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فقه اهل بیت - پیاپی 83 (پاییز 1394)

نشریه فقه اهل بیت
پیاپی 83 (پاییز 1394)

  • 238 صفحه،
  • تاریخ انتشار: 1394/09/18
  • تعداد عناوین: 9
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  • Sayyidkazimhairi Page 5
    In the first part of this research, three instances of authorities in agreements were discussed; the father and the paternal grandfather, the executer of the father’s will and the just among the believers. In this part, the fourth authority has been discussed which is the just guardian jurist. The issue of wilayat-e faqih(the guardian jurist) has numerous aspects. In addition to discussing the arguments to prove the general guardianship of the jurist, this article focuses on the authority over transaction agreements.
    Keywords: transaction agreements, just jurist, guardianship
  • Sayyid Mahdi Entezari, Husayn Sattar Sukuti Page 26
    The term “practices of the reasonable people” has gained an important and influential position since its introduction to the literature of jurisprudence and principles of jurisprudence. Jurists and scholars of principles of jurisprudence have referred to it in
    their arguments in different issues in their respective fields. Its function as a rule maker has especially become so prominent that it can even be considered as a revolutionary theory in contemporary Imami principles of jurisprudence. Despite the detailed
    Discussions
    by experts about the nature and reliability of the practices of the reasonable people, fundamental questions are still unanswered including whether it has achieved such level of richness and independence to be appointed a separate position along with previously accepted four main sources or it still needs to be analyzed as a subset of one of the reliable sources. Another question is that from which source it has originated. This article
    studies the nature of the practices of the reasonable people from the viewpoint of Imami scholars of principles of jurisprudence and the questions about its position and value.
    Keywords: conventions of the reasonable people, reliability of the practice, practices of the reasonable people, shar', the reasonable people
  • Kavusruhibarandaq Page 48
    The scope of the application of common sense as one of the sources of deduction is one of the most challenging and controversial issues in jurisprudence and principles of jurisprudence. The majority of the Sunni jurists believe, with some differences, in the independent reliability of common sense as one of the sources of jurisprudence.
    The Shiite jurists consider common sense as a reliable source in the themes of rulings not in discovering the rulings. Shiites jurists have different opinions in analyzing the scope and reliability of common sense as an instrument [for jurisprudence]; all Shiite jurists accept
    the reliability of common sense in recognizing the themes present in shar’ipropositions. However, the reliability of common sense in recognizing the instances is a matter of scholarly debate. The current study tries to analyze the scope and reliability of common
    sense in recognizing the instances of jurisprudential rulings in addition to recognizing themes in jurisprudential propositions. Having brought up, analyzed and criticized the opinions of proponents and opponents, the author has concluded that although
    the opinion of those who reject the reliability of common sense in recognizing the instances is closer to the truth, it will not make any difference in the result of the discussion if one of the opinions is accepted, because it is a lexical dispute.
    Keywords: recognition of instances, determination of themes, reliability, common sense, clarity, themes
  • Muhammad Ali Ismaili Page 69
    The issue of “Multiplicity of 'Unwan and Muanwan” (multiplicity of a concept and its instances) plays the role of the reason for the issue of combination of positive and negative commands. There are a number of viewpoints in this respect: Muhaqqiq Khurasani has rejected any relation between Multiplicity of 'Unwan and Muanwan.
    Muhaqqiq Na’ini has differentiated between derivative concepts and the origins of derivation maintaining that multiplicity of derivative concepts does not necessarily lead to multiplicity of external instances, but multiplicity of derivative origin necessarily leads to
    multiplicity of external instances. Muhaqqiq Khu’i has accepted the viewpoint of Muhaqqiq Na’ini only in the first part, but in second part, he does not hold that multiplicity in a concept necessarily leads to multiplicity of external instances. Shahid Sadr has differentiated between subjective instances and objective instances maintaining
    that multiplicity of a concept always leads to multiplicity of subjective instances and the referent of shar’i rulings are subjective instances. About the external instances, based on his interpretation of philosophical concepts, multiplicity of a concept always leads to
    multiplicity of external instances. This article tries to compare multiplicity of a concept and instances in the thought of Muhaqqiq Na’ini and Shahid Sadr through descriptive analysis.
    Keywords: multiplicity of a concept_multiplicity of instances_subjective instance_external instance_the combination of positive_negative commands
  • Hadi Shabani Kandsari Page 101
    In this article, the criteria, scope and guarantee for the implementation of principles of la darar and la dirar have been reconsidered. This study is aimed at determining the criteria which indicates whether darar and dirar have occurred and finding the guarantee for the implementation of these two principles. We faced this question that what are criteria, scope and guarantee for the implementation of principles of la darar and la dirar? It was made clear in this research that the criterion in darar is the harm itself and in la dirar is unusualness to exercise a right. The scope of la darar is in any ruling which causes harm while the scope of la dirar is only where a right is exercised. The guarantee to implement the principles of la darar and la dirar is through negating the related ruling and if a right has been misused and, as a result, some harm has been afflicted upon an individual, the losses could be recompensed through general laws of civil liability after the legal exterior is removed and the action is proven to be have been forbidden. In fact, dirar theory and misuse of rights is among the rules which paves the way for civil liability and is not considered a separate foundation to issue a verdict to recompense damage/loss. Based on this, referring to la darar principle to issue a verdict to compensate damage/loss is unjustifiable.
    Keywords: exercise a right_recompense damage_loss_misuse of a right_darar_dirar_principle of la darar_principle of la dirar
  • Sayyid Ahmad Musavi Baredei, Khadije Husaynzade Page 143
    The ruling of iqdam (action) is one of the most important jurisprudential rulings which is the foundation for many jurisprudential and legal rulings in fields such as fuzuli transaction,
    invalid lease, usurpation, trust and repayment of debt. This ruling has hardly been discussed separately, therefore, it is important to analyze its proofs and explain its important aspects. To prove this ruling, several arguments have been proposed. The most important argument here is to refer to practice of the reasonable people. Some scholars have considered this ruling as a ruling similar to “consent” and “contributory negligence” in common law.
    Keywords: to cause harm, to become liable, contributory negligence, consent, references of the ruling of iqdam (action)
  • Muhammad Javad Daniyali Page 170
    In addition to legal and national aspects, military service is a shar’i obligation. Military service is a kifa’i wajib (an obligation which is for all at first but if enough people perform it, others will be exempted) as one of the necessary occupations in the Islamic society such as medicine and agriculture or for the defense of the security in the Islamic society. Investigation of narrations and fiqhi books indicate that although there is a general rule which states that it is forbidden to take money in return of performing a wajib, it is
    possible from shar’i perspective to outsource the military service in both cases in return of money. In the first case, despite severe disputes among faqihs in the explanation of the abovementioned rule, they all agree that necessary occupations for the society can be
    outsourced and in second case, jihad and defense can be outsourced particularly due to narrations which pave the way for such an action; even under some circumstances this type of outsourcing has been recommended or commanded to strengthen the Islam’s army. According to this neglected shar’i capacity, the military service can be outsourced and sold, similar to other occupations in the society through legal and administrative measures.
    Keywords: service, military service, outsourceable, payment in return of wajibs