فهرست مطالب

نشریه فقه اهل بیت
پیاپی 90 (تابستان 1396)

  • تاریخ انتشار: 1396/05/10
  • تعداد عناوین: 7
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  • SayyidKazim Ha’iri * Pages 5-60
    In this article, important jurisprudential issues regarding the permissibility of buying and selling endowed properties have been discussed; including issues such as whether endowment is cancelled or not if something happens that makes its sale permissible; a destroyed property which produces very little or no profit; the theory attributed to al-Shaykh al-Mufid that one of the cases where the sale of endowed property is allowed is when through selling the property the beneficiaries will receive more benefits than if they keep the property; permissibility or impermissibility to sell the endowed property if the beneficiaries are in dire need; permissibility to sell the property that will be otherwise destroyed; permissibility to sell the endowed property if it will lead to human toll or property loss if not sold due to conflicts among the beneficiaries; selling the endowed property where the last beneficiary has no offspring or there is no other beneficiary alive.
    Keywords: sale, endowment, the endowed property
  • Muhammad Reza Malek * Pages 61-92
    Discussion about “right” and “possession” and the relationship between the two is a delicate and difficult discussion which has been followed by Shiite jurists in recent two centuries and great jurists have provided their opinions in this respect. The fact that this issue is mixed with philosophical discussion has added to its complexity. It can be said that all the debating scholars have accepted that possession and right are considered among contractual issues; the difference of opinion lies in the fact that whether these two originate from the same source or each has its independent source. In this article, first the nature of possession and right has been studied and then different opinions have been mentioned and evaluated and then the correct opinion has been explained and the relationship between right and possession has been analyzed.
    Keywords: right, the nature of right, the nature of possession, therelationship between right, possession
  • Mas’ud Imami * Pages 93-122
    The method of executing qisas of murder has been discussed under various jurisprudential issues such as executing qisas similar to how the murder has occurred, or by a poisoned or blunt device or to mutilate the murderer. This has also been discussed in article no.436 of Islamic Penal Code. In this research, following the jurisprudential study of this issue, a number of results have been obtained including new methods in executing qisas which inflicts the least pain to the convicts such as executing qisas of murder in the form of donating body organs which does not only have no legal constraint but also have many rational benefits. Therefore, it is recommended to adjust article no.436 to remove the legal barrier to use this new method and other methods which inflict the least pain upon the convicts.
    Keywords: qisas of the murder, execution of qisas, mutilation, organ donation, Islamic Penal Code
  • Ali Sa’ili * Pages 123-133
    The issue of guardianship of the father over an underage in the right of qisas is one of the important issues in the jurisprudence of the Ahl al-Bayt (a). There are two major opinions in this regard: the first view is by AllamaHilli, the author of Shara’i’ who believes that the guardianship of the father over the underage is a general concept and includes the right of qisas as well. The other opinion is by al-Shaykh al-Tusi who maintains that the father has guardianship over the underage and there is no designation denoting the generality of the father’s guardianship over the underage. Jurists are divided into two major groups based on these two major opinions. The second view is stronger than the first view in terms of foundations and arguments.
    Keywords: Guardianship, underage, right, qisas
  • Muhammad Ali Isma’ili * Pages 134-164
    The relationship between Islamic rulings and real expedience and inexpedience is among important issues in the field of philosophy of jurisprudence about which there are three major approaches: Ash’ariteshave rejected the rationality and intrinsic nature of good or evil and have rejected the purpose in divine actions and have not accepted that Islamic rulings are based on expedience and inexpedience. ‘Adliyyahave accepted the rationality and intrinsic nature of good and evil and that divine actions have purposes and believe that Islamic rulings follow real expedience and inexpedience. The majority of ‘Adliyya believe that the subject matter of Islamic rulings revolves around good or evil. However, some thinkers believe that expedience and inexpedience of some Islamic rulings such as superficial or wad’i rulings is merely in the establishment of the rule.
    Keywords: Islamic rulings, Ash’arites, following, shari’a, expedience, inexpedience
  • Ali Sadiqi * Pages 165-199
    One of the reforms in the Islamic Penal Code 2013 is to clarify the criteria, conditions and instances that rebut adultery. Some of the instances that rebut adultery have been mentioned in article no. 227. However, regarding the criterion of adultery, these instances are only some examples and other instances can be found. Instances mentioned in article no. 227 are: journey, imprisonment, menstruation, diseases which bar intercourse and diseases which is harmful for the spouse. These instances have various aspects which should be studied in the words of jurists. In this research, different aspects of the instances rebutting adultery in the abovementioned article have been studied and some other instances which have appeared in the words of jurists have been introduced such as divorce, apostasy, to be wanted by law and if one of the spouses is hiding.
    Keywords: Adultery, apostasy, sexually transmitted disease, hidingof the spouse