reza poorsedghi

From the second century of Hijri, some jurists like Shafi'i used the inherent dignity of human beings in the science of jurisprudence. In this era, research has been done in this field. Sometimes, despite the difference in the role of dignity in jurisprudential reasoning, the difference in the method of reasoning was not considered. Criticism and scientific judgment in rejecting and accepting the role of human dignity in the principles of jurisprudence and reasoning process depends on knowing the positions of dignity and using the appropriate method for that position. Therefore, this article aims to explain the fields of dignity in the principles of jurisprudence and the reasoning of rulings and clarify their differences in the method of reasoning. The importance of this research is due to its great connection with the derivation of jurisprudence rulings in new issues and its necessity due to the existence of doubts and positions related to dignity and mixing in different places, which causes incorrect handling of the rulings. This article has been prepared by descriptive analytical study method and by collecting relevant data from jurisprudential sources in library method and using ijtihad method and jurisprudential reasoning based on jurisprudence and principles of jurisprudence. The innovation of this article is the explanation and analysis of the different areas of the role of human dignity in the foundations of jurisprudence and deriving rulings and expressing the differences and the way of dealing with each of them in Islamic jurisprudence.

Istiṣḥāb (presumption of continuity) is widely used and relied upon throughout jurisprudence, and many cases of doubt and ambiguity are resolved through this practical principle. The expansion of jurisprudential issues necessitates further examination of this principle in its application to new issues. The importance of some newly emerged issues on the one hand and the existing arguments for Istiṣḥāb on the other hand have made the application of this principle to some newly emerged issues - especially social and political jurisprudential issues – doubtful and questionable. One of these issues is the qualifications of government officials, which, due to their public impact on society, are of considerable importance. Therefore, the question arises: Can the qualifications of Islamic government officials - which are cases of Istiṣḥāb of the subject in political jurisprudence - be ascertained by relying on the principle of Istiṣḥāb? The present research, using a library-based method and a critical-analytical approach, has evaluated this issue. Examining the available data from the arguments for the validity and credibility of Istiṣḥāb shows that since the cases of Istiṣḥāb arguments are individual jurisprudential issues such as purity, and eliminating the specificity of individual issues due to the possibility of specificity is not possible, the application of Istiṣḥāb in public and governmental affairs faces serious problems. Therefore, the application of Istiṣḥāb to ascertain the qualifications of Islamic government officials is a matter of serious doubt.

 Brain as the most vital organ with specific and shared benefits regulate all body activities. Brain damage often leads to loss of a part of specific benefits and, accordingly, shared benefits. For instance, a head trauma can cause a coma, and as a result, other organs such as hands and feet also lose their benefits. So this question is raised whether blood money and Arsh only apply to the loss of consciousness or also to the loss of benefits of hands and feet? This issue has not been investigated by jurists, despite it is one of the most common cases in crimes and accidents. The current study aimed to explore blood money and Arsh for the consequent loss of benefits.

 This analytical-descriptive research is somewhat critical in the evidence review section. The main sources are jurisprudential books and articles, and medical sources are also used in thematic.

 There are two approaches about blood money and Arsh for the consequent loss of benefits: Some, based on the evidence of bold money and Arsh for the current benefits of organs, believe in that any loss of benefit in an organ deserves blood money and Arsh. On the other hand, some argue that only the loss of essential benefit is the basis of blood money and Arsh evidence. According to this view, the loss of benefit is entitled to blood money and Arsh only if the injury affects the organ itself, but not if a healthy organ loses its benefit due to an external factor. A review of the evidence indicates that this view is more stable.

Fracture of the nasal bone is one of the most common cases of fracture stated in jurisprudence books. It seems that the nose is absolutely considered as a single bone in jurisprudence books and the cost of its fracture is determined according to this concept. This is despite the fact that the child's nasal bone is not completely connected and is considered as a group of multiple bones from the medical and customary point of view.The present article employs a critical-analytical method to analyze whether it is considered one fracture or two fractures if a fracture similar to an adult's fracture happens to a child's nose and leads to the breaking of two bones close to each other. A lack of related tradition in the issue of nasal bone fracture has complicated the investigation of this issueThe research shows that among the evidences presented for the equality of nasal bone fractures in children and adults, there is enough evidence to prove equality. The most important reason that can be provided for the equality of the Dīyih is referring to the application of similar traditions in other bones of the child, which have a similar situation. The application of the words of the jurists in expressing the ruling on the issue of Dīyih for fracture also supports such a conclusion.

In the past, humans used animals for transportation, however, in narrative sources, women riding the saddle is condemned. Considering that nowadays cycling and motorcycling have become popular among women and no independent research has been written in order to explain the jurisprudential foundations of this issue, it is necessary to examine the meaning of the aforementioned traditions and the possibility of generalizing it to cycling and motorcycling. In this article, which was done with the descriptive-analytical method and using library data, it was concluded from the point of view of jurisprudence that the first sentence of women's riding is abhorrent, but due to the lack of unification of the subject, it cannot be generalized to cycling and motorcycling. From the legal point of view, it was also concluded that there is no special law in the Islamic Republic that prohibits women from riding, and only because of the lack of certification for women riding motorcycles, and in certain cases where their riding bikes and motorcycles are considered to be against public modesty, these acts are crimes. It is considered and it cannot be absolutely considered against the law.

With the advancement of medical science, especially the production of some new drugs from dead body organs, the jurisprudential ruling of making medicine from the remaining donated and unused body organs for medical purposes, both necessary and unnecessary, is ambiguous. Understanding the necessity of the treatment issue, especially in the state of embargo and the lack of advanced products in the field of treatment, as well as Iran's need to discover and produce new drugs, made the authors make an effort to analyze the issue. The present article has evaluated the problem with an analytical-critical approach of library resources. In this regard, there are two theories in the medicinal use of the remaining organs of the Muslim dead body. The major obstacle for permissibility of using these organs is most jurists' viewpoint on the necessity of burying the amputated organs of the dead body, which has made this issue a challenge. By examining the arguments of different aspects of the problem, the present research considers the arguments of the impermissibility of using these organs to be insufficient, and finally, referring to the principle of exemption, it considers the manufacture of medicine from these organs to be harmless.

The temporary elimination of the benefit of the organ due to incurred crime have been put under the topic of Arsh in Islamic Penal Code while no proper jurisprudential study has been undertaken in this case; what is more, the presence of some beliefs such as no liability for non-used benefits paves the way for some prevailing suggestions that there are no liabilities under the topic of Arsh and the blood money for the temporary decline of benefits in religion. This gets more intense in cases which the organ has no evident injury or harm and fracture but the benefits are eliminated in temporary terms. By a full grasp of the necessity of this discussion, this study investigates the issue by referring to library documents by an analytic-critical method. Our study shows that the presence of the right to use body organ is a good reason for the presence of liability of Arsh in cases of temporary decline of organ benefits on the criminal because the subject of liability is the loss of property and right of the others, and on our assumption, the right of using organ benefit has been eliminated; however, the lack of financiality before the act or the before the renting contract is a hinder to the use of liability principle in this assumption; also, due to the impossibility of jurisprudential comparison between the Arsh for permanent decline of benefit with temporary decline of benefits because of the lack of unity of procedure as well as the emergence of the blood money and Arsh for the blood money of harms incurred to organ, and finally, considering the religiosity of blood money and Arsh and the principle of non-liability, it is overwhelmingly challenging to prove the Arsh.

The study of the relationship between speech and meaning has a serious impacton the finding of the manifestation and analysis of the coining of the word. One ofthe controversial issues in this regard is that verbal signification is a factor of thespeaker’s will. For instance, if the speakers utters a word in sleep, does it connoteto its meaning, or, just by hearing a word, although there is no will to make thelistener understand its meaning, signification is formed? Avicenna (Abu Ali Sina)argues that signification is a factor of the will that has been criticized by scholars.There are two claims to prove his argument. First, coining for a speech that isnot meant by the speaker is invalid. Hence the coiner has coined the word onlyfor the meaning of what he intends. Second, will is effective in the significationof the truth. Hence, without will, signification does not hold true. However, boththe arguments have been questioned by some scholars. The present study is anattempt to explain and critically study the main controversy with emphasis onthe nature of signification and its commitment to knowledge based on ImamKhomeini’s viewpoint about signification. The findings of the study show thatAvicenna’s argument is valid.

The issue of "validation of the fear of difficulty as a way of difficulty as being Shar'ei (religiously legal)" is one of the issues that have resulted in important jurisprudential works. However, there is no detailed discussion about it in jurisprudential sources. One of the cases where this question is fundamentally raised today is the permissibility of abortion under the premise of fear of difficulty. The question that this paper tries to answer is whether the fear of difficulty is the fulfillment of the duty, and therefore abortion is permissible, or the flow of the rule necessarily requires the actual realization of difficulty and abortion is not permissible. The research method is analytical-critical and from library sources. The existing study shows that there are two views on the issue, and the supporters of each have various reliable reasons to prove their point of view. However, after examining and adjusting, for them, the reasons are that in the assumption of fear of difficulty, despite narrative and confirmative arguments for validity of the rule of difficulty in the assumption of fear, there are no reasons for its invalidity. Due to the existence of the principle of caution in the blood after the birth of the soul, there is no possibility of abortion in the assumption of fear of difficulty caused by the abnormality of the fetus, and caution should be taken but before the soul is released, despite the fear of the realization of difficulty, the rule of current difficulty and medical abortion is permissible.

Throughout history, making a pilgrimage to the shrines of Ahl al-Bayt (AS) has been one of the most important issues for Muslims, especially for the Imamiyyah ones. Here, the relevant issues are of great importance as well. One of them is the ghusl for pilgrimage, the legitimacy of which has always been questioned. For some jurists, one of the reasons for proving the legitimacy of the ghusl for pilgrimage is its difference from ablution. Due to the different views of jurists about the legitimacy of the ghusl for pilgrimage and lack of confirmation of its legitimacy by well-known contemporary jurists, this analytical-ijtihad-based article discusses the issue by referring to library sources. Placing the narration of al-Jāmiʿa al-Kabīra among the proofs of the legitimacy of the ghusl for pilgrimage, and based on some narrations and legislators’ views, this study found the ghusl for pilgrimage legitimate.

In many cases, there is no quantitative diya (compensation paid to the heirs of a killed person or to somebody who is injured) for injuries to the body organs, and compensation must be determined by the courts. Today, the methods proposed by jurists to determine the arsh (compensation specified for offences relating to various kinds of hurt or injuries) are associated with failure. Methods such as enslavement and obtaining the difference between the price of a defective slave and a non-defective slave, to determine the arsh, which in addition to the impossibility of execution has other drawbacks. The Penal Code also includes cases in determining the arsh that cannot be proven according to religious evidence. It remains to be seen whether there is an applicable method for determining Arsh among jurisprudential sources. This current paper intends to present the jurisprudential criterion for determining the arsh through examining the available sources. The study of the mentioned sources indicates that in the existing narratives, the determination of arsh from the amount of diya has been left to the wise. Since the method of calculation is not considered by the Shari'a, in order to realize the rights of the victim, the ruler, with the help of two trusted experts, must calculate the crime from the amount of the organ's diya in the most accurate way that the rights of the victim can be exercised. Of course, with the advancement of science, more precise ways to determine the arsh may be found, which is closer to the principle of justice and fairness, in which case such a method should be the criterion for determining the arsh. The calculation is based on the quantitative diya of the organ and the level of injury in terms of length, width and depth of injury, or the amount of crime in terms of the organ disability, emphasizing that the other sides of crime such as the amount of recovery time and its effect on health are not considered in the amount of the arsh. As a result, the criterion for determining the arsh is the characteristics of the crime and the injury and the quantitative diya of the organ.

One method of gene therapy for fetal abnormalities is to receive mitochondria donated from a third ovule, through pre-nucleus or ovule transfer method, that arises important issues from the jurisprudential point of view, such as maternal lineage of the child born in this way. Therefore, this article, in an analytical and inferential manner and referring to jurisprudential library sources, examines the maternal lineage of the infant born through genetic manipulation. The research shows that although in the pre-Islamic Arabia and early days of Islam the woman's pregnancy and giving birth to the child was the criterion of motherhood as they were unaware of the existence of the ovule and its development at all, the emphasis of nowadays custom on the importance of the ovule and its nucleus in human production explains the customary associations of the age of revelation; especially regarding the fact that from a lexical and customary point of view, the word "Umm" means the essence of anything and its origin, and therefore, the owner of the ovule nucleus is considered as the legal mother of the laboratory baby and the lineage is fixed for her; because the emergence of the embryo is the outcome of the combination of ovule nucleus chromosomes with the male's sperm.

Existence or non-existence of permission in contracts and unilateral obligations and all kinds of legal actions and behaviors; consequently, humans' customary and social relations is one of the most important and vital elements in human life. For instance, regarding the issue of security which has been focused on in different issues, the role and influence of permission has been noticed. The issue of correlation of permission and permissibility with non-security is not a new issue and has been discussed by some contemporary and many ancient jurisprudents. Not only have they supported the correlation of these two rules, but also it is implied that they have regarded such rules correlations as necessary and incontrovertible. However, in the contemporary period, the opposing theory has been more supported as it may seem to be incontrovertible. Having analyzed the drawbacks raised by critics of this rule, it is concluded that given such a correlation is raised generally in cases where permission is necessary, it is not true. But, in cases where there are obligatory permissibility toward the action as primary and it is not subjected to security, and in other hand, no one in this middle has faults or is blameworthy, such a correlation is proved and claimed.

The term "Vali"(guardian) has received so much attention in jurisprudential resources. This term has many usages. In many cases, jurists disagree about the purpose of this term specially the medical liability. The question is who should give the permission of treatment to the health centers and physicians that if the patient is killed or injured due to the treatment, so that no responsibility is included for the curer. In this regard, there are different viewpoints among jurists: Some of them consider the permission of religious guardian, some of them the permission of heirs, and some of the other jurists see the permission of conventional guardians as a condition. Among the existing viewpoints on this issue, the viewpoint of religious guardian is more popular. However, through examining the uses of the term "guardian" in Islamic jurisprudence and the existing evidence for the necessity of adopting the Acquittal to exempt the physician's liability, it is concluded that guardian means the conventional guardian. Therefore, any legal and natural person that is the guardian of the patient can be the guardian of the permission. Consequently, when the patient is exempted from the permission and there is no obstacles for that, the patient himself will be the guardian of the treatment; otherwise, the guardian of the patient will be the guardian of the treatment.

There are some rules and traditions in Islamic law inducing which it is not unlikely that a general rule could be derived under the title of "proportionality of benefits and guarantee". If such a rule is accepted, wherever a guarantee is proved, a proportionate benefit must also be deducted, and also in any case where a benefit is proved for a person, a guarantee must also be deducted.This paper examines the issue in a critical analytical method using library documents. Examination of the evidence in this regard shows that there are some rules that justify and approve the necessity of establishing such a rule, as its origins. According to the evidence, the proportionality rule itself is accredited by Islamic law, as a result, any obligation disregarding the feature mentioned above is legally rejected unless a specific reason permits it, and in cases where the guarantee or benefit is proved, the designation of the instance of benefit and equivalent guarantee requires a legal or rational justification.

The possibility of the omission of property has long been among the significant issues in the field of jurisprudence and law. The discussion on this topic has been addressed in jurisprudence books under the issue of "disclaim". This is a subject which has not been independently addressed in jurisprudence books. This has an important position in the teachings of the scope of transactions, though in the past the lack of omission without reference to defined and determined legal principles was taken for granted. In the recent period, some most famous jurists have inclined to the permission of omission of the property and emphasized the possibility of omission by the owner's will. The present study first discusses express the prominent opinions on the subject and then confirms the contemporary theory with complementation and new reading by analyzing the arguments of both parties.

Although abortion is regarded as an evil and indecent act according to the holy shariah and the human societies, but in cases of contradiction between a mother`s health and her fetus`s life, based on lots of the jurisprudents` opinion, the mother is authorized to prefer her health. In spite of permission for an destruction of fetus, civil liability of remedial abortion is a problematic question. In this regard, following some great scholars` outlooks, the lawmaker has issued an opinion of extinction of liability.
Reviewing the absoluteness of the traditions in connection with the liability of diya for abortion is considered as one of most sensitive and difficult points of this subject. The method of taking absoluteness, accepting and refusing absoluteness of ahval (states) in these traditions is one of the prominent effective discussions in implication of these evidence. With analyzing appearance of the evidence, an enough assurance regarding taking absoluteness from these traditions will not be acquired. Though lack of their implication is not reliable, but lack of appearance is enough for disproving it. The only evidence is the practical principles of istishāb and barā`ah which determines the first principle in diyat and liabilities (blood moneys and zimānāt). This principle can be a proof of non- responsibility for remedial abortion.