نشریه مبانی فقهی حقوق اسلامی
سال چهارم شماره 2 (پیاپی 8، پاییز و زمستان 1390)

Ijtihad as a meditation in sources and purposes of Islam to obtain an opinion for unknown cases has been regarded as a collective duty. This historical obligation has been performanced in various methods during the Islamic history. Before the establishment of jurisprudence schools, free or independed Ijtihad was the current paradigm; however after that period the depended Ijtihad and bounding over the rules and methods of the great former jurists (faghih)was accepted and followed as common or standard methods. Scholastic jurists that have been divided to: absolute, exegesis and preference mujtahid, have the same knowledge that the establishers of the schools have. In spite of this they were bounding over the former leader’s rules, principles and methods in their meditation or exposition. Passing the Jurisprudence from period to other has not created any interruption in its historical process. Therefore matters such as jurists imitating, closeness of ijtihad and absence of jurists in an age was not happened at all.

The most fundamental concept in philosophical aspect of bioethics, the “personal identity”, is being reviewed & studied in this article. After reviewing the concept of “person”, the major theories of “personhood” is being briefly expressed, then, the important point of “personal identity in Islamic philosophy in regard of cloning from person to person” is evaluated in accordance with the acceptance or rejection of reincarnation. Furthermore, in expressing the measures of the “personal identity”, three different theories including   shared memory, casual dependence and theory of survival have been expressed and each one has been individually studied and analyzed in accordance with the Islamic philosophy. Finally, it is expressed that the “personal identity in Muslim philosophers’ point of view” is nothing but a “personal unity. The soul is the only element that can protect & guard the identity as well as the personality. If cloning is not reincarnation, experiencing it tangibly shall be expected in order to be logically studied as a posterior fact, since the philosophy cannot say anything about the prior facts.

In the modern era - is called communication time - symbiosis, interaction and experience exchange among human beings are vital and necessary. Islam deems necessary the multilateral presence of religion in diverse fields of life, one of which is connections of Muslims with others. Relationships with nonMuslims have been brought up in the Qur’an from different aspect and with various criterions. In the same way, efficient answering to questions concerning human relationships, interaction and symbiosis with the followers of other religions is expected from Islamic Jurisprudence. Certainly previous jurists have provided some answers in this ground, but nowadays in the light of new requirements, these answers need further study. Therefore, this paper has noticed the verdict of ritual impurity of the people of the sacred book. Although some jurists like Vahid Behbahani has said this verdict has turned to emblem of Shi’a and despite the statement of author of Madarek: “ Shi’a is known with the verdict”, but modern researchers and jurists express serious hesitation about reasons of this judgment which is also one of controversial matters between sunnism and shi’ism.  In this article, the four proofs (two verses from Holy Qur’an: 28 of Toba and 125 Anaam; traditions and consensus) of this verdict have been reviewed and their inaccuracy proved.

The jurists have been deliberating on its selling and smoking, and of course there has not been any agreement among them in this regard. This research considers the relevant jurisprudence evidences and principles comprehensively. The main point is that buying and selling the filthy (najes) and useless goods, and those which play any role in “sin commitment” are prohibited in Islam, so some jurists claim that the transaction of tobacco products is forbidden, while the others believe it is lawful because the pictures on cigarettes’ pockets warn smokers. It concludes that the important factor which played and plays fundamental role in Islamic commandments about smoking is “customary low” (Orf) and so the jurists must consider all the aspects of the problem.

Some thought men believe that delivery and receipt are similar to two concepts of cause and existence due to uniformity of essence in turns of validity are different. Because of this although delivery is done by seller and receipt is done by customer,delivery will be happened when receipt is done by customer, so effects like transferring of gurantee indemnify are done on customer's act and untillthe customer doesn'treceive the object of sale, the seller wont discharged from responsibility of destructing object of sale before receipt. In fact delivery and receipt are two concepts that their differences are real and fact. Delivery and receipt are two separated stepsfrom each other and imaginatingly delivery may be done by seller but the customer doesn't receive the subject. Practical use of this separation is in effects like transferring guarantee of indemnify, right of lien act and etc. It means that the goal of delivery is necessary for seller and one is discharge from guarantee won't be depended on receipt of object of sale by customer.

Issues related to physician's liabilityis as old as the science of law itself. This article has been written while considering abundant studies carried out on the principle of physician's liability with presuppositions like doctor's responsibility, the requirement to prove the doctor's failure case of obtaining innocence, etc. which has turned into common statement and jurisprudence. The current study is trying to prove that the relation between doctor and patient is contractual in most cases. Even in unnecessary cosmetic (fantasy) surgeries, the doctor is obliged to the result; and in case of failing to obtain the [expected] result, the doctor is considered as the defiant of the contract and the guarantor of breaching the contract commitments. No reasons exempting physician's liability such eshesan principal cannot be enforced in this commercial relation