مقالات رزومه محسن ملک افضلی اردکانی

The verbal manifestation of the phrase “lā yaʾbā al-shuhadāʾ izā mā duʿū” in the Āyah of Dayn (Debt) has been discussed by jurisconsults and commentators regarding both the ruling and the restriction of the ruling. Regarding the nature of the ruling, some consider it to be Mawlavī (authoritative), while others consider it as Irshādī (guiding). Regarding its subject, some consider it as referring to the act of giving testimony, while others take it as referring to bearing witness. There is yet another group of scholars who take it as referring to both issues. These differences of opinion exist despite each opinion being specifically based on the interpretation of the aforementioned phrase, which raises the question of what is the source of divergence. Clarifying how these opinions relate to the disputed phrase is necessary, because it will resolve ambiguities in the interpretations of the Āyah and leads to accurate understanding. In doing so, the present research analyses and clarifies the sources of interpretation for each of these opinions using the principles of Istizhār (interpretation) and the Ijtihādī (judicial reasoning) method. It is concluded that the disputed phrase appears to be Irshādī (regarding the type of ruling), and referring to bearing witness (regarding the subject of ruling).

Although the famous Jaʿfarī jurists supposedly agree on the lack of independence of safīh (Arabic: سفیه, imbecile) in marriage, their interpretation of maturity and being extravagant is not the same. A key question arises about the relationship between “maturity” and “marriage” since “maturity” means the possession of preservation and competencies of property as one of the following conditions of contracting parties in the financial contracts intended by Holy legislator, and marriage occurs in a non-financial nature. The ways of recognizing of maturity in marriage in any sense are also different and connected to legal and social issues in this regard. Many attempts to amend the civil code related to the age of marriage and still remain without any results are rooted in the juridical ambiguities of the issue. This article, which uses the sources of ḥadīth (Arabic: حدیث) and jurisprudence using an analytical method, proves the hypothesis that maturity in marriage for most of the late jurisprudents means the necessary intellectual maturity in choosing a spouse and starting a family, not the possession of preservation and competency of property. Clarity in presenting the desired concept of marriage as a condition for maturity in marriage ends many social problems that lead to the establishment of civil laws without adequate enforcement guarantees, and sometimes incompatible with Jaʿfarī jurisprudence.

"Rent-seeking" as one of the most important economic deviations in various societies has a significant impact on the slow pace of economic and social development and progress. The aim of this research is to study the jurisprudential ruling on "economic rent-seeking," which has widespread social implications and its effects on the ethics of society, security, stability, and peace of the community and people are significant, and it is itself influenced by the state of economic education in society. By analyzing the prohibition evidence of "economic rent-seeking" and paying attention to its destructive effects and damages in various ethical and social dimensions, the necessity of presenting educational methods and strategies to properly confront this issue becomes clear. The present research question is: What is the jurisprudential ruling on the use of "economic rent-seeking" and the educational approach to confront it? The research method in this article is of the "descriptive and analytical" type, which is done by referring to jurisprudential sources and analyzing the evidence to infer the ruling on "rent-seeking." Narrational evidence such as the prohibition of injustice, the prohibition of consuming unlawfully obtained wealth, the prohibition of sin and aggression, and the prohibition of discrimination indicate the illegitimacy of "rent-seeking." The spread of "rent-seeking" disrupts the social and political system, creates class differences, and violates the rights of individuals. The appropriate solution to counteracting "rent-seeking" involves promoting Quranic teachings, developing awareness of the social rights of others, strengthening the inclination towards justice, and facilitating the performance and correction of ethical behavior. In the negative aspect, it involves combating the roots of deviation, monitoring, and closing the loopholes of corruption and criminalization, and punishing rent-seeking deviations.

The main purpose of this study is to investigate the reasons for criminalizing economic rent in jurisprudence. Rent is a phenomenon that most societies today face a wide range of destructive effects in various economic, political, social and information fields. Rent in political literature means granting a privilege or monopoly to certain people, which is sometimes considered an inalienable and legal right, but in economics it is anti-value and the income from it is considered illegitimate.Since political struggles also form the basis of a large part of the economic rent, political currents seek to employ the government in the economic interests of their party, group or convergent currents and sometimes to put pressure on the government, seeking to create rents in various forms, including Rents are economic.Considering the major harms of economic rent in different infrastructures of the society, it seemed necessary to conduct research in this field and while examining these harms in detail, the jurisprudential principles of economic rent should be examined.This research is based on a descriptive method and using documents and library resources and is based on the assumption that in the rules of Islamic jurisprudence can be found several reasons for rent criminalization; Rules such as: the rule of no harm, the property of falsehood,The findings of this study indicate that from the point of view of jurisprudence, the obligatory ruling is rent and the special eating of sanctity, and in terms of situational ruling, it guarantees the rent-seekers and will disrupt the Islamic system.

Given the importance of preserving the Islamic regime and the Islamic society, a Muslim ruler, whenever finds it expedient, can make special laws and regulations and issue special orders as government decrees. Attention to the nature of a government decree shows that this kind of decree is not among any of the primary and secondary rules, rather in case two decrees meet by accident at the same time (being mutazāhim), a government decree may cause the provisional inexecution of the two dcrees. That is to say, sometimes in enacting decrees, when two decrees – whether be two primary decrees or two secondary decrees – meet by accident at the same time, a Muslim ruler, considering both the interests of the Islamic regime and the maxim “the primacy of more important instances over the important ones” can choose and enact one of the decrees which is more important and the most useful one and ignore or inexcute the other decree temporarily. As soon as this problem is resolved, the primary decree returns back to its first state and becomes operative. In this article, the question has been dealt with on the basis of theoretical and fundamental investigation drawing upon a content analysis. Through analyzing the findings and studying the instances, the conclusion is made by the writer that a Muslim ruler has this right and authority to choose between the two decrees when they meet by accidence, the one which is taken to be more important than the other according to circumstances and expediences.

The “parallel salaf contract” is one of the contracts created for the purpose of financing and development in the secondary market.There are also types created for this contract, each of which is evaluated with its own characteristics.The degree of compatibility of this contract with the jurisprudential and legal criteria explained in the“salaf contract” is an issue based on which the present study has been compiled by analytical and descriptive methods.It is worth mentioning that justifications or executive mechanisms have been created for the compatibility of such contracts with jurisprudential and legal criteria However, in this article, in addition to explaining some of the points and objections that exist in this field, some of the answers given in this regard are reviewed. The result of this research indicates that, contrary to some of the ideas expressed in this field, the common type of such a contract does not comply with the valid jurisprudential criteria in the “salaf contract”.

According to Islam, pedagogical education and training is recommended and obligatory. The luminous verses of the Qur'an and the noble narrations of infallible Imams emphasize the importance of the position of education and pedagogy and the influential role of the family and government in this regard as two important foundations. In the narrations, there are many citations to prove the common duty of the government and the family in the field of education and training.    The question that arises here is, in the event of a conflict between the government and the family, which institution is preferred? The present article seeks to answer the question using a descriptive-analytical method. Findings show that the concept of priority of dutifulness in childhood is specific to the family, and in the period of education and pedagogy as well as acculturation, the government has both responsibility and obligation according to initial rules and it is partner and representative of the family in the matter of education and pedagogy as per the secondary rules.

Although exercise is one of the sources of vitality and health of the human soul and body, and the intellect and Sharia recommend it, some sport disciplines are dangerous and cause harm to athletes. Such harms are sometimes temporary and minor, and sometimes lead to severe injuries, disability and lifelong disablement, and possibly the athlete's death. In this study, through a descriptive-analytical method, the authors seek to obtain a rule to infer the precept of all types of dangerous sport disciplines. The hypothesis of this study is that those sports which harm the body are per se impermissible according to the ruling of intellect and Sharia and in case they cause harm to or the death of another, give rise to liability. This study concludes that pursuing these sports with the good motive of, for example physical readiness in order to defend oneself and express glory and readiness to defend Islamic territory and society against malicious persons, is permissible due to necessity and as a result of a secondary rule and subject to certain conditions; even occasionally it is obligatory due to being the essential precondition of obligation and liability is also excluded in case of prior acquittal. Obviously, malicious or criminal personal motives including villainy, revenge and unsafe competitions keep the case subject to the primary rule.

Education is one of the most essential needs of a society. It leads to material and spiritual development of that society. The right to education has always been one of the most important human rights concerns and has been taken into account in religious principles and legal documents. Using a descriptive-analytical method, the present article aims to explain the well-known opinions and arguments concerning the right to education. It also seeks to prove the important position of the two institutions of family and government, and the trainee's right to education. It attempts to answer the question as to what the principles and evidence of the right to education from the perspective of jurisprudence is, and how it is reflected in the constitutional rights of the Islamic Republic of Iran. In this regard, Islamic sources, legal documents and opinions of thinkers concerning education, as well as the analysis and evidence available concerning the right to education have been examined. The findings show that there is no conclusive evidence without any other influence (family and government) regarding the right to acquiring education and moral instruction. These two are necessary for each other. Education is the joint responsibility of parents and the government. Also, teaching and instruction is an obligatory duty of the individual or the learner who should not fail to develop his talents.  This process should be accomplished jointly by the individual, the government and the family institution.

The issue of cooperation between Muslim jurisconsults and despotic rulers and that of taking up governmental offices have been the subject of controversial discussions among the Muslim jurisconsults. Drawing upon the descriptive-analytic method, the present research seeks to find an answer to the basic question that ‘given the critical position of jurisdiction and exceptional status of a Muslim jurisconsult, who, from the Imamite (Imamiyyah) perspective, is regarded as the representative of the Divine Law in the period of Occultation, what decision can be made about the juridical cooperation between a Muslim jurisconsult with secular governments?’ The first thesis or answer to this question is that, on the basis of the preliminary legal decision, any sort of cooperation with the despotic ruler in a secular government is unlawful or forbidden. This decision can be established with recourse to some legal arguments. However, in cases of the appearance of secondary titles and consequently on the ground of secondary decision (rule), cooperation with such governments, including one’s taking up judicial office may become necessary. It is evident that this legal permit is bound to certain regulations of the secondary ruling as well as certain stipulations.

One of the subjects studied by the early and late jurists, according to what Sahih Burayd ‘ijli narrated from Imam Sadiq (AS), is the issue of performing the Hajj of one who deposits money with somebody else. The heirs of the obliged and afforded deceased may refuse to perform his Hajj or may not let a trustee do so. This narration states the general rule for this issue. The author calls such a Hajj as ”Hajj-i Hisbi“ (surrogated Hajj) because the Hajj obliged for a dead one should not be abandoned and the man, who the dead one deposited his money with, is obliged to perform the Hajj as one of the Hisbi affairs. This subject has several sub-divisions; all jurists are concerned only with the principle of the obligation of performing the Hajj by the recipient of the deposit but there are serious differences of opinions in sub-issues such as the possibility of the extension of this rule to other financial obligations and debts or to other performers, the necessity of the ruler’s permission and so on. This study is organized to re-examine the principle of this rule and present a comprehensive division of the jurists’ sayings about its most important subdivisions by a documentary and analytical method to prove this hypothesis that: performing the Hajj-i Hisbi is not dedicated to deposit and the permission of the ruler is not a condition; However, to avoid further disputes, obtaining ermission from the Islamic ruler is a good idea, and all the conditions are set for the protection of the interests of the deceased one, the agent, and the heirs.

The necessity to form an Islamic government as a means of preserving the interests of Islam and Muslims is certain in ShiÝi jurisprudence. No doubt, to form a government and to run its related affairs requires access to financial resources. To do so, in the political jurisprudence (fiqh) of Islam, numerous resources have been recognized and studied, but no or scant mention has been made of endowment. However, making use of the various resources in ShiÝi fiqh, one is able to identify or create religious endowments which, as a state financial resource, can be put at the religious authority’s disposal in order to be used for the necessities, as well as the interests of the Islamic community. Drawing upon an organized analytical method, this article first seeks to identify the jurisprudential capacities for the important jurisprudential tasks, and then to study the defined authorities a religious authority has over the religious endowments. This research work rests on the hypothesis that there are various jurisprudential capacities in the ShiÝi dynamic jurisprudence to be used as one of the financial sources of the Islamic state; as the religious power and authority of religious authority and his jurisdiction over the public endowment is certain. This research work aims to prove the hypothesis in question.

The holy religion of Islam, in order to protect the social and economic security of secure and holy places and respect their sanctity, has provided special sanctity and holiness for certain times (Dhu al-Qa'dah, Dhu al-Ḥijjah, Muharram, Rajab) and places (Shrine of Mecca and other honored places with differences in opinions) and aggravates or increases the punishment of perpetrators of crimes in these areas in addition to the prescribed religious punishment. If the crime committed is murder, its punishment is “full blood money and one-third” according to a Sahih narration of Imam Sadegh peace be upon him. Throughout the history of Islamic jurisprudence, the individual entitled to receive the one-third surplus has been the one entitled to the blood money itself and this ruling indicates that the Islamic jurists have not considered this extra amount to be of a nature other than the blood money. However, the hypothesis of this article is that the one-third in excess of the blood money has a “Taaziri” nature. In organizing the present research, analysis of texts and Ijtihadi method especially rectifying the effective cause and cancellation of specificity have been used. Proving this hypothesis has several implications the most important of which is the Islamic state's right to receive the one-third in excess of the blood money as one of the Islamic state's financial resources. Amending the relevant articles of the Islamic Penal Code is another expected implication of this theory.

The essential needs of society on the one hand and some endowments as not usable on the other hand, shows the necessity that there should be some plans that with the permission of the Waliyeh Faqih, the income of some endowments in certain cases can be utilized to meet the needs and in other purposes. This study, which is carried out by analytical and descriptive methods and with the help of ijtihad arguments, is based on the assumption that in addition to the arguments of absolute jurisprudence and government rulings, there are other reasons such as the need to form an Islamic government, the need to preserve the system and interests of Muslims, the principle of preference of the most important over the important, that form the principles of guardianship of Waliyeh Faqih over endowments. It is clear that the observance of the benefits of the endowment takers and the definite expediency of the Islamic society and Muslims determine the limits and general framework of his guardianship. Considering the obligation of the action based on the conditions set by the endowment giver and the violation of the characteristics of the endowment completely as being not permissible, it can be seen that in all cases, it is the rival assumption that has been ignored according to the principle of "the action of waqf must be taken based on what the endowment giver has determined".

Observing the sources of Fiqh and the words of the Fiqh scholars indicates that the subject of atonement is merely considered as an individual worship. While, if it is viewed from the perspective of political Fiqh, instead of being as an individual worship, first and foremost, with regard to its social effects, it should be regarded as a social and governmental affairs. Therefore, the Islamic State can receive funds and goods of atonements which are from the punishment aspect, and spend them in Shari'a affairs. To prove the hypothesis, the descriptive analysis method is used. Also, the sayings of the Fiqh scholars and the methods of Tanqih-e manat (Sprawling areas) and abandonment of the property of the similar Fiqh subject in Ijtihad has been used. Moreover, the non-litigation and reputation of giving the financial atonements as one of the financial resources of the Islamic State is of the theoretical foundations of this viewpoint. The ultimate goal of this idea is to institutionalize this subject legally and organizing it in related government organs.

The issue of the influence of worship on the ethics and religious education of the servants of God is undeniable. That this interaction is realized in what areas of individual and social dimensions of devout human life is the subject that is considered in this article. The conceptualization and expression of the nature of atonements and their performance effect as a religious worship is another issue which has been considered by the method of description analysis of religious texts, especially Quran verses concerning atonements. This article assumes that there are numerous educational and moral effects on this worship – the performing of atonements. Finally, with the use of divine words, "the returning to Him", "the stability of the foundations of faith" and "the punishment and purity of the perpetrator of unlawful act through punishment", are of these effects.

In Islamic jurisprudence, several issues about Expiation of deliberate murder have been taken into consideration. One of these issues that the past and late jurists agree or disagree on is invalidating the expiation in cases of murderer's retaliation or death. Each of these issues, which rely on some arguments, have been explained without considering the establishment or absence of establishment of Islamic government. The aim of this study is to find the better and effective issue in the time of establishment of religious government; the method is Ijtihadi and based on the analysis of the texts and viewpoints of the jurists. The study is organized based on this hypothesis that the viewpoints of the jurists against the invalidation of expiation with the murderer's death is superior to the most of the jurists' viewpoints and based on some arguments, the Islamic government is responsible for its attainment. One of the arguments is taking the financial expiation as being Hesbieh (which has a nature of punishment) and considering it as one of the financial resources of the Islamic government. The findings of the study suggest the necessity of attaining the expiation of the murderer's properties after his death and using it in religious specific advisable things by the heirs or Islamic government.

The rule of distress and constriction negation is among the oft-used rules that is manifested in different areas of jurisprudence and law. One of the uses of this rule is in family jurisprudence, specifically in restricting the wardenship and preference of the husband over the family. According to the findings of the present study, that is obtained through analysis and description of the jurisprudents’ terms and the laws of Islamic Republic of Iran, preference means managing the husband’s rights, and in return, duties and responsibilities are specified for wife which are considered as the symbols of the man’s preference. The most important ones are as follow: the necessity of husband’s permission in woman’s going out in cases that is against the husband’s taking advantage of her; the necessity of obeying and submitting to the husband based on common law, and the need of complying women with her husband’s decision in determining the place of residence. On the other hand, the rule of distress negation, through presuppositions such as being personal and actual distress, restricts the superiority and preference of men in some cases. The present study, after considering some topics in the rule of distress and constriction negation, whether it be a typical or personal as well as situational or actual, explains how this rule constricts the preference of the man in the above-mentioned cases based on Shi’ite Jurisprudence and laws of Islamic Republic of Iran.

Acc0rding to the Shii political fiqh, the right to rule over human beings belong to God, His Messenger, and the Infallible Imams. However, in the period of Occultation, this rule can still be applied by highly qulified religious jurisprudent (mujtahid-e jÁmiÝ al-sharÁyiÔ). This sort of rule is the just rule and is contrated with the rule of a man who sits on a throne illegally without being appointed as a ruler by God. This sort of ruler is what is called a 'despot' who exercises his rule in a cruel and oppressive way. Taking positions in the government ruled by a despot is taken to be not only a sort of lending support to an oppressive and cruel rule but also a means which paves the ground for a despot to realize his oppressive goals, put an end to the Islamic rulings, weaken the people who are on the Right Front and finally move away from administering justice in society. This article seeks to establish the jurisprudential maxim 'prohibition of the rule of a despot'. In this connection, after analysing the concept of the guardinship of a despot, an attempt is made to establish the total prohibition of such a rule drawing upon the legal arguments and the views raised by the Muslim jurists. The maxim is also supported by reason. In this way, the maxim can be formulated as 'the guardianship of a despot is prihibited unless there is a sound argument on which his rule is permitted.' According to this maxim, interaction with a despot is definitely illegal and thus forbidden in Islam. However, the difficulties and hardships faced by the Shii people when a despot is in power, there are certain permissions are given by Infallible Imams to the qualified people to cooperate with a despot with the intention of paving the way for meeting people's needs, enjoining the right and forbidding the wrong; and in a certain circumstance, as being under duress or constraint, they issue a permit of necessity or enforced concealment. These permits are the exceptions to the 'maxim of the prohibithion of the gurdianship of a despot'.

In every community, strike, since long, has been used as a tool to attain further rights in the face of governments. Response of governments to such social phenomenon in the long history remains to be more an approach with worry and dissatisfaction; for the same reason, its permission enjoys contradictory aspects and ambiguity within existing laws of nations. In the Islamic government, legitimacy of strike or non-strike has to be determined in terms of jurisprudence so that a basis for policy-making and writing of laws can be set in this regard. Strike, in the Islamic government, seems to be permitted based on principle of lawfulness, principle of immunity, principle of freedom and in cases by citing rules like advice of Imams, endeavoring Muslim affairs and enjoining the good and forbidding the bad; but there are some situations that contain the permission based on some evidence. Such evidence, principally, goes back to “principle of protecting the regime” as well as to quality of treaties signed between government and strikers, which is typically evidence of private law. This article deals with this topic of an importance with reference to library sources and analytic-descriptive methodology.

Based on the principle of "Freedom of Contracts" and many arguments such as Tijara-An-Traz which translates as "Trade based on Mutual Consent", autonomy and mutual consent of the parties is considered the most important factor for legitimacy of contracts and deals. Today, however, treatment contracts in the private sector are limited with government’s intervention regarding the financial relationships between doctors and patients and physicians are required to follow governmental rules.
This study uses a descriptive analytical methodology and data were collected from libraries.
Findings: According to preliminary rulings, the government cannot set a certain price for the business of health staff in private centers and cannot force doctors to abide by it and the physician can, through an agreement with the patient, set a price for his medical services based on his skill, experience, gravity of the operation, common sense, and economic conditions of the society and there is no judicial reasoning on the prohibition to receive such money. Some others have accepted the legally binding nature of the governmental laws based on religious rulings but they do not believe it also concerns such examples and details of governmental laws and do not regard this issue as a religious ruling.
it is incumbent upon everybody to protect Islamic society and setting tariffs for medical services by the government is one of the ways to protect people’s rights regarding healthcare; otherwise, every physician can charge staggeringly extra money from the patients and many people may be deprived from these medical services. On the other hand, when the accept the legally binding nature of governmental rules and regulations, we cannot exclude these cases from such laws because every whole identity cannot be separated from its parts, therefore, not only is receiving kickbacks the criminal act, it is also religiously prohibited and the physician has committed a sin and must return the money received from the patient.