Jurisprudence and Fundamentals of Islamic Law
Year:2011 | Volume:43 | Issue:2|Papers Count:8

Usurpation­ means possession to another right by force (Art.308.civil code).There is not doubt that usurper is liable for the usurpation of corpus of property, but there are different opinions about usurpation of the benefits of property in Islamic law and Iranian civil law. Some of jurisprudents and lawyers believe that usurper is not liable for benefits, whether they are joined or separate benefits. However, some of jurisprudents and lawyers believe that usurper is liable for joined or separate benefits. There are different opinions about the base of responsibility of usurper for the benefits of property; some of jurisprudents and lawyers believe that the base is the rule of "Al Kharaj Be Alzaman", but some have the idea that the "Yad" rule is the base of responsibility. In this article, the responsibility of usurper for the benefits of property and its base in Islamic law and Iranian civil law has discussed. We can see that usurper is liable for joined or separate benefits and the base of his responsibility is the "Yad" and “Itlaf” rule.

Contrary to majority of Islamic jurists, those who believe in singularity of reality and a certain rule in disagreement cases, in opinion of some of the scholars, the truth and the rule is plural and all of the jurist (Modjtahedin) are just. Imam Mohammad Ghazzali is one of these scholars. In his opinion, the theory of proscription (Takteah) is incorrect and contradictory. With the exception of cases included in definitive evidences, the Modjtahid’s conjecture or belief is God’s rule too.There is no real or certain rule before his jurisprudential reasoning.Ghazzali’s arguments, in summary, are: rational and Islamic evidence, relativity of circumstance, individual interests, ancestor’s custom, contradiction and weak arguments of the theory of proscription.

Cases where Bayt al-Mal is responsible for payment of compensation are sometimes accompanied by intensification of compensation. The question is that whether Bayt al-Mal should pay the intensified compensation in such cases. This question has not been answered in juristic and, legal texts. In addition to causing difference in opinions, it has caused courts to doubt generalization of the intensification to Bayt al-Mal and even sometimes to make dual judgments in this connection.Investigating the proofs of intensification, on the one hand, and those of responsibility of Bayt al-Mal on the other, the present essay concludes that those proofs are general and absolute without being qualified and particularized. Another proof for responsibility of Bayt al-Mal in such payment is to believe in an independent reality for the intensified compensation.Such problems as contradiction to the principle of individualization of punishments and also necessity of precaution in expending Bayt al-Mal are dealt with in this essay as well.

Instinct of avidity and avarice in the nature of humankind can be studied in different fields. One of them is hoarding. It is one of important problems that societies are stricken to it and its consequences. Jurists debate about hoarding and its absurdity in jurisprudence repeatedly. Such avarice act should be forbidden by government, certainly accordance with undoubted fundamental rules for preserving of right of possession and rights of society. Social and governmental duty of government request that force hoarder to expose and offer goods to people whit standard price. If the hoarder continues his act, conversion would the duty of government. In this research, we will study the juridical dimension of conversion with attention to fundamental custom and intellect.

Islamic jurisprudence is one of the most important issues in the field of Islamic studies. Islamic jurisprudence has been studied by numerous Western scholars. Some of them assumed that Islamic system of law adopted Jewish or Roman system of law and in many cases based on them.The origin of Islamic jurisprudence is also one of the controversial issues in this respect. Some western scholars, in accordance with Muslim scholar’s view, believe that Islamic jurisprudence is derived from Quran and Sunna (saying and deed of the prophet) and others claim that Islamic jurisprudence initially is infused by companion’s opinion and later jurists who were influenced by non-Muslim cultures. It is shown some examples of simulation between Islamic law and Jewish or Roman law. Muslim scholars assert that all divine religions guide humans and therefore they have the same principles and same ritual and civil maxims. On the other hand, they also have shown some differences between Islamic injunctions and Jewish or Roman system of law. In some cases such as the dictum of the prophet; ”Al-walad li-l-firash wa –li-l’ahir al-hajar ”, Muslim scholars have shown the currency of this maxim in pre-Islamic Arab traditions. It means that it is based on pre-Islamic practice not upon Jewish or Roman laws.

Damage control doctrine requires the party incurring damages due to another party’s breach of contract or damaging action to take necessary measures to reduce damages or to prevent damage expansion.The most suitable doctrine justifying control doctrine in Islamic jurisprudence and consequently Iran' s law is the well-known Jurisprudential doctrine of La Zarara wa La Zerar fi al-Islam “there is no detriment and detrimental act in Islam”. It is noteworthy that if the responsibility of damage control is not born on the petitioner or the person incurring damages, the result shall be damage to the respondent which is not acceptable based on the latter doctrine. Although this doctrine has not been explicitly accepted in Iranian Civil Code, principle 167 of the Constitution and jural and legal literature confirm it. Also, Iranian legislator has accepted La Zarar doctrine implicitly in some legal literature.

The Islamic economic system, in order to implement justice and prevent the emergence of wide gaps among social classes, prohibits wealth accumulation (Iktinaz), and the Holy Qur'an explicitly promises punishment for it. Many Fughaha and commentators of the Holy Qur'an maintain that the forbidden Iktinaz only is established by accumulating wealth and avoidance of paying its Zakat.However, there are others who believe that the prohibition set in this verse goes beyond that and includes those who pay Zakat but refuse to perform other financial obligations towards the society. In this paper, after explaining the relevant theories, it is argued that in spite of the majority viewpoint, the forbidden wealth accumulation is not limited to refusing payment of Zakat but this prohibition also includes neglecting other financial obligations and failure to heal the economic shortcomings of the society. This paper, briefly, studies the legal status of wealth accumulation in Shiite jurisprudence and Sunni schools.

The most effective and important competitions in social life take place in the area of economic activities. In order to strike a balance among competitions and being competitively potential, equal ability plays a significant role. In the modern world, this factor is in close connection with comparable state of information and knowledge. Taking this fact into account along with the duty of Islamic government in maintaining a fair economic condition in the society and then giving a clear description of public information system, with full examination of the respective commandment as to the economic opportunities, we will proceed to mention cases such as necessity and veneration of public information system entity. Afterwards, we'll describe the appropriation of information by stating the reasons for recognizing discrimination in public information system and explain the required circumstances as to the opportunities through proper means of dealing with economic opportunities. Finally we conclude that, firstly public information system entity by nature and as to economic opportunities is not only permitted but liked and popular according to religious tradition and just cases with logical reasons are exception. Secondly, the public information system appropriation is not haram (forbidden) by nature, but based on the source of information and their methods of providing are included in different religious precepts.