جستجوی مقالات مرتبط با کلیدواژه "abrogation" در نشریات گروه "فقه و حقوق"

One of the issues of law revision is related to distinguishing abrogation) especially implied abrogation) from allocation. The present study seeks to answer the following question: how is implied abrogation distinguished from allocation? The findings of this descriptive and analytical research show that there are eight criteria for distinguishing implied abrogation from allocation:In choosing between implied abrogation and allocation, allocation has priority over abrogation.If a new reason arrives before acting for the first reason, this case will be allocation and if it arrives after the action, it will be abrogation.Abrogation removes the sentence but allocation limits it to some people of the subject.The abrogator is always separated from the abrogated and if they are connected, it will be a general and specific example, not an abrogator and abrogated.Abrogation removes the time continuity of the sentence, but allocation changes the legislator's usual intention to his serious intention.Although allocating the law with rational and customary reasons is possible, but abrogation is possible only by the authority that established it.The present study made a difference between the allocation of most common cases and the allocation of all common cases, and accepted that abrogation in the allocation of all common cases, but rejected the abrogation in the case of the most common cases.In this research, it was proved that if the reason for general issuance is certain and the reason for special issuance is suspicious, priority is by allocation.

The concept of governance, as a western-driven normative concept, needs to be recreated in the Islamic discourse. In religious literature, governance can be considered as a path towards good governance. Since changes in a society in the process of governance call for changes of the implemented rulings, it is possible to identify the conditions by referring to religious sources and apply them in the Islamic Republic system to make the governance a wiser process. On the other hand, by referring to the discussion of Naskh (abrogation) in Quranic sciences, useful propositions can be found to achieve this goal. The basis of conditional Naskh, which expresses the change of rulings following a change in conditions and the strengthening of abrogated rulings (in a general sense) if the conditions for the implementation of that ruling are met, is particularly compatible with this goal. In this study, via the library method and with focus on the interpretation of Surah At-Tawbah by Ayatollah Khamenei, the abrogator and abrogated verses have been examined and by extracting three chains of verses and examining the context of the verses and their revelation circumstances, some principles of governance have been singled out. These principles address issues such as policy-making and regulating ties between Muslims and enemies at different junctures as well as the conditions for the realization of final Bara'at from Mushriks..

Imam Mohammad Ghazali, who is one of the prominent figures of the Shafi‘i school, despite maintaining his adherence to the principles of the Shafi‘i School, disagrees with the head of his school on some fundamental issues. The most important of these are as follows: While Imam Shafi‘i considers the opposite concept as proof, Ghazali believes that it is not a proof and in fact, he believes that it does not make sense. On the subject of abrogation, Ghazali, like most Usulis, believes that it is possible for Qur’an to be abrogated by frequent Sunnah and Sunnah can be abrogated by the Qur'an as well, but Imam Shafi‘i believes that the Qur’an is abrogated by the Qur'an and Sunnah by the Sunnah. Another difference is in the proof of the words of the Companions, thus, according to the old saying of Imam Shafi‘i, the word of the Companions is a proof. Ghazali, on the other hand, does not consider the words of the Companions as a proof. Evaluating their ideas and arguments shows that in the above subjects, the preferred opinion is to consider the opposite concept as proof, the permission of abrogation of the Qur’an with Sunnah and the Sunnah with Qur'an, and the non-proof of the words of the Companions. There are jurisprudential works for each of these fundamental disagreements, which reflected in the views of Imam Shafi‘i and Imam Ghazali.

Although there was a consensus on the permission of temporary marriage the beginning of Islam, Sunni jurisprudence, believing the prohibition of it by the Qur'an, the Prophet and the emphasis of the second caliph on it, is considered an illegitimate marriage. However, since the issuance of this sanction by the Qur'an and the Holy Prophet is doubtful, but the very issuance of the sanction by the second caliph is certain and agreed upon by the two sects, order to examine the principles of the sanction and contrary to Sunni scholars, expediency is very reliable and the sanctions imposed will not be valid for any time and place. Thus, the theory of absolute boycott of intermittent marriage will be incorrect. Imami jurisprudence, the analysis of this marriage is based on the definite precedent of its ablution, the validity of the sanctity of the sanction, and finally the advice of the Imams to perform it, and thus the removal of doubt in the sanction and the certainty of its immorality. However, contrary to the ruling attributed to Imami jurisprudence, is absolutely absurd, but it does not have this ruling in terms of examining the basics, and according to the requirements of time and place, includes five rules. Thus, terms of analysis and research in basics, and contrary to popular belief, seems that the two parties have a common denominator the absence of absolute sanctions and the absolute absence of this type of marriage. this research, the research method is analytical and descriptive

The current research is to validate the preference of tradition based on ahdathiyat. Posteriority of the issuance of a narration to another, as it is called ahdathiyat, is an issue that has been focused on by some jurisprudents and osūli scholars regarding the contradiction of traditions. Some scholars contend that such a matter is categorized under the issue of devoted preferences of the hadith whose argument relies on the five traditions, although the majority of osūli scholars have criticized such a basis and do not confirm its indication. Among such scholars, some believe in the intellectual basis for preference while on the contrary, most of such scholars have absolutely denied and rejected its being preferable. The research method is descriptive-analytical with a critical approach. Having mentioned the tentative countenances of the effect of these traditions and classifying the contradictions into document-related, implication-related, and cases-related, the researchers have classified the implication-related one to specific (textual concept) and general (common concept). Thus, some of the contradictions are resolved and some of the countenances of indication are supported, while due to some of the in-text and out-text indications and evidences and due to the infeasibility of resolving some contradictions, the effect of these traditions is in contradiction with the preference of ahdath toreach the true ruling regarding the issue of contradiction.

By repealing a law it ceases to be valid and its life terminates. Abrogation is the usual way to suppress the domination of law. Hence, legislation or rogation is the normal form of making law. Therefore, repealing and enacting law are subject to the same rules.In traditional approach, abrogation has two forms: explicit and implicit. This article attempts to amend this theory. Abrogation is only explicit and it occurs when legislator specifies the repealed law. Also legislator can exclusively repeal law so that he can enact. Moreover, statutes or enacted laws may be specifically repealed. But when judge cannot reconcile two conflicting laws, his main task is to override one of them. Regarding the purport of laws and arguing in persuasive manner are the exclusive way to proclaim tacit abrogation or predomination of it. Indeed judge has no authority to rescind law. Therefore, implicit repealing is a matter of construction and metaphorical expression.

Explanation of the divine book is a great responsibility of the Sunna to the Quran. But there are many controversies about the allocation of book to the Sunna. All religious scholars in particular and the people in general agree on the allocation of book to the definite Sunna, but there are different views on allocation of book to a tradition with a single transmitter. Since in the view of some scholars a particular reason is the indicator and interpreter of the general ones, they consider giving the intention in two stages of speech in the form of two general and particular propositions as a completely customary and acceptable matter. While others do not consider it reasonable and believe that there is no reason to generalize evidences of authenticity of a single tradition to a single tradition given for definite evidence. The present research aims to study in detail the arguments for these two main views.

The statutes of three major subsidiary companies of petroleum ministry (National Oil, Gas and Petrochemical companies) were ratified by then parliament or its commissions in 1977. Nevertheless since 2004, considering that the companies’ statutes has not been approved by Islamic assembly(Majlis), the validity of the aforementioned statutes and consequently their very existence was questioned by the Guardian Council and therefore any legislation of the Majlis that points to the title of mentioned companies, were questioned by the Guardian Council. So this question is arisen that whether they are valid. This paper is trying to find an answer by using analytical method. Since the main reasons which are provided for the invalidity of the mentioned statutes are not acceptable, and there is no justified reason to consider them null and void, so those statutes are still valid, unless later laws and regulations abrogate them or contain contrary rules to the contents of the statutes.

The bride possesses the right as to the dowry as soon as terms of marriage are uttered and is allowed to use it in any way she wishes، including denoting it altogether to the bridegroom and discharge him of his obligations in this connection. On the other hand، divorce before intercourse is considered an independent factor in transferring half of the dowry to the bridegroom based on which، according to the opinion of majority of jurists، bride must pay something equivalent to half of the dowry to the bridegroom. Analyzing opinions and surveying their proofs، the present essay comes to the conclusion that divorce before intercourse only causes removal of entitlement of the bride as to half of the dowry. Also، bride’s denoting the dowry is not absolute، but rather is dependent upon the implied term of continuity of marriage; hence، when the bridegroom violates that and divorces the bride، his discharge of payment of the dowry or ownership of it becomes obviated، or، at least، the bride will have the right to abrogate that denotation so that she still may have entitlement of half of the dowry in case of divorce before intercourse and that of all of the dowry in case of divorce after intercourse.