Jurisprudence and Fundamentals of Islamic Law
Year:2016 | Volume:49 | Issue:1 |Papers Count:10

Delivery in the Iranian law has two specific and general meanings. The strict meaning of delivery is to hand over the substance to another person. But delivery in its broad meaning includes handing over of substance, interests, and action. This broad meaning of delivery is almost synonymous with performing contracts or doing the obligations of contracts. The Civil Code of Iran has mentioned the delivery rules governing or performing the contracts sporadically. Volition has no role in Essence but is only effective in the case of a general substance. The customer shall be obliged to apply the necessary permission to create the illusion that in such cases delivery is a legal action. Foreign law is unable to identify a general and credit obligation because the general substance’s sale isn’t given possession but has been considered as an obligation. In Islamic law and religious jurisprudence, ownership in its general sense has been accepted, general substance’s sale is given possession and general substance’s delivery is a legal incident.

With the development of e-commerce in the recent couple of decades, one of the newly-emerged subjects in global communications and virtual space is hoarding in e-commerce. Hoarding is entailing the common essential commodities in order to expect the prices to increase; and in jurisprudence its scope is limited to the four cereals, oil, and edible oil. Entailing and storage of public essential needs, intention of increasing prices during the shortage of goods, and creating shortage of commodities are the criteria for its occurrence. Now, some relevant questions are, “Is electronic hoarding the same as the expression of hoarding common in jurisprudence?” “What will be the verdict?” “How does this kind of hoarding occur?” “Is data and information regarded as the property?” “What is the penal punishment in this kind of hoarding?” In brief, hoarding in virtual space is the same as hoarding in the material space if the condition and element of hoarding occur and the hoarders has perpetrated a forbidden and unlawful act and the court can force the violator to defilterize the sale-system, to activate the software, and to share the information. He must be accountable to the customers’ demands and decreasing the prices.

Each person’s style of thought and cognition is formed in the frame of time and place conditions in a way affecting his deductions. Changes and improvements of jurisprudence are caused by this effect. Common parlance has gained lots of attention by jurists since many years ago. Ibn Idrīs’s full understanding of his time‚ knowing common parlance‚ tending to solve problems, and stating the affected sentences had him try to break the condition of dullness and inertia governing jurisprudence as a bold jurist and establish a new jurisprudence. He could show the role of time and place in the jurisprudent changes by describing his time as a period of sterility of reasons and exhaustion of minds and objecting to his ancestors’ opinions. According to him‚ common parlance is an action which is common among people and should be continued. It contains the domain of action and words. He has mentioned two types of applications: the independent one such as detection of sentences and instrumental one for common parlance. The origins of these common parlances are different.

The idea of separation of powers has been recognized as a model which was first developed and favored by Thomas Hobbes, John Locke, Montesquieu and Rousseau and was progressively adopted by political systems and constitutional law of various countries. Few other countries can be found today that their structure – although seemingly – are not organized on the basis of separation of powers. This paper attempts to investigate Iran’s position on the issue of separation of powers. Since the political system of I. R. Iran has been inspired by the political system of Islam, then the most important question must first be answered here is whether the separation of powers is adopted by the political system of Islam considering its basic principles. In addition to theoretical and practical problems this theory faced with, the present paper proves that the political system of Islam does not validate the real philosophy of this doctrine. Though, I. R. Iran had authenticated the separation of powers but established its principles based on its national needs. The separation of powers which is officially recognized by Article fifty seven of Iran’s constitution is consistent with Islam’s political jurisprudence and the rationale governing Western doctrine of separation of powers failed to impose itself on I. R. Iran’s model of separation of power.

The rule of iḍṭirar (desperate necessity) indicates an order which ceases the previously issued orders on the condition of proving the needfulness and indigence of a convicted. Rationally speaking, however, such an order is not far from flaws in an absolute term and this order to be carried out is bounded in time and quantity. Although this is a principal rule of jurisprudence, it is neglected in research. Therefore the current research is an attempt to bring it to light in details. The results of the present research have shown that from the viewpoint of jurisprudence, the levels and justifications of this rule are different. Also, there is contradiction of views regarding its decision and its permission and many other issues of religion.

This Islamic rule is one of the most important rules in order to protect legal system and prevent it from disorder in social human life. The meaning of this rule is that, there is no law devised that violates the order of human life. The most important evidences for the validity of this rule are Islamic tradition and wisdom. This article shows the status of this subject in purposive and governmental jurisprudence and explains its conditions and the effects of its application in Islamic law. Finally, for the first time it seeks with inductive method for the application of this principle in Islamic law and with regard to many evidences and by considering scholars’ opinions (fatawa) proves that we could consider this rule as an indispensable rule governing social Islamic law and rely on it.

Sometimes disagreement in regards to reading a Qur’ānic verse has resulted in a paradoxical judgment and this occurs in traditions, as well. But the way in which one can consider paradoxical verses arises from the so-called ‘Alājīyah traditions. The question that arises here is as follows: can the rules presented by these evidences be also extended to the paradoxical readings? If so, what are their preconditions? What was the Shi’ite uṣūlī s and jurists’ approaches towards these rules in regards to paradoxical readings? This research tries to explain necessary conditions of the rules of ‘Alājīyah traditions concerning paradoxical readings and how to implement these rules in paradoxical readings. The solution of two conflict readings like that of conflict traditions has been considered on the basis of ‘Alājīyah traditions. Thus, combination, preference, and adoption are some solutions which have been entered to conflict readings by uṣūlī s. Shi’ite jurists, however, have shown caution and considered these solutions along with other juridical reasons.

Guardianship of children and observation over their education and various issues until they reach the age of puberty and development has been studied in Shi’ite jurisprudence under the title of custody (ḥiḍānat). Due to the importance of the above matter, different debates have been done with regard to the time of granting the custody of a child to one of the parents. Having been done with descriptive-analytic method, the present study covered various ideas and opinions of the jurists and came to the following conclusions: Firstly, the custody of children is a collective obligation (wājib-i kifā’ī) of the parents in order of priority and the mention of a specific age and time in narrations does not concern the exclusiveness of the child’s custody to one of the parents and his/her obligation. Therefore, the transfer of custody with the consent of the parents and their eligibility or in suitable and appropriate condition would be possible and it mainly indicates the priority in assuming the said obligations. Secondly, the priority of the mother for the custody of her child, whether a boy or a girl, is until the age of seven.

Among the important elements of democracies are parliaments and legislatures. Parliament’s status and importance is such that each democratic system and state, should take it into consideration as a fundamental and vital institution. This requirement is also discussed in Islamic states. According to the principles of Islamic theological thought, before we can talk about Parliament and its structure in the Islamic state, we must prove the legitimacy of this institution. In order for the parliament and representatives to have the required legitimacy for having influence and participating in the structure of the Islamic state, some evidence is necessary to exist for them in the sacred religious law. With reference to Islamic sources, the legitimacy of the representatives’ institution can be proved through reliance on extending the legitimacy from jurists to representatives, the assembly system in Islam, the necessity and obligation of public supervision and the existence of similar and legitimate Islamic-juridical institutions.

In all legal systems, it’s essential to know the nature of fault due to the absolute responsibility of a salesman or producer, on the one hand, and the possibility of receiving compensation on the other hand. In Islamic law, this absolute responsibility is interpreted as ḍamān (indemnification); therefore, this ḍamān that is our subject of discussion in option of defect, is taken into consideration when preparing legal statements as well as in transactions. Thus by realizing the issue, that is, the defect and by expressing its properties and solving possible conflicts, it is made easy to enforce the propositions related to defect. This paper tries to review some criteria of defect, as well as pondering on its nature, and by presenting ideal criteria, facilitates annulment or correction of a deal and enforcing the propositions of option and receiving compensation or refund.