Jurisprudential Analysis of Devotional Stay at Mash'ar-ul-Harâm
Ahmad Reza
khazaei
Assistant Professor, Faculty of Literature and Humanities, Islamic Azad University, Central Tehran Branch, Tehran, Iran
author
Mahdi
Sahebifard
Full Professor, Faculty of Theology, University of Applied Sciences, Tehran, Iran
author
text
article
2021
per
This research reviews the ruling of devotional halt at land of Mash'ar-ul-Harâm after the midnight of 'Eid-ul-Adha until before the dawn. An inquiry into the words of scholars indicates this ruling is controversial among jurists. The words of most of the jurists indicate that staying (mabit) at Mash'ar-ul-Harâm is obligatory. However, in the view of a number of late and contemporary scholars, staying until before down at Mash'ar-ul-Harâm is not obligatory. Some others decreed that pilgrims should be precocious about it. In order to prove the obligation of staying at Mash'ar-ul-Harâm the authors have cited to the practice of the Holy Prophet (PBUH) and the Infallible Imams (AS) as well as the traditions that allow women’s moving to Mina in advance. However, in the view of those who believe it is not obligatory, the evidences of the jurists is not sufficient to prove the obligation of staying at Mash'ar-ul-Harâm at this period of time, because the Holy Prophet (PBUH)’s Practice (Sirah) by itself does not indicate its obligation. The permission of moving toward Mina in advance can also be a reason for facilitating the performing of rituals for those who have difficulties, without indicating the obligation of staying at night for the whole pilgrims. The research have used a documentary and library method. The results of the study show that the available evidences do not support the theory of the obligation of staying (mabit) at Mash'ar-ul-Harâm and the words of those who believe it is not obligatory is more nearer to the correct ruling.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
709
724
https://jorr.ut.ac.ir/article_75650_da76400ff643aa3b14bf9ff2d2b0e80e.pdf
dx.doi.org/10.22059/jorr.2020.293329.1008662
Place of Expiation in Islamic Jurisprudence and Feasibility of Penalizing in Iran Law
Jamal
Beigi
Associate Professor, Department of Criminal Law & Criminology, Maragheh Branch, Islamic Azad University, Maragheh, Iran
author
text
article
2021
per
Legislation of expiation with current special specifications and conditions has been accomplished only in Islamic law and the necessity of expiation in some sins and crimes based on jurisprudential teachings confirms that it is a punishment and also the interpretations used in the Quran, the Sunnah, and the words of Islamic jurists indicate that it is a punishment. Although, because of some specific conditions such as intention of Proximity to Allah it is also considered a kind of servitude. The outstanding specification of expiation is its lack of external executive guaranty, therefore it is considered a crime by itself. Expiation has different kinds and causes. According to law, some of the causes of expiation are regarded as crime and they have official guaranty. Some others, in spite of being sin, are devoid of external executive guaranty and some others include unintentional deeds or missed prayers which are not considered sin. The goals of canonization of expiation are mostly aimed at correcting and rehabilitating the criminal. Of course, some of the social objectives of canonization of expiation in Islamic criminal policy ultimately lead to a reduction of crime in the society. Therefore, this divine duty must be popularized through implementing educational and cultural programs. By specifying the place of expiation and its functions in Islamic jurisprudence, this article attempts to examine the feasibility of penalizing expiation as a manifestation of legal penalties in the penal system of Iran and to suggest this entity as a complementary punishment to the original ones.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
725
770
https://jorr.ut.ac.ir/article_75935_98f4bddeac5d45ea7adcfd57f7c57e84.pdf
dx.doi.org/10.22059/jorr.2020.292947.1008657
A Study on How the Sentences Are Carried Out for a Muhârab and the Conformity of the Method of Choosing Graded Punishments with That of Alternative Punishments
Mohammad Hossein
Shaker Ashtijeh
Ph.D Student, Faculty of Theology and Islamic Studies, Ayatollah Haeri University, Meybod, Iran
author
Hamid
Roostaei Sadrabadi
Assistant Professor, Faculty of Theology and Islamic Studies. Ayatollah Haeri University, Meybod, Iran
author
text
article
2021
per
Regardless of what the nature of muhârabah is, this study examines four punishments for a muhârab, i.e. execution, crucifixion, cutting off, and exile. As for the method of choosing one of the punishments, based on Qur’anic verses, Islamic narrations, logic, and the demands of Islamic law (Shari'ah) some have acknowledged the grades and some have acknowledged the alternatives for a judge to choose one of the punishments. For carrying out each and every one of the sentences, we face questions and ambiguities regarding how punishment is carried out with Arabic language pattern “taf'īl”, the possibility of surviving after the punishment is carried out and suggestions about preventing that, whether carrying out punishment is the right of God or the right of people and what the consequences are, how to crucify or exile, cutting off when the organ is absent, the way that choosing how to carry out an alternative punishment is matched with the concept of fixed punishments prescribed by Allah, the possibility of anesthetizing for executing a fixed punishment, and whether the cut organ is a punishment for the community or the muhârab. Using a library method of research, this paper examines the solution for removing the conflict between two groups of arguments for having the option to execute alternative punishments or graded punishments and for solving the problem of logical improbability by proposing a comprehensive method of executive judgment. While examining how every one of the punishments is executed, the existing ambiguities and subsidiary issues are responded and some legislative suggestions to be included in the coming reforms of the penal code are made.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
771
800
https://jorr.ut.ac.ir/article_76139_279712463118db67d941a41e88931d90.pdf
dx.doi.org/10.22059/jorr.2020.295408.1008690
Exploring the Ruling of Ramy (Jamarât Al-'Aqabah) from the Upper Floors in a New Form
Mohammad Rasoul
Ahangaran
Full Professor, Faculty of Theology, College of Farabi, University of Tehran, Qom, Iran
author
Mahdi
Sajedi
Ph.D Student, Faculty of Theology, College of Farabi, University of Tehran, Qom, Iran
author
text
article
2021
per
This study examines the jurisprudential ruling of Ramy Jamarât from the upper floors as well as the newly extended parts. The results of this library-based research obtained by using software and analyzing the evidences indicate that at the time of legislation of Islamic law (Shari'at) and issuance of Islamic narrations Jamara was a symbol and sign installed at the current place of Ramy in Mina at which the pilgrims had to throw stones. Historical accounts and evidences available in the narrations also indicate that this symbol was not important by itself and merely indicated the point at which the stone should be thrown. Therefore, it seems that its longitudinal, horizontal, and altitudinal development at the present time does not have any effect on the ruling of Ramy. Because, each one of them which now exist in the form of an extended pillar in the upper floors represents the location of the Ramy and the direction of throwing stone. And throwing a stone at the extended pillar at each floor, whether it hits the pillar or falls into the pool next to it, is enough for Ramy authenticity.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
801
819
https://jorr.ut.ac.ir/article_76140_3584468b6a9c1871b8ea46e34399ed04.pdf
dx.doi.org/10.22059/jorr.2020.297164.1008717
Investigating the Nature of the Prescribed Religious Punishments; A Critical Approach from the Jurisprudential and Legal Perspectives
Ali
Rezanezhad
Ph.D student, Jurisprudence and Principles of Islamic Law, Faculty of Theology and Islamic Studies, Mazandaran University, Mazandaran, Iran
author
Mohammad
Mohseni Dehkalani
Associate Professor, Department of Jurisprudence and Principles of Islamic Law , Faculty of Theology and Islamic Studies, Mazandaran University, Mazandaran, Iran
author
Aliakbar
Jahani
Assistant Professor, Department of Jurisprudence and Principles of Islamic Law , Faculty of Theology and Islamic Studies, Mazandaran University, Mazandaran, Iran
author
text
article
2021
per
The legislator of Islamic Penal Code has proceeded the policy of separating prescribed punishments from non-prescribed punishments, not presenting a clear criterion and instance in this regard. While, excluding of prescribed punishments from a number of legal entities by the legislator has led to numerous interpretations and many drawbacks. Using a critical-analytical method, this article seeks two aims: First, it wants to provide a detailed criterion for prescribed religious punishments (ta'zir). Second, it wants to express the bugs of the legislator's perspective. Therefore, these results are obtained: First, the criterion proposed for the recognition of prescribed religious punishments is predetermined religious penalties that has not minimum or maximum and considering the rule “al-Ta'zir bima yarâhu al-hâkim”, the ruler decides whether or not to execute. Second, legislator's policy of dealing with prescribed religious punishments in terms of being cautious about exercising Islamic penalties and determining the penalties based on discounts is contrary to the goals of ta'zir and not observing a coherent approach to all the rules and regulations of prescribed religious punishments has led to some drawbacks.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
821
847
https://jorr.ut.ac.ir/article_76141_b65d20dfadc724dbbd372daa3468ad02.pdf
dx.doi.org/10.22059/jorr.2020.298970.1008750
Analysis of the Relationship between Estimân and Zemân 'Ala-l-Yad Based on Permission
Seyyed Mohammad Hassan
Malaekehpour Shoushtari
Assistant Professor, Department of Law, Faculty of Economics & Social Sciences, Shahid Chamran University of Ahvaz, Ahvaz, Iran
author
text
article
2021
per
One of the rules that has been spoken and used in various jurisprudential classifications such as jurisdiction, testimony, contract, trust, power of attorney, etc. is the rule of estimân which is mostly appeared in the phrase "Trustee should only swear". Despite the fame of this rule and its wide application in jurisprudence and law, there are many disputes about it. The disagreement that arises from the ambiguity in the relation between permission, trust and liability sometimes extends to the point where its regularity is compromised. Estimân has been considered by some as an exception to the rule of zemân 'ala-l-yad, not an independent jurisprudential rule. Whether it is a rule or an exception to the jurisprudential rule is not a theoretical discussion, but it has many practical implications. This study seeks to answer the question as to what is the relationship between permission, estimân and zemân 'ala-l-yad? A descriptive-analytical study reveals that estimân is an independent jurisprudential rule with its specific rulings and effects in which permission is an inherent theme.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
849
873
https://jorr.ut.ac.ir/article_76142_2fe314d2c76cc031f8409b8805f1c830.pdf
dx.doi.org/10.22059/jorr.2020.299226.1008757
The Principle of Human Distinction in the View of Islamic Humanitarian Law Compared to International Conventions
Hussein
Haghighatpoor
Assistant Professor, Faculty of Theology, Yazd University, Yazd, Iran
author
text
article
2021
per
One of the principles governing the war in contemporary international law is the principle of distinction. According to the Articles 48, 51 (2) and 52 (2) of the Additional Protocol I to Geneva Conventions, attacks can only be carried out against combatants and should not be directed against the civilians. At the same time, according to the third paragraph of Article 51 of the same document, this support will be lost through direct involvement of the civilians during the conflict. However, for some reasons such as the lack of sufficient legal and criminal executive guarantees, the international humanitarian law has become less relevant to its goals. At the height of the degradation of the law of war among nations, Islamic humanitarian law has recognized the principle of distinction as a binding principle and prohibited the invasion against civilians. This immunity is sometimes specifically extended even beyond the contemporary humanitarian law. This theoretical basis will be completed and confirmed in the light of the Prophet's practice, and is evidenced by historical reports about the number of victims of the Prophet's wars. Relying on the analytical-comparative method, the present article seeks to draw on the library sources and to reveal the face of the principle of distinction from the perspective of Islam.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
875
906
https://jorr.ut.ac.ir/article_76163_31533ac5f78792cb110b84b24cf30b58.pdf
dx.doi.org/10.22059/jorr.2020.281762.1008452
A Reflection on the Idea of no Usury in the Ma'dūdāt
Meitham
Sho'aib
Ph.D Graduate, Ferdowsi University, Mashhad, Iran
author
Mohammad Taghi
Ghabooli Dorafshan
Associate Professor, Faculty of Theology, Ferdowsi University, Mashhad, Iran
author
Mohammad Hassan
Haeri
Full Professor, Faculty of Theology, Ferdowsi University, Mashhad, Iran
author
text
article
2021
per
One of the most complicated topics in Islamic economics is usury about which wide studies have been done by researchers of jurisprudence and Islamic economics. Using a descriptive-analytical method, this research examines the views and arguments of the jurists about the conditions of occurrence of transactional usury. The popular opinion of Imamiyyah jurists have considered two conditions for its occurrence. First, the two goods traded are of the same kind; second, the two goods should be measurable in terms of weight. As a result, the popular view does not accept the occurrence of usury in the Ma'dūdāt. Some have claimed that there is a consensus on this view. The only opponents of this view are Ibn Junaid, Sheikh Mufīd and Sallār. The main reasons for no usury in Ma'dūdāt are narrations. Therefore, the present article analyzes the narrations and believes that the popular view has two main drawbacks and the narrations should be considered as observing the Sunni view. According to the views of the late jurists, it is more probable that the examples mentioned in the narrations are the reason of the prohibition of usury. Other narrations also deal with confrontation between scale and weighed and observational affairs. As a result, the dissenting viewpoint of popular opinion has been strengthened through the critique and analysis of the arguments of views.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
907
937
https://jorr.ut.ac.ir/article_76247_39a9417a5f2ac6ee619cc0e2704eacd3.pdf
dx.doi.org/10.22059/jorr.2020.288687.1008594
A Reflection on Prorogation; Types, Rulings and its Effects
Seyyed Abolghasem
Husseini Zeydi
Assistant Professor, Department of Jurisprudence and Principles of Islamic Law, Razavi University, Mashhad, Iran
author
Ehsan
Shahsavar
Ph.D Student, Criminal Jurisprudence, Razavi University, Mashhad, Iran
author
text
article
2021
per
There is an important discussion among jurists on how to order about postponing debtor that requires a careful look at the prorogation, an examination of the correct meaning and an explanation of its judgments and effects. Proposing a critical-descriptive method and stating a clear definition, the present article seeks to approach this view that a postponing debtor is the one who postpones his debts by hiding his property and not presenting it to the judge for sale and payment of his debts. This definition does not apply to the debtor with an overt property who only refuses to pay his debts. After expressing the exact meaning of postponing debtor, the study divides prorogation into three types of prorogation in real estates, property and rights. However, by prorogation in the words of jurists, it is meant financial debt. Therefore, in order to punish a postponing debtor, the ruler should first blame him in language. The next step is to punish him with beatings. And then if he continues to insist on prorogation, he should be imprisoned until he pays his debts. The ruler or the judge can also add some additional effects to this matter such as his legal privation, prevention of his traveling, not accepting his testimonies, and receiving damages due to prorogation.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
939
968
https://jorr.ut.ac.ir/article_76377_9bd0a163b3f7d4ada6e767b42f595f8e.pdf
dx.doi.org/10.22059/jorr.2020.294748.1008680
Exploring the Ruling of Martyrdom Operation with Emphasis on the Evidence of Its Quranic Verses
Seyyed 'Ali
Hashemi Khan'abbasi
Assistant Professor, Department of Theology and Islamic Studies, University of Agricultural Sciences and Natural Resources, Sari, Iran
author
Somayyeh
Keliji Kordkalaei
Student of Seminary for Women, Babol, Iran
author
Mahmoud
Abutorabi
Assistant Professor, Faculty of Quranic Sciences, University of Quranic Sciences and Studies, Amol, Iran
author
text
article
2021
per
Holy war (jihad) in the cause of Allah is one of the pillars of Islam. Islam is a school in which all the people have been called as the servants of Allah and honorable to each other. In order to remove all kinds of dominance and sovereignty of the tyrants, He has opened the door of jihad. In order to realize the defense that Muslims are required to undertake in any situation, it is necessary to take into account the means and methods of defense appropriate to each time. Defending against the aggressor in the absence of suitable military facilities takes on a particular form, and it is a martyrdom operation in which one kills the others while he is sure about his death. Because of the apparent similarity between martyrdom operation with suicide attack, some people disagree with it, and call it self-slaughter. Therefore, investigating jurisprudential and religious texts, and studying the jurisprudential evidence and principles of the proponents and opponents of martyrdom operation, this research seeks a clear jurisprudential ruling of the martyrdom operation. Using an analytical method and studying and surveying jurisprudential books and other different researches, this research has concluded that the martyrdom actions have legitimacy. Therefore, martyrdom in the cause of Allah does not mean suicide, and due to the reasons given and because of the difference in intention and purpose, it is beyond the scope of the issue.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
969
996
https://jorr.ut.ac.ir/article_76810_78573fed4486648bda8c2bb2ba7723ea.pdf
dx.doi.org/10.22059/jorr.2020.283816.1008486
The Nature and Effects of the Additional Conditions
Seyyed 'Ali
Alavi Qazvini
Associate Professor, Faculty of Law, College of Farabi, University of Tehran, Qom, Iran
author
Ja'far
Ramazani
Ph.D Student, Private Law, Faculty of Law, College of Farabi, University of Tehran, Qom, Iran
author
text
article
2021
per
The additional conditions are relatively new legal institution that have a special place in today's complex transactions and are based on the principle of autonomy and freedom of contract used by individuals in contracts. Islamic jurists and legal scholars have different views on the nature, validity, nullity and effects of these terms. While some regard them as basically null and void or as elementary conditions, another group regards they are binding like conditions stipulated in the contracts. Reviewing the nature and effects of these types of conditions and relying on absolute jurisprudential principles, this study proves that are binding terms and conditions.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
997
1024
https://jorr.ut.ac.ir/article_76811_3511a21e87de1360a998c9b9dd2dff91.pdf
dx.doi.org/10.22059/jorr.2020.293228.1008660
The Method of Thinking and Inferring of Separation School in Comparison with Traditionalism
Ma'sumeh Sadat
Farahi
Ph.D Student, Jurisprudence and Principles of Islamic Law, Faculty of Theology, University of Qom, Qom, Iran
author
Mohammad Javad
Heydari Khorasani
Assistant Professor, Faculty of Theology, University of Qom, Qom, Iran
author
text
article
2021
per
The school of separation is a new school. It is considered by some scholars to be the continuation of “Learning School of Khorasan” or “Learning school of Ahl-ul-Bayt (AS)”, which began at the time of Mirza Mahdi Gharavi Isfahani, but not a new school. It is based on the idea of introducing the Holy Quran and the Sunnah as the only sources of knowledge. The school of separation is considered by the opponents as the new variation of traditionalism, because its emphasis on citation to the appearance of the Holy Quran and the Sunnah as the only sources of knowledge reminds of the promotion of externalism. There are two basic differences between two schools of separation and traditionalism. First, the separation school, contrary to traditionalism, accepts the function of wisdom in some stages. Second, it does not deny ijtihad and principles of Islamic jurisprudence (Osul) as traditionalism does, even if they result in the limitation and weakening of the principles of Islamic jurisprudence. However, the most common undeniable characteristic of these two schools is textualism and their emphasis on the citation to the appearance of the verses of the Holy Qurans and Islamic traditions.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
1025
1054
https://jorr.ut.ac.ir/article_76809_b43ad31ba082b2314bb5aec7d31d1623.pdf
dx.doi.org/10.22059/jorr.2020.297734.1008722
Jurisprudential and Legal Review of Qasamah
Amir
Ahmadi
Assistant Professor, Department of Law, Payame Noor University, Tehran, Iran
author
text
article
2021
per
In Islamic jurisprudence and law, Qasamah has been stated as one of the proofs of the lawsuit in crimes such as murder, wound, and amputation. Regarding the collection of the traditions of the infallibles and also the historical background about Qasamah, the doubt and the denial of any jurist and lawyer in this jurisprudential establishment, in which Qasamah is the reason of proof, seems unnecessary. Therefore, this research aims to examine the question of why the Imams (AS), while strongly emphasizing the consolidation of Qasamah and the expressing its irregular nature and the likelihood of establishing Qasamah as a legal reason, have been restricted Qasamah to specific cases. In addition, this research studies the evidences of Qasamah documentation and analyzes the possibility of the reason for its rejection, as well as further deduction in the traditions. It should also be mentioned that the research does not study the conditions of the lawth and the number of oaths necessary for murder, wound, and amputation of the organ. The result of the research shows that Qasamah is not a reason of proof. The problems and doubts about the implementation of Qasamah have been explained in this regard. Therefore, it is suggested that the legislator carries out the necessary examinations and makes the necessary changes in the Islamic Penal Code.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
1055
1076
https://jorr.ut.ac.ir/article_76808_2b97157e1a9530c1f1b1efe93658b867.pdf
dx.doi.org/10.22059/jorr.2020.297816.1008852
Analysis of the Legal Duty with Regard to Inequality of Testimony;
A Solution Based on the Interpretation of Words in the Context of Their Formation
Mohammad
Salehi Mazandarani
Associate professor, Faculty of law, University of Qom, Qom, Iran
author
text
article
2021
per
The authority of Bayyinah, i.e. the testimony of two righteous and just persons, is a jurisprudential necessity; however, there is disagreement about the basis of the authority of Bayyinah as to whether it is a matter of intent or proximity to Allah or about the number of witnesses as well as the gender of witness depending on the nature of dispute. In recent decades, equating the testimony of two women with the testimony of one man in the verse 282 of the Sura Al-Baqarah, due to women's forgetfulness and based on some narratives indicating their rational imperfection, has caused a lot of controversy. The question arises here as to what is the reason behind the inequality of testimony of woman and man and how the provisions of the above-said verse and narratives are justified? Regardless of the contradictive answer of accepting the testimony of one woman in certain cases, the authors will say in a descriptive-analytical study, far from unconventional interpretations: First, in jurisprudential literature, witnessing and testifying are not considered as rights to cause a defect in women’s rights. Second, testimony must be about tangible issues and it doesn’t relate to the intellect. In addition, the narratives containing the rational imperfection are contrary to verse 282. Therefore, it is necessary to consider the words in the context of their formation. Considering the evidence in the text of the narratives, the meaning of intellect is “reminding” and "ability to manage and administer the affairs which is an adventitious matter and the result of acquiring knowledge and experience”.
Religious Researches
University of Tehran
2008-8388
17
v.
3
no.
2021
1077
1102
https://jorr.ut.ac.ir/article_76812_2629459927e6d2f0e6ad2b28f11285e3.pdf
dx.doi.org/10.22059/jorr.2020.301013.1008795