فهرست مطالب sayyed abolghasem naghibi

The family is the oldest social institution known to mankind, nevertheless, the analysis of its nature is one of the complex and controversial issues among jurists, and it is disputed in the law of different countries. This research aims to explain the family with the focus on texts and sources of jurisprudence and law of Iran and examine the family as an independent entity. The research method is analytical-descriptive and data collection was done through library resources and it has a practical dimension as well in the field of law reform. The research findings indicate that Iranian jurisprudence does not recognize the independent legal personhood of the family, but it has considered it an independent nature and separate from its members. In other words, the family is an independent institution, therefore, it is said that the totality of the family is not equal to the sum of its parts, but this network is the continuous influence of the relations of the members, which add to the complexity of family identification. The result of this new approach is that the family has laws separate from the laws of its members, and some of them include: the right to privacy, the right to spiritual dignity, the right to support formation, consolidation and excellence, the obligation to preserve the family etc.

Exploring the nature of the types of legal precepts (ḥukm al-sharʿī) is ‎one of the most important issues in Uṣūl al-Fiqh (the Principles of Jurisprudence) which is ‎currently of special interest to Uṣūlī scholars. Exploring the nature of ‎ʿazīmah (obligation) and rukhṣah (concession) is one of the issues that is discussed under the ‎nature of legal precepts. A variety of opinions have long been ‎expressed about the nature of ʿazīmah and rukhṣah by Shīʿī and ‎Sunnī Uṣūlī scholars. In the present article, after referring to the written sources, the views expressed in this regard have been described and after analyzing the views and criticizing and examining the arguments, it has been concluded that ʿazīmah and rukhṣah are secondary obligatory rulings. Thus they are included among the famous obligatory precepts.

Philosophy of jurisprudence is a branch of additional philosophy in which jurisprudence as the science of legal laws is analyzed and described via detailed reasoning from an outer viewpoint and with an approach of second-degree knowledge. Theoretical analysis of jurisprudence as a science that has come true through the culture, history and civilization of Islam leads to a general theory about it. The general theory in the field of jurisprudence, regardless of the sect, subject and specific era, is called philosophy of jurisprudence. The quiddity of jurisprudent is explained and jurisprudential propositions are described in the philosophy of jurisprudence. The efficiency of the logic of jurisprudence is assessed from the methodological viewpoint that leads to the base of jurisprudence. The validity of the sources and reasons containing the legal law are also assessed. The relation and connection between jurisprudence and other sciences are presented and the way a jurist, in producing jurisprudential teachings, gets influenced by human and experimental sciences gets explained. Each of the abovementioned topics and other ones contains an important problem in the field of philosophy of jurisprudence. Debating the problems of philosophy of jurisprudence leads to a general and comprehensive view on jurisprudence in a way that affects the intra-jurisprudential studies of the jurist.

Lost profit damage refers to the damage due to losing the profit because of the actions of an infringer or the profit that the obligee would have been received if the obligor had fulfilled his obligation; no matter whether the profit is generated from a specific property or person, or is received merely because of fulfilling the obligation. Imamiya jurists have a difference of opinion over compensating lost profit damage. Some jurists do not believe in compensation for lost profit damages presenting the reasons that lost profit is not subsumed under the rubric of damage, potential profits have no financial value, such profits do not exist in practice, and the lack of causality. On the other side, the proponents of compensation for lost profit damage resort to the principle of lā-ḍarar (denial of injury or malicious damage), the principle of itlāf and tasbīb (causing direct or indirect damage or loss), the financial value of profits, and intellectuals’ stipulation. Scrutinizing the reasons presented by the proponents and the opponents shows that only some cases of lost profits are subjected to compensation by the proponents, while the opponents reject the compensation for lost profits in some other cases. Therefore, the paper concludes that certain lost profit damage is compensable and contingent lost profit damage is not compensable. Certain lost profit damage refers to the cases in which the disruptive action’s role as the exclusive cause of damage is confirmed, while such role is not demonstrated in contingent lost profit damage.

Responsibility and liability has been created in jurisprudence in respect of private ownership and individual’s property. If anyone breaks the respect of his life and property, liability also is nullified. Rule of emprise in jurisprudence is an evidence of this issue. This rule is similar to the assumption of risk in English law. It means that whenever a person, with knowledge of risk, puts himself in dangerous situation, and this causes damage to him, he has no right for compensation. It is therefore necessary that these two rules be carefully examined and conditions, scope and manifestations of them be clarified, as well as their similarities and differences.

On the base of the provision of the judicial rule "The governor is legal guardian for refuse" if somebody refuses to respect peoples right, judge after obtaining the refusal, in order to prevent chaos and to preserve public regular and also to perform social justice, directly takes action.The refusal will be obtained during trail procedure. So, this rule is a 'judicial rule. One of the results of performing rule by governor is family actions.Important cases of performing this rule in family actions are:Husband’s refusal of paying the maintenance in spite of his ability.Husband’s refusal of divorcing wife in spite of disability of paying the cost of maintenance.In long and sudden absence of missing person, his legal guardians refuse to divorce his wife.Husband, refusal of divorce or withdrawal in illa and zihar.Husband or wife, schoicing arbitrator in case of fearing separation.Husband’s refusal of forgiving the remaining time in temporary marriage.In these cases Judex can accomplish legal and religious duty of refuse owing to his jurisdiction. Legislator, in some articles of civil code for instance in article1129, recognized this rule to be enforced in the present law of country.The rule of "The Judex is legal guardian for refuse" has accepted the governor interference in relation private relations. Due to this rule, if somebody doesn’t care about others rights, the governor of the Islamic society, with regard to jurisdiction is allowed to do his duties. Normal 0 false false false EN-US X-NONE AR-SA.

Formation of legal act, its constitutional elements, and damageswhich may hurt the will in its various elements of formation areamong major juristic, legal subjects one of which beingcontradiction of exoteric will to esoteric will in making a legal actwith respect to sovereignty – that is, which of them enjoyssovereignty over the other? There is a dispute among jurists andIslamic lawyers in that connection on the basis of different proofsfor and against any of those two theories. While investigatingproofs of each theory, the present essay emphasizes modification ofboth theories and declares that in cases of ignorance the exotericwill and in cases relating directly to the economical order theesoteric will should be given priority.