MAQALAT WA BARRASIHA
Year:2005 | Volume:37 | Issue:76 (3)|Papers Count:17

The institution of "Dispute Settlement Council" is established 011the basis of executive by-law of article 189 of the law of the third economic. social, and cultural development of the Islamic republic of Iran in order to reduce reference of people to courts as well as to develop mass participation in settling local disputes and resolving affairs of non-juridical nature or of a less complication. Investigation of various dimensions of the said executive by-law and more familiarity of the society with it is influential in both institutionizing the council and participation of people. Historical background. analysis of the concept of "Dispute Settlement Council" and foundations of its legitimacy. and expounding strength and weakness of executive by-law of the council from juristic as well as legal viewpoints arc among topics discussed and investigated in the present essay.

As an influential Shi’a jurist, Ibn Abi ‘Aqil created some works which, after some centuries, were merely readable as "old" writings without presenting any lucid information concerning context of positions and discourse of writing time. That is why a clear shortage is seen in accurate understanding of his juristic thought a point which is true not only concerning recent centuries but regarding Hillis of Islamic middle ones. It is attempted in this research to present a ground for analysis of Ibn Abi ‘Aqi’s remaining position as well as reconstruction of his fundamental thoughts through his preoccupation with the school of Shi’a theologians of the first half of the fourth (hijri) century. Jurisprudence of school of theologians, including that of Ibn Abi ‘AqiL is very close to Mu’tazili earlier jurisprudence. Expansion or use of Quranic verses and belief in non-authority or khabar al-wahid is the characteristic of his dealing with narrative proofs. He is strongly against qiyas and the apparent mode or intellectuality in his jurisprudence is decreasing the scope of narrative sources, increasing the scope or rational principles, and, as a result, decreasing the scope of subjects judged by Shariah.

The unlawfulness of abortion is one of the primary and obvious percepts that the Book and Sunnah explicitly affirm it, but like all other primary percepts if certain secondary topics occur, abortion may happen to be lawful. Certain secondary topics such as distress and constriction or under the legitimate defense or other topics the topic of the unlawful percept of a subject may change. One of such cases pertains to the case of pregnancy that may prompt to the death of mother or threat her health or the birth of a baby may result in fatal troubles which will be tantamount to distress and constriction of parents or baby. As far as the lawfulness of abortion is concerned there is no difference between before or after the entrance of the spirit in the body. For the difference between the two stages is the difference between potentiality and actuality of man. Embryo before the entrance of the spirit is tantamount to a perfect man and possesses all percepts of it. That is why abortion is unlawful and is like embryo after the entrance of the spirit. Though it may not be like suicide. The problem of two secondary rules from two sides (embryo and mother) due to conflict is soluble. For the difference of two secondary rules like distress and constriction is not contradiction. But two judgments of unlawfulness of abortion and obligatory of preserving mother’s life is like a conflict. From religious point of view there is no difference between them but in practice there may occur a conflict. Therefore, priorities should be ascertained and in the case of equality mother should be free to choose abortion.

The acknowledgement of bankrupt person in financial and other matters is one of the important problems of bankruptcy. Some of the scholars are of the view that the acknowledgment of a bankrupt person in ayn exact and dayn (debt) is effective and state that muqirlah shares with ghurma. But other scholars believe in otherwise and some others hold that we should separate the acknowledgment to ayn and dayn.Since in the rights of Iran the acknowledgement of a bankrupt person against the diyan is not effective. in this article the attempt have been takes with reference to the views of Muslim jurisprudents concerning the issue of bankrupt and their proofs and with comparison to other enacted laws to explain that how for the effectiveness or the acknowledgement of a bankrupt the moral and psychological characteristics of a bankrupt should be taken into consideration.

Methodological study of the works and views of the great faqih, Muhaqqiq Ardabili can pave the way for explaining the development of advanced ijtihad alongwith considering the requirements of time and place. His fiqhi characteristics marks a comprehensible method some or whose aspects will be discussed in this article under the following topics:independence of opinion and centrality of rational demonstration.doubting and preparing for reflection on fiqhi issues, harmony in scientific and practical precaution, avoiding useless discussions, and observing scientific morality and modesty.

Qasamah is one of the ways of proving murder or any injury and hurt on the body which can be implemented in the case of lawth (suspicion).That is, if a murder take place and nobody undertake it and the blood - wit claimed a person or a group of people for murder but failed to prove it with evidence and there occurred suspicion, then the claimant along with his relatives can take fifty oaths in the case of intentional murder and twenty five oaths in the case of non - intentional murder or error and in this way can prove their claim. Since the requirement of the principle in the case of suspicion in the realization of the subject of qasamah is absent and on the other hand the oath of the claimant according to the rule is evidence to the claimant and oath to the denier.it is against the rule. Therefore the author of this article tries to define qasamah and lawth and their legitimacies, then proceeds to study their natures, qualities, quantities, quorums and conditions.

According to the article ten of civil law of Iran, those private contracts that were concluded by certain people and are not against law, arc effective. Lawyers relate this article to the principle of the "Freedom in contract" by means of which they affirm the validity or uncertain contracts. In Islamic jurisprudence jurists and Islamic lawyers are of different opinions concerning the acceptance of the principle of non - restriction of contracts. The hypothesis of the present article is that one of the juristic foundations of uncertain contracts along with other foundations such as refereeing to the proofs of contracts general, can be a proof for the validity and influence of primary conditions. To prove this the author first tried to pose the proofs of those who do not believe in such conditions and gave answer to the relevant objections in this regard. Then he propounded five proofs for the validity and effectiveness of primary conditions. At the end it is added that if primary conditions possess two sides and one bilateral contract, it is a kind of contract which can be other than the known contracts in jurisprudence and law, while possessing the general conditions of contracts. In this way other proofs of conditions like believers should fulfill their conditions" can be a basis for the validity and legitimacy of uncertain contracts.

From the earliest time of Shiite Jurisprudence, the right 10 terminate a contract has been recognized as a remedy if the contract is no longer possible to be carried out. Two issues are however controversial between the Shiite jurists. The first issue is whether the impossibly of performance could lead to the automatic termination of the contract or create a right for the aggrieved party to terminate the contract. The second issue is whether such a right is independent from other rights to terminate. In this article, first the instances where such right is provided will be discussed. Then the impact of impossibility to perform a contract on the contract will be discussed. Third, the independence of such a right parallel to other rights to rescind the contract will be discuses.

The issue of adam al - naf (non - profit) is one or the important issues of jurisprudence and Islamic law and today it can help to solve many of juridical problems. The common view of shii and sunni scholars is that non - profit cannot lead to liability. This article is an attempt to examine the definition of usurpation as put forward by muslim jurisprudents and showed that their views and definition or usurpation had a direct effect on development of this well-known view. On the basis of the definition that gradually become popular among jurisprudents concerning usurpation since fifth century (A.H) onward no one considers non - profit as the extension of usurpation and liable.While according to the author of jawahir, basically usurpation laiks religious or fighi concept and definition and there is no need to try to find such concept in religious law. Thus fuqaha’s religious or fiqhi definition a part from usurpation lacks religious basis and does not entail commitment. Therefore, return to the common and literal definition is the logical solution of this problem, as the author of jawahir also stated this. This return is taking place slowly and parallel to such change the views and precepts of jurisprudents concerning non - profit are in a state of change.

According to the sources of jurisprudence and civil law, one of the basic conditions for the correctness of every transaction is that both sides of transaction should be adult. The main question that may arise is that what is the view of jurisprudence and law about the usual transactions that today are being carried out in our society by immature people? This article is an attempt to make a critical study or the views of jurisprudents and lawyers and their proofs in this regard, and finally with reference to the principles and rules of jurisprudence and law and considering the place of custom in transaction the author tried to work out a logical and justifiable solution for such transactions.

Following verse of the Quran constitutes the main reason for proving the rule of the negation of the way: "And never will God grant to the unbelievers a way (to triumph) over the believers." (4:141). This verse contains in itself three theories of attending to the Hereafter, inferring "proof and demonstration" from the term" the way", and negating grant which prompt to domination. This verse non - delimitately is applicable to the third theory and it is acceptable to take recourse to the verse. concerning the in charge of executing this rule, it should be kept in mind that this discussion is referential rather than judgmental or thematic and this view require an exact examination, for it possesses a way rather than subject and common sense can not be authority in this regard. Reason as an independent source is a way of including the rule. Time and place and their effect on cultural differences are important in determining the extension of the rule. The reason for negating the way governs the proof and primary precepts governs and there is no conflict among them. But this rule due to many elements can be particularized.

The present research is to expound and analyze juristic proofs of a fatwa by Imam Khomaini. The fatwa is concerning prodigality in the use of water and electricity including two precepts of prohibition and liability. Since that fatwa can be applied to similar cases such as gas on the one hand and plays a significant role in economic development of our country on the other, exposition of proofs of both precepts becomes necessary. Four reasons for prohibition and three juristic rules for liability are presented here. In this essay it becomes dear that such a fatwa is not a secondary precept; rather, it is based on juristic rules and proofs and is a, primary precept.

To attain the authority of any text including revealed or non - revealed constitutes the first condition for the validity of the understanding anding of the addressee. This act depends on certain elements such as asurity for the subsistency of the text with out any change or alteration in its parts. There are three methods for obtaining the authority of the text of the Quran in the context of subsistance as follows: 1- refuting any change in the text, 2- preparing the change of the text, and 3- separating the parts of the text. The first method is the current method of two sects which is carried out through affirming the unchangebility of the Quran and negating the distortion of the Quran. The second method rulls out the possibility of the Quran through the infallible Imams who refer to the Quran. In the third method the authority of each part of the Quran separately will be attained. The first and the second methods have an old background. The third method was put forward in the 11th century (A.H) and then was expanded in recent century by the scholars of Ilm al - usul. To attain the authority of the text of the Quran is possible only through refuting the possibility of the alteration of the text and two other methods face serious challenges.

Among major discussions of practical principles in Shiite "principles of Jurisprudence" is the principle of Occupation (or precaution) which is used when one is certain of the existence of the compulsory task but has some doubt about what he has been commanded to do or to avoid. This practical principle cannot be found in the books of earlier Usulis being separated from "the principle of prohibition". The present essay pursues the issue from the earliest Shiite Usuli Books (in which no trace or the said principle can be found) and goes further and further in order to expound the gradual generation of this principle. It finally indicates that the starting point for the general notion of "doubt" and "practical principles" where in the principle of occupation or precaution is discussed is innovated by al-Shaikh al-Ansari and then adapted and enriched by all other Shiite Usulis.