پژوهش نامه فقه اجتماعی
پیاپی 19 (پاییز و زمستان 1400)

One of the basic rules in Islamic international law is the rule of Nafy-eSabil. Among the documents of the aforementioned rule, the most important document of this rule is verse 141 of Surah Nisa. The popular explanation of the argument to this verse is based on the implication of necessity; In this way, the will of the meaning of the evolutionary Nafy-e- Sabil from this verse requires a lie, and therefore the legislative Nafy-e- Sabil will be the meaning of this verse. This argument has been challenged in various ways, and although famous Shia jurists have insisted on this verse in various cases, some consider the argument to this verse as incomplete in the mentioned cases. Many researches have been conducted around this rule, which have investigated its evidence, but most of these researches either did not pay attention to the beginning of verse 141 of Surah Nisa at all and expressed the meaning of the noble verse without paying attention to the beginning, or Considering the beginning of the verse, they denied its implication based on the rule of Nafy-e- Sabil and did not examine the narrations below the honorable verse. The present article is innovative in this sense and presents a reading of the beginning of the verse with a descriptive analytical method, which proves its complete implication on the rule of Nafy-e- Sabil as one of the rules governing Islamic international relations.

Life insurance is a new form of contract that has been favored in today’s world exposed to a variety of risks. This insurance provides a value added situation, materially and spiritually, at both small and large levels of the society. The highly advantageous side of this insurance is its affording assurance and security against impending death. There are two approaches to rendering the insurance a sharia-based character: one is its being conforming to the pre-established principles, and the other falls within statute. The solution for conforming it to sharia principles is to adjust it to one of fiqh-based forms of contract: contract of liability (ziman), and contract of settlement (solh) as compared to other forms of contract like hiba, jualah, muzaraba and alike.

One of the duties of governments is to ensure food security as a guarantee of national security. It is assumed that food security is a national security policy and the degree of the latter depends on the quality of the former. Today, fighting starvation is not the only concern and the right for food comprises its healthiness as well. This has created a human right challenge faced by modern technologies that provide biologically manipulated products called transgenetic. The truth is that these new products are not normal since they involve technological and genetic transformations. In other words, they include some ingredients and substances not previously existing in human diet. The present study is about especially the harmful side of this type of product and by raising the jurisprudential foundations of that it offers its guidelines for governments to interfere and prohibit their production.

The right or ruling of the presumption of irrevocability of contracts is one of the topics that, despite its many and different applications and results in jurisprudence and law, has been less investigated and explained. In this research, an attempt is made to firstly explain the nature of rights and rulings, and then by studying and examining the evidence of the legitimacy of contracts, as well as paying attention to the works and distinct characteristics of rights and rulings, as well as evaluating the words of jurists and considering other solutions presented in this case, the status of rights or the irrevocability of contracts to be determined in doubtful cases. In a general view, it can be said that if it is proved that it is irreversible in the contracts, it is not possible for the contracting parties to waive the contracting or transfer, as well as exchange and compromise on it; Because its falsification and elimination is up to the legislator. Whereas, if it is proven to be a right, the possibility of waiving, inheritance, compromise, as well as discharging, cancellation, exchange and transfer is up to the rightful person. This study shows that the presumption of irrevocability of contracts differs in terms of being a right or a ruling in different cases and it is not possible to issue a general ruling in this field. Rather, one should pay attention to detail and by examining the contracts case by case, determine whether they are right or ruling.

One of the major mottos on which the Islamic Revolution is based is resistance and fighting istikbar (world arrogance). This has given rise to contradictory remarks on the part of different social and political groups. The article has a recourse to theoretical fiqh which aims at deducing the foundations of fiqh-based systems in order to survey the limitations of resistance and retreat. The two holy Quranic verses 15 and 16 from surah al-Anfal have been taken as the basis for the conditions that lead to leaving the battlefield. First, the implications of the ayas are examined from both shiite and sunni points of view and any abrogation (naskh) of them is rejected. Other seemingly contradictory ayas have also been taken into notice that could lead us to the limitations of resistance and some criticism of sunni interpretation of them have been offered. Finally, a general rule has been extracted by taking as evidence some fatwas, aya 45 of surah al-Anfal, and since resistance today has extended beyond Iranian borders and even shiite communities, this research has concentrated on Quranic evidence to ensure its reliability and not to limit it to any Islamic school of thought.

Nowadays, cryptocurrencies have found a significant role in the international economic system, and it is necessary to make a comprehensive plan in this field, both for economic purposes and for macro-legal policies and governance; With regard to this necessity, the present research, by examining and analyzing the nature and phenomenon of cryptocurrencies and their technical dimensions, has analyzed some economic and governance challenges created by cryptocurrencies, and in the following, the components and has analyzed and explained the legal challenges related to them; Also, the jurisprudential status of cryptocurrencies in some Islamic countries such as UAE, Malaysia and Saudi Arabia has also been considered. In the next axis, the policy making and policies related to cryptocurrencies in the European Union and the United States are reported, and finally, in a comprehensive and analytical manner, proposed policy approaches to cryptocurrencies are presented.

Crime reporting is one of the tools that have been used in the light of the implementation of cooperative criminal policy and have significant effects in terms of crime prevention, improving the transparency of the criminal justice system, compensating the gaps in the process of prosecuting crimes, improving criminal statistics, reducing the costs of the criminal justice institution, and preventing impunity. In Iran, due to the position of jurisprudence and the application of laws and regulations to it, the relation of this institution to the foundations of jurisprudence has a special position. In this research, the arguments and bases of both groups for and against crime reporting are pointed out, but the findings of this research show that based on many jurisprudential rules and rulings and by observing some rules in the field of crimes such as crimes against chastity, this mechanism can be used to control crime in Islamic society. It should be mentioned that this use should be in such a way that the reputation of Muslim people is fully preserved and their dignity is not damaged, and on the other hand harms such as backbiting, gossiping and spying do not spread in the society.

Annulment of marriage is considered as one of the causes of dissolution of marriage contract, the causes of which are mentioned in jurisprudence and law. In twelvers jurisprudence, cases and causes of rescission are mentioned in the discussion of "defects" and the civil law of Iran also mentions these defects in articles 1121 to 1123, following the opinion of famous jurists, and in article 1128,  the breach of the condition regarding qualification is  considered as the reason for the annulment of the marriage. The investigation of these cases has been done by many researchers and there is nothing new to say in this regard. However, the issue that has not been addressed is the question of whether the reasons for annulment of marriage are unique in these special cases, or whether there should be development in this field? In this research, it has been tried to analyze all cases in which there is a possibility of annulment of marriage by inductive method, and the findings of this research show that annulment of marriage is not exclusive in the cases mentioned in the law, and there are other cases that should be added to the list of reasons for annulment of marriage.

Muzariba has been a very important type of contract much favored in usury free banking and has appeared in Iranian Usury Free Banking Act. The spirit dominating Islamic muzariba is sharing the transaction risk between the investor and the agency, a fact that has rendered the whole activity justice-based. Besides, some fiqh principles related to profit making prove the necessity of this kind of risk sharing to the extent that if neglected the whole financial contracts will be rendered void. The study is to seek how to adjust the principle of annulling the usurious sale to muzariba. According to this principle, in case the individual lacks guarantee in regard to his property, the ensuing profits do not belong to him. The results show the provision included in the contract denies guarantee for the bank as the owner of the capital, while it has been supposed to share the profit according to the contract. Hence, any “solh” or settlement provision in contract is practically breaching the principle and will lead to the annulment of muzariba.

Deliberate abortion is immoral and forbidden by sharia. It is permitted, however, only in case there is risk in pregnancy or the possibility of the fetus’ anomalies. In the latter condition, the law protects motherhood by resorting to the ‘distress and constriction negation’ principle (usr-o-haraj). The article intends to take a critical look at the issue by exploring the necessity of the father’s consent to abortion, due to the fact that if the mother’s health and survival is at risk, the father’s consent is out of question, but when there is the risk of fetus’ anomalies and the application of ‘distress and constriction negation’ principle, both parents are involved. Here, we are discussing the child’s right of survival that the father has to abide by, and want to prove the fact that if the father disapproves, the therapeutical abortion must not be carried out. Hence the need to revise the law pertaining to the absence of the father’s consent. We have benefited from proofs such as the father’s kinship, his obligation for his family’s subsistence and guardianship.

The present research examines the validity of the rule of certitude and the effect of accepting the validity of this rule in deduction Jurisprudential rulings. Undoubtedly, the acceptance of this rule is dependent on the acceptance of the implications of the narrations mentioned about the validity of Istehhab, and although the famous late Usulists believe that Istehhab traditions do not have the comprehensive authority for both the rules of Istehhab and certitude, and therefore they have removed the institution of the rule of certitude from the evidence of Istehhab, but in their opinion It seems that among the narratives of Istehhab, the narration transmitted by Mr. Sadouq (may Allah be pleased with him) can prove the validity of this rule in its minimal interpretation - i.e., the signing of works based on prior certitude and ruling on the validity of past actions based on that certitude - if the document and evidence are accepted. Also, in the supporting documents of the Wrappers (Faraq) and Passing (Tajavoz) rule, there are interpretations that can be positive for the certitude rule in its minimal interpretation.

The permissibility of a non-innocent judge relying on his personal knowledge in issuing a verdict is one of the old and long-standing issues of jurisprudence, which has become a problem today and is a problem for the judicial system. The personal knowledge of the judge in Islamic jurisprudence has been emphasized since the beginning of Islam as one of the ways to prove the case according to the consensus of the jurists, especially the twelvers jurists. Since the main origin of laws related to jurisprudence is, it is necessary that the opinions and evidences of jurists regarding the science of the judge should be investigated from a jurisprudential point of view. In the present article, which is written in a descriptive-analytical method, after expressing the opinions raised about the said issue in jurisprudence and law, the foundations of the theories are examined. Considering the challenges of citing the knowledge of the judge by authorized judges in the judicial system, it goes without saying that today in the Islamic Republic of Iran, there is a way to standardize the judicial method in Islamic courts - even according to the famous creed among recent scholars (the absolute validity of the knowledge of the judge)- It can be used, limiting the competence of the authorized judges by the guardian is that the established lawful fixed ways of judging, such as testimony and oath, are considered valid by them, not cases that have personal knowledge.