not arise except by disrupting one of man's quadruple communication with God, with his fellow man, with the nature and the relationship with himself. Besides, with regard to the subject and purpose of the principled knowledge of fiqh and its capacity and thresholds - which covers all four of the mentioned relationships – this knowledge along with different institutions can be used to identify, prevent, and cure social harm at the macro and micro level. The study also emphasizes that the capacities and functions of fiqh in the face of social problems and damages must be properly identified and exploited. As some instances of these roles, we can refer to fiqh’s role in identifying social damages, its role in protecting society through social systems, its function in legislation, and its capacity in promoting awareness and empowerment.

One of the fiqhi and usuli[1] principles in which extraordinarily theological and social approaches are applied is the rule of fixability and variability. A rule that, aside from neglecting its study, a careful and exact look at it can serve as the basis for systematic and advanced legislation in Islamic society. This paper has attempted to explain the systematic approach in this regard by considering social reality as a variable and achievement-oriented ijtihad[2] in the sources as a fixed principle. Within such a framework, social reality will always interact with the sources and principles of fiqh at the time and place as the subject of the commandments and the practices of the practitioners. If this issue is well established, the result of the interaction of this dynamic and efficient fiqh will be in most systems of law for society. The study has struggled to emphasize the innovative or newly-established subjects (wherein fixed and variable fiqhi rule takes place) and the social understanding of the scriptures/sources (as the ijtihadi[3]/argumentative discovery strategy) so that a systematic adaptation to the desired result of the fiqh of legislation which is based on reality is formed. Since designing such patterns are detail-oriented by nature, it is possible that the goals and ends of the sharia is neglected or distorted and thus the present study has designed this system based on paving the way for fitrah as one of the goals of sharia.

The importance of dealing with foreign exchange crimes and the adverse effects of the spread of such crimes and its relation to the consolidation of the economic pillars of the ruling political systems has prompted the legislator to adopt specific measures based on the severity of the punishment of the perpetrators. Although, studying and analyzing criminal policy of our country in dealing with criminal offenses in foreign exchange has been investigated in numerous scientific texts, the study of  these policies in accordance with existing theories and standards in criminology and thus presenting a scientific and practical approach in managing the risk of these crimes from the criminological point of view has not yet been focused by the scholars in the field. The present study explains briefly how to deal with these crimes, and discusses the pertinent legal and judicial policies to see if they ae in harmony with the prevailing new theories in the field of criminology. Finally, the study proposes appropriate approaches to foreign exchange crimes management.