جستجوی مقالات مرتبط با کلیدواژه « deduction » در نشریات گروه « فقه و حقوق »

Regarding “Certain Iranian Asset” case, International Court of Justice, faced with five preliminary objections with respect to the jurisdiction of ICJ and admissibility of the case which were raised by Respondent. As the second preliminary objection, the United States requested the Court to dismiss as outside the Court’s jurisdiction all claims, brought under the sovereign immunity as a customary international law. Iran relied on Article IV (2), Article X (1) and Article XI (4) of Treaty of Amity to support its claim. However ICJ upheld the second objection of USA based on its interpretation in accordance with the Treaty’s object and purpose and also its finding in “Immunities and Criminal Proceedings Case” and “Oil Platforms Case”. In contrary to ICJ’s opinion, a logic relationship can be seen between the object and the purpose of Treaty and the provisions which have been mentioned by Iran. Such conclusion could be reached by analogy and deductive method as well as analysis of separate opinion of judges.

Judicial reasoning is a process in which magistrates reach what they do not know using data and information (what they know and clear) when dealing with cases in court. Correct passing through this process by the judge results in the acceptance of the judgments on the one hand and the acceptance and enforcement of the judgments on the other. The following article seeks to analyse whether the reasoning in administrative procedure, in view of their features, are distinct from those of criminal and civil matters. The results of this descriptive-analytic study show that although administrative reasoning has the same components of reasoning in other proceedings as: problem explanation, fact discovery, legal rule discovery, analysis, and inference, the differences in administrative litigation in terms of parties, purpose, subject matter and the like have led to its relative difference with other areas of judicial reasoning. This distinction requires that a specialist judge in administrative affairs should carry out the process of reasoning in administrative litigation.

An important and challenging issue from the beginning of the history of Ijtihad is the role of mind in the inference of religious judgments. Some scholars in the Sunni have been able to find a useful role for it, far from excessive and worthless among the advocates and opponents, the maximal and minimal role of mind in the process of inference and Use mind as a useful tool without putting up an independent part for it in their books and discussions. Different roles of mind cannot be denied in the inference and understanding of religious purposes and religious comparison, although it has never been given free decision-making. This research is conducted analytically using library resources to review the role of reason in ijtihad based on the principles of Sunni jurisprudence and the result is that the greatest role of mind is in identifying the main being and understanding the general goals of the religion and comparative works and the implementation of religious laws within the community.

According to the majority of viewpoints by Osuli scholars, the citable cases in the process of deduction is confined to unimpeachable evidences and  is limited to referring the suspicions whose density is not confirmed due to specific reasons; thus, other suspicions could play an affirmative role which are not considered as an independent reason.  Deploying an analytical-deductive method, the current research is to substantiate that referring to weak suspicions is possible in the process of deduction even by not accepting the closure reason, and this trend is observed in the works of scholars such as Shaikh-e Ansāri. The hypothesis of this research is that the density of weak suspicions determines a higher degree of knowledge which is regarded as authority according to jurisprudence and Osul. However, proving this moderate claim depends on responding two basic questions; the first one is that ontologically, is it possible to form knowledge with a high degree of affirmation using the low degree density knowledge? The second question is that does such knowledge enjoy authority? This research concludes that knowledge could be formed in three ranks of certainty, assurance and suspicion aligned with specific suspicion. Due to the natural authority of certainty and customary authority of assurance, if the suspicion density ends in reaching certainty and assurance, the result of deduction is valid, but if the outcome of suspicion density ends in a kind of suspicion aligned with specific suspicions, the validity of such a suspicion is doubtable according to the majority of jurisprudents.  Given the validity of suspicion density is proved, its contribution to Islamizing human sciences would be of paramount significance.

Custom plays a key role in administrating justice which is the ultimate goal of and the philosophy of all of the legal schools, as all of the legal systems consider it as the most important source for passing the law. In the Islamic legal system, recognizing the law as the basis of rules authentication is doubtful as the shari’ah legislator is the only reference for laying out the laws. However, the legislator has never negated the custom and its foundations absolutely and has approved it in some cases as well. Likewise, the jurisprudential resources have discussed the issues on custom more or less, but by investigating them, one may find out that jurisprudents do not recognize it as the reference for deduction and rarely refer to them in stating the jurisprudential rules, so as the majority of jurisprudents consider the custom just as a benchmark for clarifying the concepts and determining the cases for them. According to the findings of this research, the custom which roots in natural rules, ethical values and rational principles is the only one which could be used as the criterion for discerning the justice.

Pragmatism is an approach which focuses on satisfaction of consequences instead of essential elements of a phenomena. The definition guide us that pragmatism effects a widespread influence on social sciences. The pragmatic movement on law began in fist twenty centuries and have raised until today. This article is seeking to study the effects of pragmatism on judicial interpretation. For this aim, we list the elements of classic interpretation and compare or adjust them to new approach. In classic view, the judge must find truth but a pragmatic person does not believe in a given result as true one; all approaches, even some conflicting approaches may be true. Classic interpretation trends to textual interpretation and systemic analogy. Systemic analogy make these dimensions: essentialism, sovereignty of legal principles and logical interpretation. On the contrary, legal pragmatism is guided to contextualism, antiessentialism and induction. this comparison guide us to a novel nethod of interpretation

The culture of Ijtihad and research manifested itself in the human society ever since the advent of Islam with scholars from the School of Ahlul- Bayt (AS) making more efforts in this area than those of other schools. They left an important legacy of views and opinions in every field of science that they stepped into. One of the branches of rational sciences is Ilm Usul al-Fiqh (lit. knowledge of principles of jurisprudence) which scholars use to derive and deduce legal rulings from their sources such as the Quran and Sunnah. At times, this has led to discrepancies in their views and verdicts. Obviously, the outward and surface meanings of the Quranic verses and traditions are one of the main reasons responsible for the differences. The Sunni populace who have deprived themselves of the knowledge of the family of the Prophet (S) have taken recourse to rational reasons such as istihsan (juristic preference), common good, blocking the means and analogy which have no value and momentum in the school of Ahlulbayt (AS). The hadith being issued in the state of taqiyah (dissimulation), the differences in the recitation of the Quran, the effect of social conditions on the Mujtahid's verdicts and identification of the criteria for trustworthiness of the narrator are some of the main causes of difference of opinion among the scholars of both branches of faith.

In the Civil Code¡ evidence have been considered as proofs for claims; evidence have been classified under two titles: “legal circumstantial evidence” and “circumstantial evidence left to the view of the judge”. In spite of their simple appearance¡ there are many factors involved in forming them and the effects of these factors on legal circumstantial evidence and circumstantial evidence left to the view of the judge are¡ to a great extent¡ different. There are various discussions dispersed in legal books under nature¡ foundation¡ and origin of evidence. The present article tries to organize these discussion under the title “how evidence are formed to prove claims” so that it may be found that how evidence (whether legal circumstantial evidence or circumstantial evidence left to the view of the judge) appear to prove claims. Prevalence¡ convention¡ and the permit issued by the legislator are factors playing role in the origination of evidence to prove claims. Factors forming legal circumstantial evidence are as follows: prevalence and the permit issued by the legislator; while the elements of circumstantial evidence left to the view of the judge are context or the situation of a particular claim and inference made by the judge. When each of the two types of evidence is applied¡ two inductive and deductive methods are combined.

It is widely known and stated in the works by recent scholars that the sources of Shi’i thought and derivation of Islamic laws, according to Imamiyyah (Shia), are three: Quran, Sunnah, consensus and intellect. In spite of this extensive reputation in the historic and content-related attitude, there is ambiguity around the fourth source of Islamic law. Thus, when studying the juridical system of every jurist, one must see as to how he defines intellect or reason. Some of the historical manifestations of the proof of intellect are the applicable principles such as the principle of presumed innocence and presumed continuity (Ghazzali, 1420:1/2/217,221) and some others are the methods of understanding and deciphering the speech (Mohaqqiq Hilli, 1418: 1/31). In this study, the viewpoint of prominent jurists from the Shia School of Jurisprudence, from Sheikh Mufid to First Martyr (Muhammad Jamaluddin al-Makki alAmili), have been studied. With a view to the developments and changes in the place of reason in deduction, the innovations and novel thoughts of each jurist have been meticulously pointed out and discussed .

It is well-known among Shia jurisprudents as also asserted by scholars in their works that the sources of derivation of Islamic are four: The Quran, Sunnah, consensus and reason. In spite of the fact that reason has been generally viewed over the history as a source of derivation, yet it remains a point of contention and debate due, largely, to the ambiguity concerning its definition. When examining the jurisprudential system of every jurisprudent, we must see as to what his definition of ‘aql (reason) is. A part of the historic manifestations of reason are the frequently used principles such as the principle of "presumed innocence" (asl baraat al-dhimma) and the principle of istishab (presumption of continuity). Another part of it constitutes dalil al-khitab or the methods of understanding a speech in the way it is delivered. This study seeks to study the viewpoints of prominent jurisprudents from Shiekh Mufid to First Martyr (Muhammad Jamaluddin al-Makki alAmili) and while examining the course of development of the status of reason in deduction, it makes mention of the innovations and novel thoughts of each jurisprudent in this area.

Article 190 of the civil code has stated the general principles of the validity of the contracts. According to this article, the mutual agreement (consent) and intent are necessary to carry out a contract. Absence of the intent causes the annulment of contracts and the absence of assent is rendered of no effect. The concurrence of the intent and assent is not the provision of the validity of the contracts and it is possible to be settled a contract with intention while it has no authentic consent. Such a person who carries out the contract under the external illegal pressure is called a compelled person. The contract which is established under the unwillingness is no effect and with the subsequent consent of the compelled is enforceable. The civil code has no special ordinance about the subsequent consent but it has considered the owner permission as indication (revealer) in an unauthorized contract. The law scholars, with the adoption of the criterion of an unauthorized contract extend the verdict of article258 of the civil code to compelled contracts. From one side, with respect to the bases of an unauthorized contract and article 258 of the civil code and the provisions of the reasoning validity from the way of deductive reasoning from other side, it seems that the mentioned deductive reasoning is not the authentic deductive reasoning. At the end with citation to the legal principles, it could be accepted the Conveyance of the subsequent consent of the compelled person in compelled contracts.

Despite the Sunnites، jurists of Shiite have considered unanimity a reason due to its power of decoding the innocents saying، and therefore have counted it as a factor of tradition along with the Book and Wisdom as the ways of reaching true religious rules. The matter can decrease unanimity’s status - if ever being accepted- to a single narrator tradition and therefore can cause the invoking of such a reasoning to be confronted with some challenges، knowing for sure that the case of blood and soul are to be dealt with plenty of caution. It is tried in this article to introduce and discuss the issues based on unanimity though the criticism of invoking unanimity in deducting criminal precepts.