ضمان العاقله و الإیرادات المطروحه حولها (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
کما ثبت فی الشریعه بالأدله المختلفه، فی حالات معینه، کقتل الخطأ المحض مع حصول شرائط خاصه، جعل الشارع الإسلامی، مؤسسه العاقله مسؤوله عن دفع الدیه. وهذا الأمر لیس بین علماء الإمامیّه إجماعیّ فقط، بل مجمع علیه عند جمیع المسلمین. لذلک لا شکّ فی أصل مشروعیته. ولکن تعرضت هذه المؤسسه للنقد و هجوم الشبهات کثیراً ما، عبر التاریخ. لذا، ونظراً لأهمیه الأمر فی دفع الشبهات، أنشأنا هذه المقاله علی حده لشرح الشبهات والردّ علیها بدقه. یمکن تقسیم الشبهات حولها إلى فئتین عامتین، الأولى هی نقد أصل فلسفه تشریع هذه المؤسسه وتعارضه مع بعض المبادئ والأصول العامه التی استخرجت من بعض آیات القرآن؛ التی حاول الفقهاء للإجابه الیها علی طول التاریخ. والفئه الثانیه من الشبهات تدور حول انتقال هذه الأحکام من زمن صدر الإسلام إلى الزمان والعصر الحالیین، بحیث یکون لدى عدد کبیر من علماء الحقوق المعاصرین وحتى بعض الفقهاء المطلعین على القوانین فی انتقال حکم هذه المؤسسه إلى العصر الحاضر شبهات ویقولون هی کذلک خاصه بالزمن السابق أولبعض الجوامع. فی هذه المقاله سیتمّ شرح الشبهات المذکوره والردّ علیها.Guarantee of the Al-Aqila Foundation and the proposed objections around it
The main root of Daman al-Aqila should be sought in the pre-Islam era and the era of ignorance as a symbol of the tribal and tribal era of the Arabs. During the Jahili period, the tribe was of great importance to the Arabs as a broader institution than the family, so that the members of the tribe considered themselves to be of the same blood and, accordingly, they bore the responsibilities of their fellow tribesmen. In today's terms, it can be said that the tribe was a legal entity independent of its members, which was created on the basis of common blood. Because the religion of Islam, which emerged after this period of ignorance, fundamentally changed the social customs that are morally, religiously and . . If it is in accordance with justice and benevolence, he respects it and tries to expand it. When faced with such a problem, it can be mentioned under the title of cooperation of tribes and clans. Based on the good and desirable things in the society, he approved it and signed this customary and moral ruling without creating a new establishment. Of course, after the signing of this ruling, it seems that the ruling is not appropriate, and it is better to observe conditions and restrictions while signing it, so that this principle of cooperation and cooperation can continue to exist in a more legal manner and with a clear framework under the title of a wise guarantee. give We can see that during the legal developments regarding the responsibilities, the responsibility of the wise person in Islamic jurisprudence and the Islamic Penal Code, which is compiled based on Sharia and religious sources, has been limited to the cases that after observing them, the responsibility of the wise person in paying the dowry is established. Aqila is derived from the word (Aql) and means to fasten and fasten. For this reason, the rope that is used to tie is called aqil, and therefore the relatives of Jani are also called aqil, who with aqal used to take the camels (as a ransom) to the house of Wali Majni and tie them. But in jurisprudential terms, those who are considered relatives of the murderer through the father, such as brothers, uncles, cousins, and their children, even if they are not heirs when paying the dowry. Women, children, and those who are insane or poor when the payment is due are not considered sane. The higher the fathers are and the lower the sons are, the wiser they are, and if there are no relatives, the wiser is the dependent person, and then the guarantee is the Jarirah, and then the Imam (a.s.) who pays the diya from the Treasury. As it has been proven in the Sharia with various evidences, in cases such as pure wrongful killing under certain conditions, the Islamic Sharia has made Al-Aqila institution responsible for paying the ransom. This matter is not only unanimous among the scholars of the Imamiyyah, but is unanimously agreed upon by all Muslims. Therefore, there is no doubt about the origin of its legitimacy. However, this institution has been criticized and attacked frequently, throughout history. Therefore, given the importance of the matter in raising suspicions, we created this article separately to explain and respond to suspicions accurately. The suspicions about it can be divided into two general categories. The first is a criticism of the origin of the philosophy of the legislation of this institution and its conflict with some general principles and principles that were extracted from some verses of the Qur’an; Which scholars have sought to answer throughout history. The second category of suspicion revolves around the transfer of these rulings from the time of the beginning of Islam to the current time and era. So that a large number of contemporary legal scholars and even some of the jurists who are familiar with the laws regarding the transfer of the ruling of this institution to the present era have doubts and say that it is the same as it is specific to the previous era or to some societies. In this
تبلیغات
