MAQALAT WA BARRASIHA
Year:2003 | Volume:36 | Issue:73 (3)|Papers Count:8

The legality of a financial compensation given to the creditor in case of non -payment of a debt in due time is a matter of discord. Before the Islamic Revolution, whether in case of loan or mortgage, the legal amount of this compensation reached 12%. After the Revolution, the Council of Guardians based itself on previous fat was to announce that such a claim was illegal from a religious point of view. But in fact, considering that this compensation is not an extra amount of money given in addition of the original loan, but a way to cover the losses created by the delay in refunding the creditor and a fine for not respecting the principle which stipulates that "the Muslims fulfill their contracts", this claim is legal and does not infringe on the rules and principles of jurisprudence.

Lawyers and specialists of fiqh consider unanimously that contracts can be invalidated if its conditions are illegal. It has been accepted by the civil law. The problem is to determine the exact conditions that can lead to annulment of the contract. Traditionally, basic reasons for annulment are: consensus (ejmā') renunciation to what is required to fulfill the contract, opposition to Qur'ān and Islamic Tradition, corruption, lack of necessary condition. None of these are free from critics. Recently, the two jurists Mohaqqeq-e Esfahānī and Mohaqqeq-e lravānī, proposed a new analysis of this problem, by linking annulment of the contract to the existence of two incompatible intentions in it. Because it is not possible to make the two intentions agree with each other, the contract is invalid. This papers aims to show the significance of the theory of these two scholars.  

One of the principles which governs penal jurisprudence is the "dar" (literally: pushing aside). According to it, an order cannot be issued to punish someone in case of doubt, whether this doubt concerns the prohibition of the act itself, the reality of the act, the responsibility of the defendant for this act, or the knowledge that the defendant had of this prohibition when he committed his act. The principle of "dar'" has its origins in sayings of the Islamic Tradition. The attribution of the sayings to The Legislator Šāre' is not proved; nonetheless, the multiplicity of the ways it has been transmitted, the unity of the sources relating to it and its relation with the objectives of The Legislator explain why this principle has been accepted by a vast number of jurists (faqīh), who used it in their commentaries and to enforce the penal texts. As long as the doubt concerns the existence of a text, or the meaning of a text or its relation with the case the judge deals with, it remains only a matter of commentary. It favors the defendant for the punition he should get. In fact, the principle of "dar'" resembles very much to the principle found in traditional penal systems, that says that the defendant is to be given the benefit of the doubt when it comes to an ambiguous text; but, despite the success of this principle to protect the defendant, the "dar'" weakens the application of the sentence decided by the judge and therefore is open to criticism.

Religious obligations are to be performed in due time. The fast of the month of Ramdān is one of the most important cases, but fixing the exact beginning of this lunar month is a sensible issue. The main problem is to know if astronomical calculation is reliable to determine the apparition of the crescent in the sky. Opposition to this method is as ancient as the method itself, but as time goes by, their supporters grew always stronger.Opponents to astronomical calculation base themselves on the revealed text, the principle of consensus (ejmā '), the principle of suppression of a fault (raf '-e hraj), the preference given to certainty rather than presumption (tarjihe qat' bar zann), and also the lack of reliability of astronomical calculation. On the other hand, supporters of this method also base themselves on texts, the preference given to certainty rather than presumption, the imprecision of the crescent to the naked eye and the possibility to use analogy. Their arguments seem to be correct and admissible, especially if calculation is used to determine when the new moon cannot appear rather than the contrary.

This essay tries first to define life as an acceptation of the spirit.Then, the meaning of "hayāt-e mostaqarr" (lit.: stable life) and "hayāt-e geyr-e mostaqarr" (lit.: stable life)is investigated according to Islamic jurisprudence, and compared to the case of cerebral death, which is also quoted in legal texts. In the state of "hayāt-e geyr-e mostaqarr", the body is not anymore able to accept the spirit; but in case of cerebral death, although the brain is disabled, the body is still able to accept the spirit because the blood circulation and the respiratory apparatus are still functioning, either artificially or naturally. Therefore, a person in a state of cerebral death is still considered as alive and legal dispositions concerning inheritance, testament, religion, marriage and crime apply to him, whereas someone in state of "hayāt-e geyr-e mostaqarr" is considered as a dead person.

Methodology is a major issue in all the fields covered by science. In Islamic jurisprudence, the jurist who uses his personal judgment (i.e. the mojtahed) rely on the principle of inference (estenbāt). This method can give great results, but they will be even greater if the mojtahed had himself a specialization in the domain concerned. This kind of specialization is not new: it was called (tajazzī) before and its principle has been accepted by most of the shi'i and Sunni authorities. As sciences are divided in numerous branches, so must be the mojtaheds. The more science expands, the more it requires specialization. And such a specialization is at the same time the cause and the consequence of the progress of science. This new trend is not contradictory with the principles of Islamic jurisprudence.