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

Introduction:

Language serves as a fundamental cornerstone of human civilization, distinguishing humans from other species through its sophisticated capacity for expression, communication, and thought. This inherent capability not only facilitates interpersonal communication but also underpins the complex processes of human reasoning and conceptualization. The intricate relationship between language and thought is a subject of considerable interest across various disciplines, including linguistics, philosophy, and jurisprudence. Within the realm of legal scholarship, particularly in the context of Principles of Islamic jurisprudence (Uṣūl al-Fiqh) and its influence on the Iranian legal system, the exploration of the nature of the relationship between expression and meaning acquires a nuanced significance. This study aims to delve into the theoretical underpinnings of the "intrinsic" and "essence" views on the relationship between expression and meaning, assessing their implications for the legal domain, with a special focus on Shia jurisprudence and its impact on contract law in Iran. By examining the intrinsic nature of language and its role in the legal system, this research seeks to uncover the philosophical and jurisprudential dimensions that underlie legal interpretation and application.

 Research Question: 

The central inquiry of this study revolves around the nature of the relationship between expression and meaning in the context of language and its implications for legal theory and practice. Specifically, the research question seeks to understand how the intrinsic and conventional theories of language affect the interpretation and formulation of legal principles, particularly in Principles of Islamic jurisprudence (Uṣūl al-Fiqh) and the Iranian legal system. This investigation is driven by a desire to elucidate the extent to which the intrinsic nature of language influences legal reasoning and contract formation, examining both the theoretical foundations and practical outcomes of this relationship in a legal context.

Research Hypothesis :

The hypothesis posits that embracing an intrinsic view of the relationship between expression and meaning can lead to significant insights and advancements in legal theory and practice. This perspective, which acknowledges a direct and inherent connection between words and their meanings, could offer a more nuanced and effective framework for legal interpretation and the formulation of contracts. By rejecting the intermediary of conventional meanings, the intrinsic theory may allow for a deeper understanding of legal texts and the intentions behind them, potentially enhancing the precision and fairness of legal outcomes. This study hypothesizes that, despite historical criticisms and the limited adoption of the intrinsic theory among Shia jurists and Western thinkers, its implications for jurisprudence and the legal system in Iran are profound and warrant comprehensive exploration.

 Methodology & Framework, if Applicable :

This research adopts a descriptive-analytical methodology, leveraging both primary and secondary sources to explore the intrinsic and conventional theories of language within the domains of jurisprudence, legal theory, and philosophy of language. The study is interdisciplinary in nature, drawing upon insights from Islamic scholarship, Western philosophy, and semantics to construct a holistic view of the issues at hand. Through detailed textual analysis and critical examination of key texts in Shia jurisprudence, as well as works by Western philosophers and linguists, the research aims to elucidate the underlying principles and implications of the intrinsic theory of language for legal practice.The theoretical framework is grounded in the principles of hermeneutics and interpretation, providing a lens through which the relationship between expression and meaning can be examined in depth. This approach enables a comprehensive analysis of the intrinsic and conventional theories, highlighting their strengths, limitations, and relevance to the contemporary legal landscape. By integrating perspectives from a variety of disciplines, the study seeks to uncover the multifaceted nature of language and its impact on the formulation and understanding of legal principles.

 Results & Discussion :

The exploration of the "Intrinsic Nature of the Relationship Between Expression and Meaning" within the context of language's role in Principles of Islamic jurisprudence (Uṣūl al-Fiqh) and legal interpretation yields both enlightening perspectives and significant challenges. The theory posits that language, in its most fundamental form, has an inherent connection between expressions and their meanings, which has implications for understanding the origins of human language and the legal importance of verbal formalities in transactions, particularly in Iranian jurisprudence. This intrinsic connection suggests a natural, direct comprehension of language that transcends learned conventions.However, the theory faces substantial criticisms that challenge its universality and applicability. A core critique lies in the observable fact that individuals do not innately understand languages unfamiliar to them, nor do they always grasp the full spectrum of meanings in their mother tongue. This contradicts the theory's implication that the relationship between expression and meaning should be immediately apparent to all. Additionally, the process of naming and the application of new concepts further contest the theory's validity. The conventional nature of language development, especially in the creation of new words and meanings, indicates a learned rather than an intrinsic understanding.These criticisms reflect broader debates within linguistics and philosophy, notably regarding Chomsky's theories. The challenges to the intrinsic theory highlight the complex interplay between nature and convention in language acquisition and understanding. In the legal domain, the theory's limitations become particularly evident in the context of modern legal concepts and terminologies, which are often culturally and temporally specific. The intrinsic theory struggles to account for the evolution and diversity of legal language, underscoring the predominance of conventionalism in the development and interpretation of legal terms.

 Conclusion:

Upon thorough examination, the intrinsic theory, while offering valuable insights into the nature of language and its origins, ultimately falls short in addressing the complexities of language understanding and legal interpretation. The empirical challenges and philosophical criticisms against the theory underscore its limitations in fully accounting for the dynamic and evolving nature of language and legal discourse. The concept of Divine Conventionalism emerges as a more viable alternative within Principles of Islamic jurisprudence (Uṣūl al-Fiqh), positing that language's establishment and development are divinely ordained yet executed through human agency. This view harmonizes the divine aspect of language's origin with the practical realities of its human-driven evolution, offering a framework that accommodates both the sanctity and the variability of linguistic expression and meaning. The study's findings suggest a reevaluation of the intrinsic theory's premises and encourage a more nuanced understanding of language's role in legal theory and practice. While the intrinsic connection between expression and meaning presents a compelling philosophical idea, the realities of language usage, especially in legal contexts, necessitate a more flexible and context-sensitive approach. The adoption of Divine Conventionalism within Shia jurisprudence represents an attempt to bridge the gap between the innate capacities for speech and thought and the contingent nature of linguistic conventions. This approach acknowledges the foundational role of divine providence in establishing language while recognizing the human capacity for innovation and adaptation in its ongoing development. In conclusion, the intricate relationship between language and law, encapsulated in the debate between intrinsic and conventional theories of meaning, reveals the depth and complexity of jurisprudential inquiry. The study underscores the importance of a multidisciplinary approach that integrates linguistic, philosophical, and legal perspectives, contributing to a richer and more comprehensive understanding of the principles underlying legal interpretation and application.

Today's world has become so dependent on virtual space that it is impossible to imagine life without it. Due to its special characteristics, this space can cause harm to children, such as social, cultural and educational harm, examining the perspective of Iranian jurisprudence and law, the permission of parents to restrict children's access to virtual space with regard to rights. and justifies their assignments. The reasons for this justification of the duty of parents to educate and discipline children have been considered. Protection from harm and dangers of cyberspace is one of the duties of parents. It seems that a global cooperation is necessary for this issue in order to build the future generation in a safe social environment. Lawful virtual space can achieve this goal, so the first step is to legislate in this area with an emphasis on determining the role of each institution and person, including parents, and the next step is to monitor the implementation of these laws and apply guarantees. Performances are foreseen, which of course all require infrastructure.

Imami jurists believe that the opening of ijtihad has various effects, one of which is the employment of many people in the field of ijtihad and ifta. Sometimes people who claim to be in the field of ijtihad and ifta may not actually have enough knowledge in this regard, and the fatwa issued by them will cause harm to individuals. It seems that one of the tools by which it is possible to control the above-mentioned possible matter is to install a "mufti guarantee" which itself has countless confirmations in the four sources and due to the distribution of resources scattered in the votes and The views of some jurists have been pointed out, albeit in a small way. Most of the executive mechanism of the mufti's guarantee has been taken.which itself has countless confirmations in the four sources and due to the distribution of resources scattered in the votes and The views of some jurists have been pointed out, albeit in a small way. Most of the executive mechanism of the mufti's guarantee has been taken.

The main issue of the current study is that, from a jurisprudential point of view, does the contract necessarily have to be based on conventional outcomes such as ownership, matrimony, etc., or is it sufficient for the fulfillment and validity of the contract by mutual commitment and agreement. Some scholars have believed that contracts that are based solely on commitment and do not include conventional outcomes are not an example of a contract, and as a result, are not considered compulsory. Moreover, the inclusion of evidence of fulfilment to the condition of these contracts is doubtful. In this study, while explaining the nature of the contract, this theory is criticized and it is proved that, although the dominant discourse of Islamic jurisprudence in contracts is the discourse of ownership and the existence of conventional outcomes, contracts based on commitment are also legitimate and compulsory. After proving that the ‘aqd (signing the agreement) does not require conventional outcomes, the legitimacy of the contracts based on obligation is examined with regard to the nature of the “condition.” One of the important effects of proving the legitimacy of such contracts is that contracts such as istiṣnāʻ (sale in the form of a manufacturing contract) contract, qolnāmeh (informal preliminary agreement) and the like will be compulsory in the form of commitment for commitment.

There are few chapters in narrative sources that do not have at least one case of conflicting hadiths. Therefore, solving the conflict of hadiths has always been the concern of jurists, and efforts have been made for the purpose of conventional combination and preference among hadiths. In the meantime, the role of the narrator’s question in the collection of hadiths and implementation of preferences has been neglected.This article tries to address the narrator’s question in the context of solving the conflict of hadiths by using the descriptive-analytical method. Narrator’s question is a sign of the narrator’s diligence in narrating the hadith and the evidences related to it, and it has the authority to resolve the conflicts caused by the illusion of unity of the subject. The narrator’s question is an uninterrupted indication to the specificity of one hadith over another and the closeness of the content of one hadith to another, and is among the important sources of extracting the narrator’s understanding, the narrator’s conjectures, thoughts and illusions and the sīras existing in the era of the Infallibles and other effective evidences in drawing inferences of the legal injunction.

Civil responsibility has always undergone fundamental changes due to the changes that happen in human life. Economic attitudes to rights and economic analysis of rights are among the topics that have influenced civil responsibility. Therefore, in this research, the criterion based on economic efficiency has been investigated in the verification of the conventional person.

In terms of purpose, this research is practical and in terms of information gathering, it was done in a documentary way and through the study of valid laws and sources, and the obtained information was analyzed in a descriptive-analytical way.

The economic concept of the conventional person examines two realistic and normative approaches in order to achieve economic efficiency, which the economic criterion of the conventional person is based on the measurement of benefits and costs And in this way, she will be able to create the necessary motivation in the perpetrators of damage and potential victims to take appropriate precautionary measures in order to prevent harm to themselves and others. In addition, the chaotic economic consequences have been prevented and thus an effective step has been taken in reducing the amount of costs and realizing economic efficiency. In fact, the economic analysis of the conventional person, while it resolves many ambiguities of the abstract and general concept of the conventional person, it can be a desirable and efficient criterion if it is not the only basis and goal of the conventional person and is desirable and a goal along with other goals and foundations of the conventional person. Thus, in the realist approach, because economic analysis is the basis and in line with other principles and goals of the conventional person, such as ethics, justice, and fairness, it is considered a desirable and acceptable criterion, also in the normative approach, because the economic criterion is the only basis of the conventional person. It is necessary to doubt its correctness and justification.

The synergy between Gadamer's philosophical hermeneutics and Perelman's rhetorical logic, has resulted in the formation of a model in the methodology of legal science that can be referred to as rhetorical hermeneutics. According to this model, in judicial proceedings, justice is a guiding concept to inspire the result in the interpreter's heart, which is re-understood through an exchange of conversation, and the criterion for its recognition in undetermined situations is to persuade the conscience of a reasonable audience. After hermeneutic understanding of the result, the lawyer's task is nothing more than justifying it with rhetorical tools to persuade the audience to believe that he is presenting a definite image of truth. Under this model, it is not accepted to use the interpretive manners of the Usul al-Fiqh science, in which the subject matter of the propositions does not intervene in the conclusion of the argument. Due to the formation of this model on the basis of conventionals query in humanities, the present research, using a descriptive-analytical method based on the conventional perceptions theory of Muslim philosophers, evaluates the preconditions offered for accepting this model in Iranian law and explains the application of Usul al-Fiqh in law. Usul al-Fiqh is the methodology of discovering the conventionals of the lawgiver and its topics of the interpretation of terms are nothing but explaining the custom and conduct of the wise that is the starting point of understanding and a constituent of the horizon of the interpreter's mind and the semantic horizon of the text and one of the points of fusion of these two horizons.

With the formation of the idea of systematization through Islamic jurisprudence, many sub-systems were formed based on jurisprudential views. Iranian legal system is no exception to this rule. The formation of laws on the basis of Islam led to the entrance of many jurisprudential views into the realm of law. The condition of the absence of paternity is among the cases entered into the realm of law from Shiite jurisprudence. The universality of positive laws, especially criminal provisions, has made social developments and demands not tolerate certain views of traditional jurisprudence such as non-retaliation of father and on the opposite, retaliation of mother for murdering one›s child. The theory of establishing a dynamic jurisprudence that keeps up with the developments of time has created capacities for transition from the text-based jurisprudence to the evidence-based jurisprudence. The objectives of religion, the necessities of time and place and the jurisprudential rule of justice are among the capacities that have provided the possibility of the dynamics of jurisprudence. In this study, through attempting to use the justice principle as one of the major objectives of religion, the difference between father and mother in the execution of retaliation punishment has been examined.

International Criminal Court (ICC) accepted the Prosecutor demand to start the investigation on the crimes by the American troops in Afghanistan, in March 5, 2020. But the challenge that ICC will be faced is that there is an Agreement (called SOFA) between United States and Afghanistan that if American troops commit a crime in Afghan territory, they will be under the exclusive jurisdiction of their own country namely USA. The United States has Argued that Afghanistan has no right about the American troops so they cannot hand over this right to ICC due to the membership in ICC. So we face with two contradict conventions that Afghanistan has signed: First the Statute of the ICC and second the agreement between Afghanistan and USA. The aim of this article is to study the challenges that ICC is faced to start the investigation on the American troops in Afghanistan and to answer the conflicts between the conventions signed by Afghanistan.

The nature of Qarīnat al-Irtikāz, its effect on verbal signification, and its role in solving the fiqhi (jurisprudential) issues are one of the most important uṣūlī topics. The first question is that, how is such symmetry recognized, how does it differ from other symmetries such as Qarīnat al-Inṣirā and Qarīnat al-Munāsibat, and how the various kind of Sīrat al-ʿAmalīyyah (practical attitudes) form based on mental irtikāz (fixed way). The next question is that, how such symmetry can be used to solve newly-raised fiqhi issues. Thus, the position of Qarīnat al-Irtikāz in the inference of religious law is the fundamental question before us. If we consider Qarīnat al-Irtikāz as any meaning that penetrates the mind, does not independently garner much attention, and its origin remains unknown, we should consider it as nonverbal-connected symmetries that always does not refer to a definite rational symmetry and is itself the origin of symmetry of Qarīnat al-Inṣirāf and Qarīnat al-Munāsibat of a rule and a subject. Thus, a special longitudinal system forms between these three types of symmetries, and originality and adherence to the symmetries will be adaptive. By searching for uṣūlī sources, two types of efficiency can be imagined for Qarīnat al-Irtikāz: first, efficiency in determining the literal meaning and second, efficiency in the shaping of attitudes of the wise people and jurists. Considering the position of the wise people and jurists’ attitudes in recognizing the ḥukm (rule) and the subject of the ḥukm, and also the implication of the verbal evidence on ḥukm or subject, we can understand the importance of intervention of irtikāzāt in shaping the attitudes and their role in discovering the ḥukm or the subject of the ḥukm.By examining three examples of newly-raised issues, first, based on implicit stipulation whether the woman’s services at home is free or transactional, second, bank liability in its new form, third, local anesthesia at the site of ḥadd (legal punishment) and retribution with medical tools, we conclude that Qarīnat al-Irtikāz has a decisive role in understanding the verbal evidence, in generalizing or narrowing verbal signification, and in conclusion or non-conclusion of iṭlāq (inclusiveness).

Decisions about how to invest, produce and consume individuals, households, businesses and the government also affect other individuals who are not directly involved in the transaction, so one of the main topics in economics is how to compensate for this. Injuries and consequences. This article first deals with the issue of harm in jurisprudential literature and extracts the conceptual model of harm in jurisprudence, explains the problem of external consequences and then with reference to the response of Imami jurists in different categories and sometimes opposite in solving the problem of external effects to provide a model. Jurisprudence as an autonomous opinion in solving this problem.

The research method in this article is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

 In all stages of writing the present study, while respecting the originality of the texts, honesty and trustworthiness have been observed.

This article extracts the conceptual model of losses from Imami jurisprudence and determines the position of negative external effects as one of the types of losses, presents a jurisprudential model of eliminating external effects and finally compares the model with conventional economic patterns of Pygmy. And Kozi in two parts of troubleshooting the conventional pattern and the distinguishing feature of conventional models expresses the distinguishing features of this pattern.

Since the custom considers the side effects as harm and damage, so the "harmless rule" can be used as an important jurisprudential rule in the discussion of external effects and considers it necessary to compensate for the loss or its disappearance. A jurisprudential model for eliminating external effects, knowledge of the conceptual model of harm in jurisprudence is very important because in addition to recognizing the types of harm, the reporting of the conflict of side effects in jurisprudence is easy.

Worthiness of the object of contract is one of the important issues in contract law. Analyzing this concept and its sanction is a place of disagreement in Shiite jurisprudence as well as Sunni jurisprudence. This article specifically seeks to find the answer to what the conventional verdict of worthlessness of the object of the contract is. Is the aforesaid contract invalid? In spite of the clear answer and the Shiite and Sunni jurists’ views about the invalidity of these contracts, this article shows that those contracts cannot be invalid in jurisprudence since first of all the criterion to identify whether the object of contract is worthy or not, is the object’s benefit, and there is no need to assume this benefit as an absolute and legal one. In other words, worthiness can be temporarily and accepted by the custom; so things that are legally worthless can be assumed to have worth. Secondly analyzing the traditions about the properties which are invalid in the jurists’ views says that these traditions cannot establish the invalidity of these contracts. Some of these traditions purely express the obligatory verdict of permanent prohibition and some of them accepted the conventional verdict validity. Just a few traditions are for the invalidity of these contracts. According to the rules, opposite traditions abolish each other and according to principles such as necessity of fulfillment of contracts, the validity of contract can be established.

Theory of conventional perceptions is one of the innovations by Allame Tbatabaei. By introducing this theory, he has significantly influenced various sciences and provided new opportunities. Science of Usul al-Fiqh has also been greatly affected by this theory. Allame Tabatabaei considers Usul al-Fiqh as a conventional science and believes that unlike real sciences, what distinguishes these sciences is their purpose. In addition, Allame considers Usul al-Fiqh as a science that speaks about the rules set by the wise, which is also a result of the theory of conventional perceptions. Although this theory has solved many problems of Usul al-Fiqh, it also has some drawbacks; for example, there is doubt about the conventional nature of Usul al-Fiqh, the appellation of sciences and the conduct of the wise and its validity. In the present paper, through a descriptive-analytical method, this change in the subject-matter of Usul al-Fiqh has been explained and some criticisms have been discussed.

One of the Usuli issues in charge of acquiring a proper means for discovering the religious percepts is the authority of certitude. The famous Usulis maintain that the Usuli certitude has inherent authority and as a result, consider it as the basis for recognition in Islamic jurisprudence and Usul al-Fiqh and, falsely, refer to it as knowledge; nevertheless, many later Usulis deny the authority of Usuli certitude and believe that the basis of authority is achieving the actual percept, not the mere spiritual condition of the duty-bound. Therefore, it is necessary to consider certitude as the basis of recognition, subject to its correspondence with reality i.e. the logical certitude which is the exact and terminological meaning of knowledge. But the more important question is how to acquire logical certitude i.e. knowledge as to religious propositions. It appears that the only certain way to acquire knowledge as to imperative teachings of religion is hearing them from the Divine Lawgiver or the honest reporter.

As an institution influencing the socio-economic relations of human societies in the present era, "Bank" is of high importance. Thus, such subjects related to this area as "bank and its nature", "money and its role in the economy and trade", "riba (usury) and its difference with profit", "conventional and Islamic banking", "banking services such as letters of credit (LC)" etc., all known as "banking law", which is an important subset of economics and business law (both domestic and international), are also of particular importance. At the same time, the necessity of pathology of the Usury-free Banking Law (1983) after four decades of its implementation has provided the grounds for different opinions from experts in this area: Has Iran's banking system been successful in implementing and enforcing the said law, or has the banking operation been diverted from the sharia and legal path for various reasons and has adopted a "quasi-usury" policy? Given that the main focus of "Islamic/non-usury banking" is on usury and its religious sanctity, the necessity of addressing this issue fundamentally by the supreme religious authorities and jurists is felt more than ever, and therefore seminaries along with Iranian universities as two main source of thought production in society are obliged to provide the necessary religious and academic answers to questions and ambiguities related to the above issues by conducting original and fundamental research. The present study attempted to address the various aspects of the subject under discussion and provide the opinions of experts in banking law (including scholars and academics), as far as possible, to explore the importance of the issue and present solutions to the current problems related to Islamic banking so that they can be used in the amendments to the said law, which is desired by the Islamic Consultative Assembly and the government. Therefore, after the introduction, the overview dealt with, evaluated, and analyzed the bank and its importance in the present era, as well as the sublime position of Imamiah jurisprudence/Ahl al-Bayt (PBUT) as a divine resource and strengthening the fundamental subjects related to and influencing contemporary law. Then, the objections and criticisms regarding the function of the banking system in the implementation of Islamic banking within the framework of the law on usury-free banking were considered. Finally, after summarizing the results, suggested amendments were made to be used by officials and those interested in this significant area of law.

There is a serious disagreement in the jurisprudence of Imamiyyah as to whether or not the trustee of the minor affairs is entitled to receive remuneration and, if so, the criteria and amount thereof. There are five theories : Absolutely permissible to remove the wage (whether poverty or financial ability of the manager of minor affairs), the ability to remove as much as personal sufficiency, Licensing the minimum amount between the wage and personal sufficiency, absolute authorization to take the wage in the event of trustee poverty, and the permission to take the least amount between the wage and personal sufficiency in the case of trustee poverty. The source of the disagreement is the difference in understanding and interpretation of one of the verses of the Qur'an. Also, although the famous doctrine of jurisprudence holds that this is a conditional right to have no intention of exoneration. However, there is no such requirement in the theory of authorization of taking as much as personal sufficiency. The famous theory is that the license to take is as much as the wage. However, reasons and analyzes that are opposed to this theory have also been put forward and even if the famous theory is accepted, it is subject to several conditions. However, due to numerous doubts and various criticisms of the reasons to prove this theory, some jurists have taken the precautionary approach. And in the absence of personal emergency, they believe that the property of the minor should not be seized.

Third testimony in Azan and Iqamah due to its doctrinal and social aspects is of huge importance. This paper presents the historical background of the jurists' viewpoint on the third testimony in Azan and Iqamah and its evolution. Thereafter, by stating the reasons for the jurists' disagreement, the sloganistic aspect of the third testimony is emphasized. The third testimony is not a religious slogan rather it is conventional. The ruling of the conventional slogans varies depending on the religious titles they are subordinated to, contrary to the religious slogans that always lay under the binding principle of the veneration of the sacraments or under the prohibition of humiliating them. In addition to the recommendatory title of "confession to the guardianship", the prohibitory titles of legislation (Tashrī) and "leading into Ignorance", and the compulsory title of "Guiding the Ignorant" can also be considered regarding the third testimony. The achievement of this research is that confession to the guardianship is recommendable in every situation, especially following the testimony of the apostolate. The third testimony should be expressed in such a way that it does not imply that the third testimony is part of Azan or Iqamah.

There are five legal (uṣūlī) issues posited in legal theorists’ (uṣūlīs) statements as principles effective in theory of the relation change (inqilāb-i nisbat = change of relation between two conflicting reasons in the face of the third). The claim brought up about the issues in question is that the kind of principle accepted in any issue is effective in acceptance or rejection of the theory of relation change. In the author’s opinion, two issues from among the claimed instances are effective in systematization of the theory of relation change and not of the main theory; and the other three theories can, on any basis in which they are adopted, accept the theory of relation change and the kind of basis adopted in those issues have no effect on rejecting the theory of relation change. Therefore, the basic objections made in the legal theorists’ statements on this theory are incomplete.