فهرست مطالب سید مهدی جوکار

The emergence of newly created institutions leads to the formation of new rational structures, which it seems necessary to examine their validity in order to solve emerging issues. The issue is, what is the validity of this range of buildings? It is assumed that contemporary intellectual structures have intrinsic validity. Famous scholars believe in the non-intrinsic validity of rational constructions, so they face restrictions and difficulties in confronting invented constructions and discovering the consensus of the Shariah. The positive result of the upcoming research is the unpopular theory, that is, the inherent validity of rational structures, especially contemporary rational structures. By looking carefully at the Usuli works of Imam Khomeini (RA), the conclusion is reached that the view of His Holiness is different from the Usuli scholars. In this way, they adopted the theory of non-deterrence in relation to non-invented constructions while accepting the validity of credit. But regarding the contemporary rational constructions, it can be said that it believes in the inherent validity, because it is rationally (to us also rationally) acted on it, and failure to adhere to them leads to difficulties and embarrassment and disruption of the system. The rule of attachment, grace and expediency element strengthen this view. The upcoming research has addressed this issue with an analytical and descriptive method.

The genesis of Iran's encounter with modern legal principles can be traced back to the Constitutional Revolution of the early 20th century [Enghelab-e Mashrooteh], a period that heralded significant legal and political reforms aimed at dismantling the autocratic governance structures of the time. The revolution catalyzed the introduction of Western legal concepts such as law, parliament, and constitution into the Iranian socio-political lexicon, laying the foundation for a new legal order. This order was characterized by the amalgamation of religious decrees with modern legal structures, a process that, while innovative, was not devoid of challenges. The crux of the issue, as identified in the current research, lies in the hasty and uncritical adoption of these new legal concepts without a thorough understanding of their theoretical, philosophical, and historical underpinnings. This oversight has precipitated a crisis of theory and practice within the Iranian legal system, manifesting in conceptual ambiguities and operational inefficiencies. At the heart of this research is the reevaluation of the punishment of imprisonment, a fundamental concept in criminal law, through a comparative lens focusing on modern criminal law and Imamia jurisprudence.

The research is driven by the imperative to scrutinize the punishment of "imprisonment" within the context of Iran's hybrid legal system, specifically examining how this form of punishment is conceptualized, rationalized, and implemented in modern criminal law vis-à-vis Islamic law. The overarching question guiding this inquiry is: How does the comparative analysis of the punishment of imprisonment in modern criminal law and Islamic law illuminate the theoretical and practical discrepancies in the Iranian criminal law, and what implications do these findings have for the evolution of a more coherent legal framework?

The hypothesis underlying this research posits that the theoretical and practical dissonance observed in the application of imprisonment in the Iranian legal system stems from a fundamental misalignment in the criminal rationalities governing modern criminal law and Islamic law. This research suggests that while modern criminal law predominantly views imprisonment through the lens of disciplinary power aimed at the normalization and psychological correction of the criminal for societal reintegration, Islamic law approaches punishment with a focus on the spiritual and moral rehabilitation of the individual, emphasizing the afterlife and the perfection of the human soul. This divergence, it is hypothesized, results in fundamentally different implementations of imprisonment, with the modern approach prioritizing correctional normalization, and the Islamic approach advocating for the preservation of the individual's moral agency and freedom.

To explore the delineated research question and hypothesis, the study employs a multifaceted methodological approach that combines doctrinal research with inductive, interpretive, and argumentative analysis. This methodology is predicated on an extensive review of philosophical texts, legal treatises, and jurisprudential discourse from both the modern and Islamic legal traditions. The framework for this comparative study is structured around identifying and analyzing the differences in criminal rationality between modern criminal law and Imamia jurisprudence and how these differences manifest in the conceptualization and practice of imprisonment.
     A critical component of this methodology involves examining the evolution of the modern prison system, particularly its emergence as a mechanism of disciplinary power in the modern era, aimed at seizing the individual’s soul and will for the purpose of societal normalization. This analysis is juxtaposed with the examination of imprisonment within Imamia jurisprudence, where the focus is on penal correction with an emphasis on moral and spiritual rehabilitation, highlighting a significant departure from the modern system's focus on psychological correction and normalization.
     Furthermore, the research methodology includes a critique of the existing theoretical and practical frameworks within which imprisonment is situated in the Iranian legal system, arguing that a neglect of the nuanced differences in criminal rationality has led to the uncritical adoption of modern penal practices that may not align with the philosophical and ethical underpinnings of Imamia jurisprudence. Through this comparative analysis, the study seeks to unearth the theoretical and practical implications of these differences, offering insights into how a more informed and theoretically coherent approach to the punishment of imprisonment could be developed within Iran's legal system.

The findings of the study illuminate a significant divergence in the conceptualization and application of imprisonment between modern criminal law and Islamic law. Modern criminal law, with its roots in disciplinary power, seeks to reform the criminal by targeting the soul and will, aiming for normalization within society. This approach signifies a qualitative shift from physical to psychological modes of punishment, where the prison becomes a space for the psychological transformation and normalization of individuals. The emphasis is on altering the criminal's personality and psychological structure in relation to their crime, marking a profound intensification of power that penetrates the deepest layers of individual identity.
     Contrastingly, Islamic law offers a fundamentally different perspective, viewing punishment as a means to achieve the perfection of the human soul and maintain civil order, grounded in the attainment of afterlife happiness. This system prioritizes the individual's freedom and moral agency in accepting Islamic law and self-correction. Punishments, including imprisonment, are framed as corrective measures that deprive the individual of certain freedoms only to the extent necessary for societal protection and personal purification from sin. The emphasis is on voluntary correction and spiritual discipline, with non-penal institutions like repentance playing a significant role in the penal rationality.
     The discussion of these findings highlights the theoretical and practical challenges posed by the hybrid nature of current Iranian legal system, which incorporates elements of both modern and Islamic law approaches to punishment. The research underscores the importance of penal rationality in defining the effectiveness and ethical grounding of penal institutions. Without a clear alignment with a coherent penal rationality, the legal system risks perpetuating theoretical confusion and practical inefficiencies.

The study concludes that the current form of imprisonment in the Iranian legal system represents a critical juncture between two divergent penal rationalities. The acceptance of modern imprisonment practices, characterized by an emphasis on psychological normalization, does not necessarily represent a more humane approach to punishment but rather a shift in the focus of disciplinary power from the body to the soul. This shift, while reducing the physical harshness of punishments, intensifies the control over the individual's identity and autonomy.
     In contrast, the Islamic penal system, as understood through Islamic law, offers a vision of punishment that centers on the spiritual and moral rehabilitation of the individual, respecting their freedom and capacity for self-correction. This approach aligns punishment with broader ethical and spiritual objectives, such as the preservation of fundamental human interests and the perfection of the human soul.
     The research calls for a critical self-awareness within the Iranian criminal law system to reconcile these divergent penal rationalities. It poses pressing questions about the future direction of Iran's penal system: should it adhere more closely to the principles of Islamic law, or continue incorporating aspects of modern penal rationality? The exploration of these questions requires further investigation into the social, cultural, and legal feasibilities of adopting either penal rationality more fully.
     This conclusion serves as a call to action for legal scholars, practitioners, and policymakers to engage in a deeper examination of the foundational principles guiding punishment in Iran. By contemplating the possibilities for embracing either Islamic  law or modern penal rationality, future research can pave the way for a more coherent, just, and effective legal system that respects both the individual's dignity and societal needs.

Having children and its role in strengthening the family is one of the important issues in Islamic societies. Islamic jurists and thinkers have given different opinions about the multiplication of generations. Additionally, each of them tries to prove their opinion by using jurisprudential evidence and implement its effects in the family system. The current research was done according to analytical-documentary method and aimed at the role of having children and multiplying the generation on family consolidation, relying on the opinions of jurists about the population and criticizing the opinions of this field. The results showed that among the opinions of Islamic thinkers regarding the population, the theory of reproduction and child bearing is desirable in normal circumstances and sufficiently obligatory in times of need. Other jurisprudential views about the population have been interpreted without paying attention to jurisprudential-Quranic-narrative evidence and the effects of the multiplication of generations on the consolidation of the family system.

Economic sanctions as an economic war have challenged the Islamic system. And the economy is with infidel countries whose political policy is in opposition to the embargoes. The issue at hand is what are the jurisprudential barriers and permissions of these types of agreements and how are they analyzed in dealing with each other? The descriptive-analytical study of this issue shows that the documentation of the permission is strong in the direction of preserving the Islamic system, and it assigns the generality of the upcoming obstacles such as the rule of negation of mustache, negation of the guardianship of infidels and Alaw. Jurisprudential documents, including the rule of urgency, the element of expediency, and maintaining the system, are among the secondary titles of converting the first ruling into the second, which indicate the permissibility and general allocation of obstacles. Also, the rule of repelling corruption from the corrupt, the issue of the conflict between the harmful and the permissibility of taking help from the infidels in war, along with the rule of reason and the construction of reason, indicate the violation of covenants, and it allows the Islamic ruler in terms of government decrees or in the field of "al-Faragh region" to initiate its conclusion.

Many problems related to the family system and society about the population are due to the lack of understanding the benefits of having children. It is very important to know the Shariʿa rule of population growth. Accordingly, the educational effects of having children based on the teachings of Islam in the family system and society are important to note. Population growth is the solution to many problems that arise owing to a lack of children or because of having one child or because of population decline. In order to derive the Shari'a ruling on population growth, the present study briefly reviews the evidence concerning population growth, and then the educational effects of having children. The important question is:  What is the Sharīʿa ruling on population growth, and what are the educational effects of population growth on the family and social system? Based on the findings of the research, which was carried out using an analytical-descriptive method, population growth is desirable as evidenced by verses, narrations and juridical maxims. As per the evidence found in Islamic Shariʿa, increasing the population in normal circumstances is recommended and it is compulsory in cases the sovereignty and national security of the nation of Islam are at risk. It also has many educational effects in the individual, family and community dimensions, such as: the sociability of children, social adjustment, emotional, cognitive and social growth, elimination of poverty, peace of mind and soul, strengthening of the family foundation, physical health of parents, etc.

One of the problems encountered by the theory of Velayat-e-Faqih (Supreme Leader) is the extension of religious legitimacy and justification to the three powers and the main organs of the state. Absolute sovereignty is the right of God, the owner of the universe, and on this basis, sovereignty must be authorized by him and implement his will in all matters. Based on these principles, as well as jurisprudential-theological principles, the constitutional legislator must adhere to an integrated form of legitimacy. However, what is important is the positive and argumentative dimensions of this procedure. Accordingly, the main question of this article is how the sovereignty and religious rule of the three powers emanating from the supreme leader are justified?Research approach: In this study, using library resources, the theory of integrated legitimacy has been described and analyzed based on jurisprudential arguments and opinions of jurists. Moreover, the religious legitimacy of the ruling powers of the Islamic Republic of Iran has been explained based on concepts such as appointment, legal permission, representation and guardianship

Among the rights of parents after divorce is the right to visit the child. Meeting with a child after divorce has many educational effects. The importance of these works, according to legal and jurisprudential principles, dictates that the person who has the custody of the child should provide the non-custodial party with the conditions to visit the child. The right to visit a child is one of the functions of custody in the famous language of jurists. the right is recognized in Article 1174 of the Civil Code and basically, it results from the application of rules such as(la Haraj va La Zarar). In such a way that disobeying this right, while harming the non-custodial party and being the guarantor of the obstruction, causes harm to the child in terms of violating special educational rights. This research is descriptive-analytical method and using library resources, following the jurisprudential analysis of the fundamentals of the necessity of fulfilling the right to visit a child during separation and preventing the implementation of this right and its educational effects such as: creating an emotional void in children, character impairment children, aggression, psychological insecurity of children, etc.

One of the important issues that is seriously raised in legal circles and courts is the correctness or incorrectness of obtaining the right of attorneys, in case of defending the unjust claim from the perspective of jurisprudence and law. What has been examined in the present paper is whether the power of attorney is legitimate in defending the false claim and the right of attorney arising from it? Imami jurists agree on its sanctity. With this explanation, in jurisprudence and law, it can be respected from several perspectives - both in terms of power of attorney and in terms of power of attorney. This research has dealt with this issue based on the analytical-descriptive method and after expressing the opinions and explaining the opinions of the jurists, it was concluded that accepting a power of attorney to defend a false claim and obtaining a power of attorney is forbidden; Because the obvious example is the possession of property in vain and the protection of sin. Therefore, it is appropriate for the legislator to impose a legal prohibition in this regard by enacting a single definite article, and the law should be approved in accordance with the issue.

Dog-walking, in its different forms, presents a major social-legal challenge in society. The Islamic jurisprudence (fiqh) and the existing case law did not explicitly ban or permit dog-walking, a situation which has led to arbitrary enforcement of law. Due to the non liquet situation (also known as legal lacuna), dog-walkers in public spaces or residential areas and some supporters of such actions often rely on the absence of established legislation and cite the principle of legality of offense and punishment to argue not only that dog-walking does not represent a crime but also any ban or enforcement of punishment under the order and security framework constitute a denial of citizenship rights. Therefore, it is essential to explore the issue within the framework of Islamic jurisprudence in an attempt to fill this legal lacuna through establishing a principled view on criminalization of dog-walking.

The present study takes a descriptive-analytic approach together with a desk research methodology used to write this paper.

The principles of originality, integrity and honesty have been adhered to while throughout the process of writing this paper.

Based on a number of general provisions and applications of relevant jurisprudential arguments as well as the provisions of Article 618, Discretionary Punishment Acts (Tazīr) and Articles 522 and 523, Islamic Penal Code, it can be argued that that first, dog-walking in public spaces has not been authorized by the rules of sharia and second, given the health risk attached, it can be prosecuted and punished as the case may be under applicable laws.

Given the health risks potentially caused by dog-walking, the l egal lacuna in this respect and the fact that Islamic traditions (hadiths) disapproves of dog-walking, it is recommended in this paper that dog-walking should be criminalized. The paper also provides a number of suggestions for legislations to ban dog-walking in public spaces.Please cite this article as:Alishahi Ghalehjoughi A, Jokar SM, Raees Al-Sadati Z.Criminalizing Dog-Walking in Public Spaces: From Islamic Jurisprudence Analysis to Legal Lacuna (Mapping an Approach to Health Risks). Medical Law Journal. 2022; 16(57): e34.

Jurists always discuss performing of Hajj by using children’s properties. Some narrations permit parents to use only the properties of their immature children; while, others confirm the generality of using property and are somehow in conflict with the narrations of the first category. In general, if a parent needs his child’s property, he is permitted to take it as alimony; otherwise, he is not permitted to withdraw the property because of the generalities in لا یحل مال امرئ مسلم and the consent conditioned in verse 29 of Surah al-Nisa. Regarding the obligatory Hajj, due to his guardianship in possession, the parent can use his immature child’s property as a loan. This descriptive-analytical research seeks to resolve the conflict between the two categories of the narrations. By examining jurists’ for and against words and analyzing the arguments of each group, the research analyzes different dimensions of the issue.

The civil codes of Iran and Islamic religions are unanimous in a murderer’s disinheritance whereas they mention a number of secondary details that implies conflicts and leads to split decisions made by jurists or based on judicial practice. For example, a court of law orders disinheritance upon any type of murdering, but large discrepancy exists among religions and their jurists. Moreover, juristice and legal ambiguities still can be found in the inheritance after abetment, the extent of inheritance deprivation in the absence of criminal intent, the effect of murder of Hajeb (someone who disinherits) as well as the prerequisites of inheritance deprivation and its range in various types of murders.The current study independently examines each view and extracts different viewpoints after analysis and criticism. Since Islamic jurists either take a dumb approach to some issues like abetting murderer, murder of Hajeb, and murdering without criminal intent, or do not provide sufficient explanations, the way must be paved by jurisprudence or inference of courts upon legal gaps. Some suggestions have been offered to overcome the problem.

In civil law, based on Imami jurisprudence, particularly the rule of " Divorce is in the hands of the one who marriages " the authority to divorce is entrust ed to the husband as the first rule. However, as marriage is a contract that creates material and legal effects between the couple, consequently, there are a series of duties and rights based on the principle of justice between the couple, so the wife ’s ri ght to divorce can be granted in certain conditions; one of the predictable positions would be cases in which the wife suffers from excessive medical impairments. Now the authors' question is that considering the focus of jurisprudence and law on legal cas es under the rule of "no hardship" (La Haraj), are there any emerging medical predicaments based on which the right to divorce can be delegated to the wife?

This research has been written by a descriptive - analytical method and it has been tried to study some emerging examples of painful therapeutic incidences which grant the wife’s right to divorce according to the focus of jurisprudence and law on traditional examples under the rule of "no hardship".

Although in the early l egislative system or jurisprudential writings, the primary focus on granting the wife’s right to divorce was narrowed to a series of classic examples, by analyzing the original jurisprudential sources and isolating the adequate causes, it was found that in some cases in which the wife suffers from physical, sexual or Spiritual difficulties in the family, based on the criteria of jurisprudence and law, mainly based on the application of the rule of hardness and embarrassment , acquiescing the wife’s right to divorce is considered permissible and inevitable .

A brief look at the variation and magnitude of medical errors necessitates that compensatory ways be determined equitably and appropriate to the situations of the society. In this regard, jurisprudential and legal inquiries to determine the compensator for damages is very essential. The crucial matter in this regard is the doctor's guarantee or non-guarantee. One factor that might have such effect is obtaining letter of innocence from the patient, which has also been known as non-guarantee, or non-liability. According to a view, it is necessary to obtain letter of innocence from the patient for not guaranteeing a physician. Other views consider that the mere consent of a patient to receive medical treatment by the physician is sufficient for not being a guarantee. They not only consider that it is necessary to obtain letter of innocence from the patient but also maintain that there is no jurisprudential arguments and legal support for that. The implementation of the first view and consequently not guaranteeing the physician boosts the number of medical errors and further fatalities. Moreover, establishing the validity of such an innocence, which is, in fact, a condition of non-liability, has consequences. Realization of the other view provides the best for both the patient and the physician. Although famous jurists have not decreed on the recent opinion, it has documented based on the opinion of some scholars such as Ibn Idris. The central claim and idea of ​​the current inquiry are to clarify and justify the lack of necessity to obtain letter of innocence from a patient in the context of inaccuracy of the condition of non-liability with a new look at jurisprudential and legal dimensions of the physician's responsibility in a different statement and configuration.

There is an undeniable divine gift in the name of health and well-being in creation and human life, which may be endangered at times. The purpose of the present article on hazards are the threatening factors that are known as infectious diseases. Following the outbreak of infectious diseases such as tuberculosis, cholera, plague and some deadly diseases such as malaria, typhoid, AIDS, hepatitis and Ebola, the rapid proliferation of a deadly virus called "corona" has become a new and serious topic in the medical community. In order to ensure the health of the people, solid and well-founded jurisprudential-legal principles to create a duty on the Islamic State in the obligation to prevent and control the spread of coronary heart disease can be imagined that the purpose of writing this article, citing jurisprudential-legal arguments and rules, and jurists Expressing the duties of the government in this regard. 

The consistency of this article, like other jurisprudential and legal studies, is based on data extracted from the jurisprudence and law system, and the research method is descriptive-analytical and based on the analysis of the views of Imami jurists and the opinions of jurists.

In the Islamic legal and political system, the government refers to all the pillars of government, including legislative, executive and supervisory, which in the field of ensuring the security, welfare and health of the people, according to the citation, solid jurisprudential and legal arguments, has the duty to ensure the health of society.

Conflict of interest:

 The present study has not been previously published in other scientific journals and is not dependent on any place in terms of research and study originality and is merely a product of the authorchr('39')s thinking and study and is not financially related or influenced by any organization or institution.

Ethical considerations:

 While observing fidelity in analysis, considerations related to research ethics as well as fidelity in quoting texts and citing sources were observed.

In Imami jurisprudence and Iranian law, rationally and religiously, based on clear criteria called the relationship of citation, specific duties and responsibilities based on the four arguments and rules of jurisprudence in the obligation to prevent and control infectious diseases, especially coronary, can be assigned to the Islamic State.

In their effort to develop and to dominate the world around them, humankind have sometimes been overcome by temporal, spatial, and epistemological obstacles. Nevertheless, compared with the extent of the development of the early humans, modern humankind consider themselves successful and somewhat at the end point of progress. The passage of time, discovery and acquisition of new knowledge, however, have always been accompanied by the emergence of new unknowns. Therefore, in this process of constant struggle, humankind find himself faced with the question of which realm of science is beyond their reach, and should not bother themselves entering it. Relying on the Qur’anic knowledge and by scrutinizing the semantic field of the Qur’anic words and paying attention to the discussions of the philosophy of science, this article focused on the above-mentioned question, and concluded that except for the special science of the essence of the Almighty God and the sciences that have been forever hidden behind the curtain of the unseen by God's permission, other potential sciences can be conquered by human beings, and they must make their efforts to fulfill the will of God the Almighty, in accordance with the "position of the caliphate of God" for humankind and the divine “command to build on the earth".

One of the most influential scientific approaches in the twentieth century has been discovering stem cells and their therapeutic effectiveness. On the one hand, countless diseases are considered incurable through valid scientific treatments and on the other hand, the hope for new treatments has been considered a promotor of the medical studies in research centers. Throughout such research pieces, the subject is the patient himself and since all available treatments have been futile for him, attempts are being made to treat him experimentally by implementing unconventional strategies, to see whether there might be a cure for him. The treatment contract is of great significance as it has been admitted as a joint connecting medicine and rights. In cases where the limits and extent of liability are disputed due to possible ambiguities of laws; basically, the heart of the legal relationship of medical professionals with their patients is the contract concluded between them. First, explaining the legal nature of the treatment contract and then using the selected contractchr('39')s general and specific rules will be beneficial in this regard. Meantime, since stem cell research around the world is one of the new and unprecedented therapies and can have short-term and long-term side effects, a principled agreement between the medical team and human trials for medical research will eliminate any vaguenesses between both sides. Although adherence to medical criteria and ethical obligations are not embedded in the contractschr('39') scope, it seems that the physicianchr('39')s liability, if the patient has referred to him with his consent, eliminates many of the problems between them and avoids possible legal disputes. Therefore, accurate knowledge of such a contract, both formally and substantively and conditions of its accuracy and validity, seems inevitable.

Helping others and services to our fellowmen have been carried throughout the history in different ways. It is one of the most important examples of human services called as rescue and relief to the injured and affected people. At any time, people may be affected by disasters such as natural disasters, heavy storms, car accidents and etc. Certainly at the time of such disasters, people need other people’s help with regard to human beings are members of a whole. However, the affected people should be fast rescued. It should be mentioned that the rescue and relief efforts to the injured is the order of Islam religion as the pioneer of serving humanity and eliminating the pain and human suffering by arranging and codifying law, regulations, rules and duties in one hand and also relates to the pure nature of human beings on other hand. Sometimes, rescue and relief operation occurs under conditions which cause problems for both the injured and the relief workers. With regard to the rescue and relief operation, the first responders may face dilemma on dealing with the importance of protecting privacy of the affected people and observance of ethical guidelines.