نوع مقاله : مقاله پژوهشی
نویسنده
گروه حقوق انرژی و تجارت بین الملل ، دانشکدگان فارابی، دانشگاه تهران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Iran’s Civil Code, including Article 949, is derived from Imami jurisprudence, and that in cases of disagreement among jurists, reference is made to the authority of fame in fatwa. The central question of the present study is whether reliance on the famous fatwa in relation to the mentioned article prevents the exercise of desirable ijtihād. Desirable ijtihād refers to a dynamic form of jurisprudential reasoning that, through engagement with valid Islamic legal sources and grounded in law, evolves in response to changes in time, conditions, and human circumstances, thereby deriving new legal rulings for new issues. It embodies a moderate uṣūlī approach which, in the practical process of deduction takes into account the jurist’s awareness of new social realities as a factor influencing their understanding of the sources of ijtihād. Examination of the nature of fame in fatwa demonstrates that it belongs to the category of taqlīd (imitation) rather than a genuine method of legal reasoning. Accordingly, the author argues that applying desirable ijtihād is incompatible with the authority of fame in fatwa. Therefore, revisiting jurists’ ijtihād and amending this article to establish equality in inheritance in cases of exclusivity is a necessity for the realization of justice for women.
کلیدواژهها [English]
