فصلنامه فقه
پیاپی 113 (بهار 1402)

Based on the Holy Qur'an and narratives, justice is one of the conditions of polygamy, of which Ghasm (the right of the wife for sleeping with the husband at night), alimony, and payment of money are its examples. The Article 14 of the Iran's Family Protection Law in 1967, focusing on obtaining the conditions of a man's power to execute justice and the Article 17 of the Family Protection Law in 1974, instead of verification of a man's power to execute justice, emphasizing the man having the qualifications of the execution of justice in paragraph 1 of Article 16, are totally different from the high concept of justice based on most jurists' viewpoints - one of the definite conditions of polygamy. In fact, this is not recognizing the necessity of executing justice as one of the conditions of polygamy and it leads to violation of women's rights. Meanwhile, supporting the rights of women and family as one of the most important social institutions, doubles the importance of the legislator's view on this issue. The present study, using a library method and with an analytical-descriptive and inferential approach, after examining the details of the conditions of polygamy from the point of view of jurists and examining the evidence and its compliance with related laws, has dealt with the gaps in the law and the legislator's lack of attention to the certain jurisprudential condition and its examples, and the result is the basic contradiction of the concept of justice desired by jurists and legislators. In addition, various examples of justice in polygamy (ghasm, alimony, payment of money), the ways of obtaining the initial conditions and maintenance implementation and the guarantee of its implementation are gaps in these legal articles, and it is suggested to amend the legal articles based on Fiqh.

One of the divisions of contract in Imamiyah jurisprudence and Iranian law is covenant or possession, which is divided into continuous and immediate by considering the time in the definition of contract. A continuous contract is a covenant contract that is opposed to an immediate contract and its fulfillment becomes possible with the passage of time. The difference between continuous and immediate contract is in the covenant or possession nature of the contract and the relationship between the subject of the contract and the element of time. In the laws of some western countries, the contract of renting is considered as a covenant that the contract itself and the obligation resulting from it is continuous, but in the laws of Iran, based on Imamiyah jurisprudence, this contract is a possession contract. This article evaluates the concept of continuous and immediate contract in Imamiyah jurisprudence and the laws of Iran and other countries with a descriptive-analytical method. The result of the present article is that due to the lack of jurisprudential background for the existence of a continuous contract and according to the definition of the Imamiyah jurists and civil law of the contract of renting, the element of time has been considered in the contract of renting. In addition, based on the result according to the third paragraph of the article 490 of Civil Law, the authors believe that the contract of renting is immediate. The most important effect of immediacy is the possibility of lien in this contract, because in continuous contracts, due to the fact that the performance of the resulting obligation over time is not the same as the compensation received by the obligee, it cannot be assumed that there is a lien in continuous contracts.

The development of jurisprudence (Islamic jurisprudence known as fiqh) and its dynamics has a close relationship with the method of presenting and expressing jurisprudence topics. Therefore, knowing the jurisprudential method and method of each jurist has an important and clear effect on knowing his intellectual characteristics and products. The venerable jurist Allameh Sheikh Muhammad al-Hussein Kashif al-Ghita is one of the famous jurists with a jurisprudential style whose jurisprudential thoughts can be examined from different angles. This article aims to explain the methods that he has used in his studies and jurisprudential branches inferences. In this regard, topics such as the development of jurisprudential issues with a comparative and approximate view, rule-oriented in jurisprudence branches, foundation-oriented modernization in the derivation of jurisprudence, attention to the role of time and place in the dynamics of jurisprudence, trying to solve new jurisprudential problems with the realities of life, considering the moral and social dimension of jurisprudence and attention to the rational and philosophical dimension of rulings have been dealt with. Although in the study of jurisprudential methods, the formal aspects of jurisprudence are analyzed and explained more than its foundations and topics, it should be noted that this gives shape to the content and brings the greatness of the dynamics of jurisprudence and knowing jurisprudence to the emerging stage.

The transit contract is one of the new and common international contracts that requires crossing the geography of countries' territories along with the provision of transit services and is considered as public interests and rights. According to the case laws, this contract is concluded only by governments as competent legal entities in international forums. Types of transit have been illustrated, which in the air transit section takes place by passing through the ultra-surface space of personal and national lands, which are interpreted as territories of the land. Despite the possibility of illegitimate use of transit on the one hand and the existence of jurisprudential and legal disputes in the ownership of land territories on the other hand, the necessity of compliance of this contract with the jurisprudential and legal standards prescribed in international laws is an issue that the current research has tried in this article with an analytical-descriptive method. While referring to the property of the ultra-surface space facing the land and its ownership status, its compliance with standards of jurisprudence has been examined. The result of this study suggests that, contrary to some views expressed in the ownership of land territories, the common structure of such a contract is consistent with valid jurisprudential standards in "transit contract".

Dogs have always served humans in hunting and guarding since thousands of years ago. In today's world, in addition to the aforementioned services, dogs play an important role in such things as discovering drugs and explosives, finding survivors, routing, diagnosing diseases, etc. In addition, some people bring dogs into their homes as a member of their family, provide part of their emotional needs with this animal, and treat some mental illnesses with them. Despite the expansion of relationship between humans and this animal, so far no independent research has been provided on the jurisprudence of keeping dogs. In the present article, which was carried out with a descriptive-analytical method and using library data, this result was obtained after examining the arguments presented by the jurists of different Islamic denominations that according to the first ruling, it is permissible to keep all kinds of useful dogs and keeping non-useful dogs is Makrooh, contrary to the famous views of jurists who consider it haram, and in terms of the secondary ruling, titles such as harm, resemblance to infidels, and health hazards can turn the first ruling into haram or makrooh.

In recent years, due to the expansion of information and communication technology, making money through the transaction of goods and services on this platform has been greatly promoted, in such a way that everyday users are encouraged to do this type of transactions through the many advertisements of startups. Placing these transactions on programmed internet and telecommunication systems that lack real components and accesses has made human intervention in it to a minimum and it leads to creating a space and time distance between the elements of the transaction, including demand and acceptance. However, according to the view of some jurists, the condition of the validity of the transaction is succession in demand and acceptance. Using the descriptive-analytical method, this article has analyzed the quality of its realization in the transaction on the platform of information and communication technology, while weakening the condition of succession in the contract, and has considered earning money in this way as valid.

With the advancement of medical science, especially the production of some new drugs from dead body organs, the jurisprudential ruling of making medicine from the remaining donated and unused body organs for medical purposes, both necessary and unnecessary, is ambiguous. Understanding the necessity of the treatment issue, especially in the state of embargo and the lack of advanced products in the field of treatment, as well as Iran's need to discover and produce new drugs, made the authors make an effort to analyze the issue. The present article has evaluated the problem with an analytical-critical approach of library resources. In this regard, there are two theories in the medicinal use of the remaining organs of the Muslim dead body. The major obstacle for permissibility of using these organs is most jurists' viewpoint on the necessity of burying the amputated organs of the dead body, which has made this issue a challenge. By examining the arguments of different aspects of the problem, the present research considers the arguments of the impermissibility of using these organs to be insufficient, and finally, referring to the principle of exemption, it considers the manufacture of medicine from these organs to be harmless.