فهرست مطالب abolqasem alidoust

The jurisprudence of art is one of the new branches of Islamic jurisprudence. Although some of its issues have been discussed in related jurisprudence books, studying it as one of the issues of jurisprudence has been poorly known. Before dealing with the topic, it is necessary to discuss its philosophy. Thus, in this paper we seek to explore the three main subjects of the philosophy of jurisprudence of art; first, we study the essence of “the philosophy of jurisprudence of art”. Then we explain the important challenges of investigating jurisprudence of art such as unappropriated sectioning, not using experts in studying subjects and cases, and alacrity in expressing the jurisprudence of newly emerged issues. Finally, we discuss the method of solving problems in the jurisprudence of art namely the two-sided interpretation of the Quran and Hadith, extracting the basic title of the subject, and consequentialism or nominalism.

Breathing the divine spirit into fetus is a subject to which many injunctions of the law are allocated. Some of the injunctions have both monetary and penal aspects. According to the Article 716 of IPC, blood money for abortion depends on breathing the divine spirit into fetus. Also, according to the Article 720 of IPC, the calculation of blood money for the organs of fetus or the injuries sustained by fetus depends on breathing the divine spirit into fetus. The Islamic jurists do not allow abortion after breathing the divine spirit into fetus; therefore, it is important to determine the exact time of breathing of the divine spirit into fetus based on Islamic jurisprudential sources. The stages of development of fetus have been described in the verses of the Suras Al-Mu'minun and Al-Hajj. The Islamic traditions also provide some information about the time of breathing of the divine spirit into fetus. According to the words ascribed to the famous jurists of two Islamic sects, the divine spirit is breathed into fetus at the fourth month of pregnancy. However, according to the theory of the present article, for determination of the time of breathing of the divine spirit into fetus, one cannot trust on the reports of the embryologists for two reasons. On the view of the legal proofs, the divine spirit is breathed into fetus at the fifth month of pregnancy which is consistent with the language of the verses and Islamic traditions

For discovering the decrees of Shariah, one must exploit the quadruple sources. Meanwhile, the contemporary world has created novel problems which are not easily regarded as instances of the old rules. Thus, one must pay attention to the capacities of Islamic jurisprudence (Fiqh) in order to reach an efficient discovery. Some of these capacities are the intellect and general and rule-making Quranic and narrative texts. Among the perceived quasi-sources, there are some capacities which will flourish leaning on the sources of deduction, two examples of which are the common sense and expediency. There are some texts which enjoy an interpretative capacity for the Shariah’s novel texts. The flourishing of these hidden forces, alongside adopting a quasi-system attitude toward Shariah, makes the science of jurisprudence respondent to the contemporary world problems, without breaching of the Ijtihad principles being necessary.

According to the Quranic verses, the world has been dominated by human being. This domination necessitates that the human is allowed to modify and change the world in order to take benefit of it. But, on the other hand, changing of the creation has been introduced as a satanic project in order to deviate human beings. The present research deals with the question that what are the limits of lawful modification of the world according the lawfulness of domination and unlawfulness of changing the creation of the world? Is it possible to reach a jurisprudential criterion and to separate these two matters? There are totally the following four views in the given verse, namely: 1- implication of the verse on the absolute unlawfulness of changing the creation; 2- implication of the verse on unlawfulness of changing the divine religion; 3- implication of the verse on reprehension of changing the inside of the human; 4- implication of the verse on the unlawfulness of modification inconsistent with the purpose of the creation of the phenomena. The fourth view seems to be a correct thought which forbids human from entering the limits of divine creation and making against it and distinguishes between the limits of domination and modification. Meanwhile, it is void of other inaccurate thoughts. Of course, the existence of a few doubtful examples - as it is considered a usual matter in all of the rules - should not be taken as an excuse to reject it.