پژوهشنامه متین
پیاپی 56 (پاییز 1391)

The present article is a comparative study of the issue of Istishab (authorizing the previous state) from the viewpoints of two contemporary usuli jurisprudents, Imam Khomeini and Mirza Hassan Bojnourdi. The general Istishab is conceptual Istishab which can be applied to several people and is divided into three kinds according to the principles of jurisprudence. Imam Khomeini maintains that Istis-hab is applied in the first and second general kinds. The Imam has answered the questions regarding the second general kind by relying on the argument of advocates of common sense and then has explained the third kind by elucidating the way of considering common sense in individual characteristics or commonality of individuals. In his viewpoint, with regard to the third general kind, if common sense has taken individual characteristics into consideration, Istishab is not applied, but if the commonality of individuals is taken into consideration as subject of common sense, then Istishab is applied. The late Mirza Hassan Bojnourdi allows application of Istishab in the first and second general kinds and provides his answer to second kind by relying on the unity of nature of the definite issue and the issue under question. With regard to the third general kind, he argues that the criterion is unity of the advocates of common sense and hence, Istishab can be applied only when there are uncertain issues.

Until recently the treatment of patients having lost their organs was transplantation of organ or using artificial organs that faced lot of difficulties such as shortage of donors, rejection of the transplanted organ by the body of recipient, requirement of using specific drugs for a long time, etc. The discovery and application of stem cell over the past few decades has created a great revolution in the field of treatment of incurable diseases and organ transplantation as well as benign and malignant diseases. Also great improvement has been made in the field of treatment of tissues of heart, liver, membrane, and other body organs. The issue of permissibility or impermissibility of using stem cells, man’s ownership of his or her organs, sale and purchase of organs and stem cells are among the problems that have created lengthy debates in the ethical, religious and legal fields.The significance of organ transplantation and treatment of incurable diseases with new technology and saving of a life of a human being have convinced some of the religious and ethical scholars to permit their use and even their transaction.The present paper is an attempt to study the issue of use and transaction of stem cells from jurisprudential, legal and ethical perspectives in Islam. The problem is studied through descriptive-analytical method.

Destiny and Fate are two important issues in the field of philosophy and theology that have given rise to a number of questions, particularly with regard to the issue of human free will. Imam Khomeini and Mulla Sadra are two authorities in this field. The present research is an attempt to explain and compare their viewpoints. The findings of the present research indicate that both the thinkers maintain that divine providence (fate and destiny) do not undermine human free will, rather they argue that free will is determined by divine fate and destiny.

In the present article, the truth of metonymy has been studied through the perspective of four theories. Sakaki – on the basis of its proper exposition – acknowledged the prevailing idea of using speech in the meaning of its relevant related subject, but in order to improve the rhetorical meaning of metonymy, he also relied on the theory of contention. On the other hand, Shaikh Mohammad Reza Isfahani and Mirza Qomi by relying on the usage of speech in its related subject in reality and in fiction, have searched for the differences between the two in the existence of contention in the meaning of metonymy. But they have different viewpoints about the kind of contention. Isfahani maintains that the criterion is “the contention of individuality of fictional meaning for real meaning”, while Qomi argues that the criterion is “the contention of objectivity of fictional and real meaning”. Imam Khomeini is inclined towards the viewpoint of his teacher Shaikh Mohammad Reza Isfahani and has improved upon it. The viewpoint of the author has been given in this research as well.

The main thrust of the present paper is to introduce a new interpretation of religious modernism, which lacks the paradoxical aspects, and does not require compromise of religion or discarding modernism. This new interpretation of religious modernism can be inferred from the combination of two intellectual-social phenomena prevailing in universal religions claiming the end of prophecy (Khatamiat), that is, religious revival and reform. Attempts have been made in the present paper to introduce some referents of divergent and convergent revivalism and reformism by studying the viewpoints of three active ulama of the Constitutional era of Iran: Imam Khomeini, Shaikh Fazlllah Nouri and Mirza Naini. A comparative study of the viewpoints of the three thinkers would show the privilege and distinction of the current of convergent revival and reform and shed light on a referent of the realized referents of religious modernism in recent period.

The divorce of wife of a missing absent husband is among the intangible (non-financial) rights of the wife. In some cases due to the absence of husband, the wife faces hardship and duress with regard to financial issues and alimony as well as non-financial demands such as fulfillment of natural, sexual and emotional needs. According to the prevailing viewpoints of jurisprudents and the civil code, if the husband remains missing absent for four years his wife can move to court and appeal for divorce. The present paper is an attempt to study this issue. Some contemporary jurisprudents like Tabatabi Yazdi maintain that if the wife’s commitment to the marriage bond during the absence of the husband causes her to commit sin, either out of compulsion or by will, divorce in necessary in order to protect her from sins. In case of missing of husband, if going through the legal process of search and investigation about the missing husband causes the wife to commit sin, the religious ruler can get her divorced before waiting for the expiry of four years. This decree can be a new individual inference (ijtihad) in the light of requirements of time, space and new issues. Some examples of this kind of individual inference are seen in Imam Khomeini’s decrees.

Human social life has always been accompanied with certain rights that are binding for all of them and before these rights were legislated as law, they prevailed in the form of common sense and habit. This shows the long record of presence of common sense in legal discussions and also underlines its significance. What is recognized in mind and the wise people accept and also what is the habit of all or majority of the people of one place or community in their talks or behavior to the extent that it becomes binding, is known as common sense. Common sense is among the significant issues of law and plays a crucial role in legal and jurisprudential interpretations and readings. The present paper is an attempt to study the status of common sense in law, particularly in the viewpoint of Imam Khomeini. The hypothesis of the present paper is that common sense is one of the sources of law and plays an important role in legal and jurisprudential solutions of new problems.