فهرست مطالب

مطالعات فقه اسلامی و مبانی حقوق - پیاپی 23 (پاییز 1391)

نشریه مطالعات فقه اسلامی و مبانی حقوق
پیاپی 23 (پاییز 1391)

  • تاریخ انتشار: 1391/11/03
  • تعداد عناوین: 8
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  • Mohammad Hasan Rabbani Birjandi Page 3
    “Osul” (jurisprudence principles) is a knowledge that derives the sharia rules from its sources. Books of Osul of the Sunnis have been published in two ways; way of theologians and way of jurists. The theologians have put the principles so that the jurisprudence rules could be extracted by using those principles. The jurists extracted those principles from jurisprudence. Some groups have taken the second method and some others have mixed the two methods and created a third way.Bifurcation of the minutiae from the principles is a special knowledge that lies beside the Osul and the jurists have put efforts on it. Shia’s scholars who go by the principles (Osul) also have published their books by the way of theologians.
    Keywords: Osul (principles) knowledge, Sunnis, Theologians, Jurists, Jurisprudence
  • Mohammad Reza Javaheri Page 33
    The Islamic Ijtihad is the guidance of perfection and true happiness of humanity in thest century and today’s world and it has the capacity to save the world and make it a better place. In order to prove this fact, a definition of the Ijtihad has been given followed by a rational reason as well as a narration to show the existence of Ijtihad in the era of prophecy.The different political situations of Mecca and Medina and the features of laws that were based on sharia and they prepared the ground for Ijtihad and judgment in the city of Medina have been said in the rational reason. At the narration and its expressions and aspects, the order of Ijtihad in the Holy Quran has been reviewed by the interpretation of the “Nafar” verse and it has been proven. Also the teachings of the holy prophet of Allah (S.A.W) for formation of Ijtihad in the era of prophecy has been reviewed such as: introducing valid sources for derivation by the holy prophet (s.a.w), question of Khasamiyah and the answer of the holy prophet (s.a.w), prophetic hadith of Allah’s that says mercy be on Mujtahids, the rewards of Mosib Mujtahid and the Mokhti Mujtahid, concept of prophetic hadiths of forbidding judgment without having the proper knowledge, education of the holy prophet (s.a.w) regards to the value of Jurisprudence and jurists and Mujtaheds and his order on the necessity of comparing the hadith with the holy Quran.The comments of contemporary thinkers about the occurrence of Ijtihad among the companions of the holy prophet (s.a.w) has been stated at the beginning of this plan while at the middle of it, some examples of the acts of Ijtihad in the era of prophecy has been stated and at the end it, jurists and companions who were famous to make judgments in the beginning of Islam have been identified. Some examples of their judgments and orders have been gathered by sources of Shia and Sunni’s and their most important works have been cited.
    Keywords: Ijtihad, Jurisprudence, Companions, the holy prophet (s.a.w), judgment, Medina, Law
  • Seyed Ali Mousavi Page 69
    About the definition of Baghi (punk) and its rules, scholars (jurists) of Islam have agreed in many cases. Most of the Imamate followers jurists believe that Baghi means turning against a just Imam and it requires some conditions; such as the Baghi person has to be a Muslim, he has to turn against the just Imam, there should be a group of them, reason for them turning against has to be a doubt, they have to be organized and have some sort of an organization. If these conditions are met, then the Imam and the Muslims have to fight against them; but before the battle, one person has to be send to them to enlighten them and solve their doubts. In the case of failure, they have to fight with them until they get dispersed and if they have some units behind the battlefield, captives and injured ones from them have to be killed and the fugitives have to be chased. In any condition, their women, children and properties which are outside of their army camp will be unharmed and left alone.Even though the term “Baghi” has not entered the statutory law, but most of its examples such as charged with subversion and … have been noticed at the Republic Islamic of Iran’s criminal law. Yet the Iranian legislator due to unknown reasons considers them as examples of “Moharebeh” (war).
    Keywords: Baghi, Abolition of government, Zofeeh, Armed uprising, Stimulation
  • Seyed Matin Mohseni Page 85
    The term “war crimes” was first entered in to the legal language and literature by Larnaude and La Pradelle after the World War I. Opposite of the “crimes against humanity” and “genocide”, war crime is related to “Humanitarian Law”. As you can see from the title, war crimes are related to a state of war or conflict and war or conflicts, typically happens between governments.On the other hand, non-international wars exist too which are the internal armed conflicts. Before the establishment of the International Criminal Court (ICC), the crimes of internal wars or conflicts were not recognized by the international treaties or conventions.Even though some examples of the war crimes were known in the common international law; but for the first time and in details, the war crimes were studied at the ICC’s statute as an international documentation fact. In addition to the common international law, the statute of the ICC, different regulations of The Hague conventions, the four treaties of the Geneva conventions and some other international documents including statutes and sentences issued by the international courts are all inspiring the section (8) as well.To sum up we can say that war crime is a violation of the humanitarian law and it is violating the rights of the war. The current research specifies the basis of the war crimes and it studies the ambiguities about the documentations on crimes. It has included the study of war crimes from international documentations, especially from the statute of the ICC and the crime specific elemental document.
    Keywords: War Crime, Violations of humanitarian law, Armed conflict, Crimes subject to universal jurisdiction, International conflicts, Internal conflicts
  • Abbas Ghanizadeh Page 115
    Today, violations of international humanitarian law, is an issue that has been studied in area of international criminal responsibility. Crime victims of the WWI and WWII, have been always attracting the thoughts of international thinkers to themselves up to a point that reviewing a personal status of those victims in criminal international law has become the main studying approach of the European countries. Therefore the criminal thinkers with an operative approach which has been raised from achievements of cognitive crime have been always reviewing the violations of international humanitarian law.In this article, the writer has reviewed one criminal event from viewpoint of constitution of Germany.
    Keywords: government responsibility, violations of international humanitarian law, Distomo, WWII, Federal court of Germany
  • Muhammad Isa Amiri Page 141
    Electronic intermediaries can have many examples, but one of its obvious examples is those intermediaries who provide internet services or electronic connections for users.There is no doubt that the intermediaries and the suppliers of such services play the major role in establishing electronic connections. There is a possibility of a failure in this process for example desecration of people by the employees of the suppliers or by activities or services of the intermediaries. This possibility has caused some people to claim against these intermediaries. The intermediaries’ responsibility is a function under general rules of civil liability. Because in Iran’s legal system and many other countries the theory of “Taghsir” (fault) has been accepted, in order to analyze the responsibility of the intermediaries, we have to study their legal obligations and the cases of committing Taghsir.There are some legal protections for some of the intermediaries based on the services they provide in some of the legal systems that shows as exemptions. Obviously, applying those exemptions requires specific legal conditions. Therefore the current article, tries to express the responsibility of those intermediaries from the jurisprudence texts and subject rules of Iran.
    Keywords: Responsibility, Electronic intermediaries, Internet services, Taghsir (fault), Etlaf (damage), Tasbib (causation)
  • Muhammad Ali Fakouri Page 163
    Population growth is one of the major crises for the developing and non-developed Islamic countries. This event had been counted as the most important challenge that the Islamic and non-Islamic governments have to face in the last two centuries.Population control and generation limit is a policy and a thought that uses different methods which has been said by the scholar and politician of the west, to solve the population growth problem and it has been implemented internationally. This policy has been presented itself in the Islamic countries for the past couple of decades and it has been approved by the majority of them and in some cases, it has been implemented successfully. This title, since it is a new case, since the beginning has made the Muslim jurists, lawyers and other scholars and social experts to two groups of cons and pros. Each group uses verses of the Holy Quran, narrations, rational reasoning, experience and other reasons to prove their idea. But accepting one of this two view points as an absolute answer is not rational and it cannot be the only standard solution for all of the Islamic countries nor it can answer requirements of different times or places.The present article, has tried to express the reasoning’s of both cons and pros of population control and it has expressed the analysis of them plus their critics.
    Keywords: Population growth, population control, Family adjustment, jurisprudence rule, methods of population control
  • Soraya Rostami Page 193
    Euthanasia, or the merciful death (good death), is either with the will of the patient (voluntary) or it is without his will (non-voluntary), where the patient legally does not have the competency to make a decision.As per the basis of the criminal law of Islam, the active euthanasia is considered as murder even though it has been done with the patient’s will. Therefore it is forbidden and it results in punishment or retaliation; because the merciful motive of the doctor and permission of the patient is not going to take away the criminal responsibility of that doctor nor it is a discount factor in his punishment. Therefore his trustees or guardians are able to punish and retaliate from him, but if the patient forgives the doctor after his act of euthanasia (for example, after injecting him with a deadly medicine) then, after his death, his inheritors do not have the rights to retaliate or ask for punishments.In a non-active, non-voluntary euthanasia, even though the title “murder” does not apply, but the doctor had stopped saving a life and since this is leaving his obligation to patient, he has done a forbidden act and has to be punished.It is the same rule in a non-active, voluntary euthanasia; unless if it is cases such as surgery where the doctor has to take position of the patient’s buddy. Because in these cases, patient’s permission is the main condition to make this action a legitimate act. Therefore if he does not agree with the operation, the doctor has no rights to continue and therefore his responsibilities including his criminal responsibility will get removed. But in those cases where the act of the doctor does not require him to take position of the patient’s buddy, like an artificial respiration, saving patient’s life is an obligation for the doctor and in the case of failure to do so, he will be punished.
    Keywords: Euthanasia, Merciful Death, Murder, Saving Life, Terminal Patient