فصلنامه فقه و اصول
پیاپی 131 (زمستان 1401)

Guardianship over the marriage of the virgin Rashidah is a controversial issue among Imami jurists. In this matter, following the unpopular opinion in Article 1043, Iran's civil law has accepted such a guardianship and following the jurists' view of the validity of the guardian's permission, it has been decided that if the guardian refuses to give permission without a valid reason, the validity of his permission will be revoked. The challenging issue is that in the case of unjustified obstruction, the guardian's guardianship is lost only in relation to the azl  or in general and in all matters?After following the arguments and opinions of the jurists and analyzing the mentioned issue through the analytical method of documents, the author has come to the belief that the proof of such guardianship is only for the purpose of respecting the interests of the pupil and in case of the guardian's azl, his incompetence and betrayal are confirmed. By referring to the traditions passed down from the infallible imams (a.s.), the appropriateness of the ruling and the subject matter, the argument on the analogy of priority and the rules of la haraj and la zarar(no-harm and no-damage), the certainty of the proof of the right of guardianship, the rule of action for damage and the principle of isteshab, it can be acknowledged that such a prevention causes the complete downfall of the guardianship and the independence of the mature virgin.

There are different interpretations of Shia hadiths about marriage and couple. In some hadiths, marriage is interpreted as sale and the couple is considered as a customer.This article is prepared with the aim of analyzing the implications of seven hadiths about considering the couple  as a customer and its consequences in the opinion of Imami  jurists, regardless of the strength or weakness of the chain of transmission. The two main questions are as follows: Has considering the couple  as a customer  in the Shia hadiths influenced the opinions of Imami  jurists? Is the application  of the word "customer" for a couple in the phrase "He perchase her for the highest price"   a real application? In a descriptive and analytical research, the author has found these answers that the early emergence of hadiths suggests that  the marriage contract should be an exchange and  the couple should be a customer.This apparent indication has influenced some opinions of jurists, and has resulted in jurisprudential issues such as: the permissibility of man's  looking  in proposing ceremony, the right to imprison the wife, etc.  According to the author, marriage is not a sale, and the husband is not a real customer, and the financial obligations of the couple, such as dowry, are a secondary aspect of the marriage contract, and comments such as " He perchase her for the highest price " and "hired as  amother" and "because the woman is the seller of soul"  in the hadiths are  metaphors.

Famous later osulies   believe that a tradition can be cited if its narrators are trustworthy; Therefore, a tradition that has even an untrustworthy narrator is not worthy of citation. Based on this, a weak tradition is not only a tradition in which there is a flaw in its narration; Rather, the mere lack of verification is the reason for ruling the tradition invalid. In the meantime, it seems that the Shareh has prioritized trustworthy, as long as the contrary has not been proven.   This principle is actually a shari decree and a way of verifying reliability; Therefore, according to the authenticity of trust, Mohmalin are authentic. According to some evidences of the authenticity of Khabar Vahed, we need to authenticity of trust, and according to some other evidences, the result the authenticity of trust is obtained in another way. In this research, using library sources and using a descriptive analytical method, the theory of the authenticity of trust has been investigated and the result obtained is that according to some traditions and the rules of authenticity, the news of someone who is known as an  Imami narrator in the books of Rejall and does not have an explicit confirmation nor weakening is valid.

The spirit of the law is one of the sources of sentencing in criminal courts, and considering it as a source that conflicts with the principle of the legality of the crime and the principle of interpretation in favor of the accused, it has prevented its proper use to issue a sentence; While its function is to fill the gaps and eliminate the shortcomings of the aforementioned two principles. This outward view has caused the term "spirit of the law" to not be reflected as much as it should be in criminal law. This legal institution does not seek to criminalize new issues . rather, in a logical way, it  is trying to investigate the possibility of a limiting or expanding  the legal issues to involved or similar new issues so that the sentence prescribed in the law is applied to other issues, observing the principle of proportionality of crime and punishment. Its full function is also based on the rule of "Al-Tazir le kol'e   act muharram" –a jurisprudential rule meaning there can be  a sort of punishment for every haram act.-in Tazirat-punishment-. The spirit of the law also has a jurisprudential  aspect, and it has appeared in jurisprudence as the spirit or taste of sharia , and delelet tanbih, elghaee faregh ,  and the appropriateness of the ruling and subject matter, and custom can be considered as evidence of its authenticity. The spirit of the law as an extracted ruling is based on the discussion of words and has a preliminary position for the discovery of rulings on practical principles, including the interpretation in favor of the accused and narrow interpretation.In this article, this institution of criminal law, as one of the sources of sentencing, has been investigated with a descriptive and analytical method, and in order to apply it, examples of legal texts have been mentioned in all stages.

The science of principles must rely on a kind of knowledge system that tries to explain the text of God's book, hadiths and their meaning; A science that is used as a tool for ijtihad and its output is a fatwa. The main part of this requires the creation of a correct epistemological attitude in the definition of science and certainty, the proof of epistemology.The issues raised in the science of principles are to discover and deduce divine decrees; In both cases, informing about the creating of these real or credible rulings (notifying of the nature of the rulings) is itself a real matter and is described as true or false. One of the difficult issues in the epistemology of religious propositions is the truth or justification of these types of propositions.If the psychological certainty is sufficient to justify a belief in the science of principles, how can the truth of these propositions be combined with the possibility that they are examples of compound ignorance?In this article, by using the analytical descriptive method, we seek to answer this question and provide solutions to solve the problem of truth and justification in fundamental propositions.

The famous jurists of the Imami, based on the traditions that negate the lineage and inheritance between the child of adulterine and the natural parents, considered his heir in case he does not have a wife and children, the infallible Imam (a.s.) or his successor, and the legislator has also stated the same ruling in Article 553 of the Islamic Penal Code and declared  it exclusively for blood money, while it can be inferred from the authentic traditions of this chapter, the opposite of the popular saying. In addition to that, the ambiguity in the concept of adulterine and its verification method spreads from jurisprudence to the aforementioned law and makes the judge face the doubt of recognizing the adulterine child, and necessarily in the cases presented, the parents are still presented as the heirs of the adulterine child.Therefore, for the famous saying and the mentioned legal article, even on the assumption of no defect in the expression of the ruling, it is not expected to work much, unless the jurists and, accordingly, the legislator, resolve the ambiguity of the ruling and the issue with some limitations

Vazgeraee is a theory of meaning that was formed in the context of jurisprudence principles and comments on the process of encoding meaning for words, the nature of meaning, the existential structure of meaning, the relationship between words and meaning, and the process of decoding. In Vazgeraee, with an atomic view of meaning, the content of sentences is determined according to the meaning of constituent words and how they are arranged in the sentence. Each word indicates one or more fixed and determined meanings, that is, mental images, and this indication is also a valid process that takes place through indexing.In this article, after explaining the history of the formation of this theory, with a descriptive and analytical method, while explaining the mentioned components, the problems related to them are explained. According to the researches, this theory faces criticisms such as commitment to linguistic idealism, humanism of the word-coining process, reduction of meaning to the conceptual field, representationalism and wordism. Also, this theory defends a kind of text-oriented approach in the field of interpretation, which is not compatible with the mission of discovering the divine meaning. By examining and criticizing this theory, the author defends contextualism.

One of the duties of jurists is to respond to new issues. One of the newest human issues in the field of nutrition, which is caused by the increasing need of humans for new food and due to the progress of science and technology, is the production of meat through cell culture in the laboratory. From a jurisprudential point of view, this issue has different dimensions that require comprehensive analysis. Is the principle of this work legally permissible or not? What is the status of produced meat in terms of taharat and najasat?And is it permissible to eat these meats on the assumption of taharat or not? These are the questions that the present article tries to answer by using the analytical descriptive method, and tried to examine the many aspects of the problem from different angles and open a way towards permission, taharat and heli'yat.

The originators of the fourfold division of hadiths thought of measures to include the news that does not have a valid document among the authentic traditions; They included some hadiths in the number of sehah( plural of sahih: a kind of valid tradition), which are not considered sahih according to the new terminology. In this context, the most important tool was the theory of injebar, i.e. compensating for the weakness of the document in case of famous action. The later scholars of the Helleh school, that is, Mohaghegh Ardabili and his students, by turning their backs on the theory of injebar and on the other hand with the exclusiveness of authentic news in sahih news, abandoned a large part of the traditions, and with exceptions from the famous jurists's practice, practically eliminated the last means of strengthening the traditions.This is how the Akhbarians allegedly fearing losing tradition and necessity reviving the tradition of the early scholars, they rebelled against the school of ijtihad. In the meantime, some political, cultural and social factors were also effective in the formation and growth of Akhbarism, such as: the influence of Astarabadi on the intellectual atmosphere prevailing in Mecca and Medina, the support of Safavids for Akhbarism in order to increase the confrontation between Shiites and Sunnis and reduce the power of mujtahids, the popularity of Akhbarism's thinking and another thing is that the basic sciences of ijtihad, such as fiqh, the principles of jurisprudence, and the wisdom of hadith, have a Sunni origin.

There are at least five opinions about the obligation to cover hair in prayer: 1. The explicit fatwa on the obligation to cover all hair. 2. Obligatory caution regarding hair covering; 3. Not having to cover the head; 4. Not having to cover hair privately. 5. The belief in differentiation and the need to specifically cover the hair in the area of ​​the head.This difference is due to the reflections that exist in the language of evidence related to prayer cover. Considering the lack of independent research in this field and the fact that it is discussed in scientific gatherings as well as among religious people, it seems necessary to present an independent research in order to analyze the existing evidence, to express the reflections on the evidence related to prayer cover, as well as the reason for the difference in the fatwas of the jurists in this context, the non-fatwa of some of them on the obligation to cover all hair in prayer should be revealed. The news indicating that whole body of woman is private-orah-, the report of the act of her majesty Zahra (pbuh), the report of Zorara from Imam Baqir (pbuh), the report of Ibn Abi Yafoor from Imam Sadiq (pbuh), the Islamic sireh (way of life), the consensus and the rule of ishteghal, are the most important evidences, but the only evidences for the obligation to cover hair.Based on the findings of this descriptive-analytical research, all the proofs of the obligation to cover the hair outside the head area are debatable, and based on the assumption of a flaw in the application of the evidence of the obligation of prayer, by adhering to the principle of bara'ah,  it is ruled that it is not obligatory to cover the hair outside the head area; Therefore, the fifth sentence seems to be valid.