JUSTARHA YE FIQHI VA USULI
Year:2020 | Volume:6 | Issue:3 (20)|Papers Count:7

Nowadays، natural scientists try to look at the hidden faces of nature and natural phenomena in the beam of models. On the other hand، the function of models plays a very important role in understanding concepts، knowledge and religious beliefs، as well as interpreting religious stories and rituals. One of the allegories that has been expressed in Islamic theology and especially in jurisprudence and the principles of jurisprudence، as the manifestation of man’ s relationship with God، is the allegory of “ Moula-Abd” Which can be considered as a model for the image of God and man in this relationship. The use of this model has certain foundations and epistemological outcomes. One of the most important foundations of the Moula-Abd model is the perception of the personal God of mankind. Other outcome of the Moula-Abd model is the explanation of a true fact by a non-real thing. On the other hand، accepting this model involves the negation of human authority. In addition، the outcome of using this model as a proof is to go beyond the application of models that epistemologically are not accepted. Also، the other outcome of model of the “ Moula-Abd” is the masculine perception of God. Now، how can we take a step further in completing the more detailed and precise image of God and man in this model? How can we pass from these epistemic outcomes? This research، using a descriptive-analytical method، seeks to explain these outcomes and claims that with the Transcendental Wisdom approach، we can cross the above-mentioned outcomes to use the Moula-Abd model.

Shiite jurisprudence despite the profoundness of various subjects and different spheres of human life, in comparison with Sunni jurisprudence, has always been far from social positions and has grown on the margins of the political and social life of the society. If this issue considered from its sociological effects aspect on the nature of sciences, indicates the fact that Shiite jurisprudence is essentially individual and partial in nature In addition to the external supporting points, jurisprudence in its internal aspects, the stage of recognizing the creed and subject, and then, applying the creeds to the subjects based on partial logic, which are the result of the basic and philosophical roots of this knowledge based on Aristotelian logic. In this article, we attempt to explain this methodology by analyzing this kind of methodological individualism in Shiite jurisprudence. In contrast, the authors argue that the theory of legal edict provides a capacity in the field of social and governmental jurisprudence, which can be said of social duties and obligations.

The Permission or prohibition of certain Sharia Solution have briefly been affirmed by Shiite and Sunnite Jurisprudence. Essentially, Decrees and Laws of a legal system must not conflict with its objectives, so it is significant to study the authenticity of permission of a Sharia Solution which is outwardly in contradiction with the goal of Sharia. This research tries to clarify and criticize the different standpoints of Islamic Jurisprudents, both Shiite and Sunnite-and concludes that some of permissible cases are are not Sharia Solution in nature, but lexical solutions or transition of a Sharia Decree to another; Assuming naming them as Sharia Solution, it does not cause any conflict with Sharia objectives. On the other hand, some of instances which have been named Sharia Solution, are forbidden in reality because of leading to commiting Haram or if the subject of Haram does not change, as well as their opposition against Sharia objectives.

According to the Jurisprudential texts and subsequently dealt with by the Shiite juristsis the prohibition rule of the Ḥ udū d execution in enemy’ s territory. This rule is shaped in two parts: Absolute and Qualified Terms. In absolute terms, the Ḥ udū d execution in enemy’ s territory is unquestionably prohibited; but, as a qualified meaning, the prohibition of the Ḥ udū d execution in enemy’ s territory) is the subject to the fear of joining condemned to the Enemy. Concerning “ the fear of joining to the enemy, ” some jurists consid-er it as the ʿ Illat (cause)of ruling, and the others consider it as the Ḥ ikmat (philosophy) of Ruling. There is, however, a third group who believe that the combination of ʿ Illat and Ḥ ikmat is possible. Accepting the recent view, this study believes that since the fear of joining to the enemy capable to extend to the similar sentences, such as flogging as Taʿ zī rī or Qiṣ ā ṣ (Retaliation) is the ʿ Illat of ruling and since the absence of this fear and existence of other ramifications the Ḥ ad sentence and other similar Punishments should not be carried out in enemy’ s territory this fear can be considered as the Ḥ ikmat. According to this writing, formation of international human rights organizations and the advent of technology, make joining to the enemy is much easier than Imam’ s era. The consequences of application of these punishments for the Islamic society became more widespread. Also, the development of cyberspace in the age of globalization has reduced the importance of geographical boundaries and has also obscured the meaning of the enemy’ s territory. Therefore, rethinking and generalization of this provision (Prohibition the Hudud execution in Enemy’ s Territory) to other punishments running in Islamic countries seems essential.

Statutory articles of assistance in murder is set that not warrant comprehensive about penalty of all forms its & therefore, by resorting to jurisprudence & legal strategies to these challenges must be answered. The purpose of this paper is a murder case that the ssistant involved in it, exactly what the judge dealing on & given that different assumptions, what can the judicial decision to adopt assistant murder. The current research is using description-analytic method as well as digital-library sources. The findings of the present study indicates that judges with numerous statutory articles & different jurisprudential inferences sentencing penalty of assistance in murder occurred & rightly able to determine not allowed & the challenges caused some votes to be dispersed. Basic rules of assisting in crime, like other crimes referred to in articles 126, 127, 128 & 129 of Islamic Penal Code is 1392. Penalty of assistance in murder by retaliation or no retaliation as murder murderer Such as murder as a defense lacks all legitimacy conditions on the one hand & compliance assistant behavior with assistant shariah or legal is different.

The deserving death is a jurisprudential debate in which the evolution of discussion about it is different in Islamic sects. Sunni jurisprudents believe that the deserving death toward Imam are only the warlike, the rebel and the belligerent, and in their view, in the killing of the warlike and the rebel by the non-Imams, the retaliation are not pronounced and only in fixed legal punishment, they are obliged to execute it by the Imam; Otherwise, retaliation and blood-price are pronounced. In addition to the cases of the Sunni jurisprudents referred before, the shia jurists have developed the domain of the deserving death to reprehensible act, insulting the Prophet, and the Imams, the pretender of the Prophecy and the reprehensible act of tributary, and most of the shia jurists in all cases, except insulting the Prophet, and the Imams believe that it is not permissible to kill the aforementioned individuals without the permission of the Imam and condemn the perpetrator to be guilty and must be received discretionary punishment.

Clause 49 of the protecting family law has recognized not registering the marriage, divorce, and revocation of divorce a crime and has determined imprisonment for up to one year. This study, with the aim of bringing the Islamic republic of Iran’ s law into concordance with religious and rational standards using a comparative and analytic method, tries to do a jurisprudential and legal research on the first section of this legal clause which has been or may be used for proving its legitimacy. Finally, the conclusion is drawn that there is a lot of significance and necessity in registering the marriage and there is a lot of harm and damage such as spoiling the family members’ rights and paving the way for various family crimes and social harms in the lack of it. These merits and demerits though, cannot be justifications for criminalization or not registering. Even so, the religious permit to administer and enforce punishment for such actions is not only difficult, but also impossible, and the principle of the presumption of innocence, the principle of the autonomy of the individual (that no one is presumed to have the position of a guardian over another), and the generality of the principle of the prohibition of harassment and nuisance, and the legal right of respect to rights and individual freedom obstruct it.