Jurisprudence and Fundamentals of Islamic Law
Year:2018 | Volume:51 | Issue:1 |Papers Count:13

Among the factors that cause heresy are the denial of the necessities of religion and disrespecting them. What is meant by necessities of religion is those beliefs and instructions that are proved to all Muslims. In the present paper, while investigating the necessities of religion, the role of awareness in denying the necessities of religion by the denier is examined and it is concluded that the denier of the necessities of religion is considered as heretic when he/she is aware that what he/she denies is part of necessities of religion. Basically, the knowledge and awareness of the denier that what he/she denies is part of the necessities of religion is among the principal conditions of heresy. Then, the controversy among the Shi’ ite jurists whether the denial of the necessities of religion is an independent cause of heresy or the denial of the necessities of religion and the prophthood of Prophet of Islam are the requirements of heresy is dealt with and after quoting and examining the jurists’ opinions and their reasons, the second opinion is accepted. In this regard, if the denial of the necessities of religion is due to an existence of doubt from the denier, this is not only the cause of heresy, but his/her doubt should be responded and he/she should be guided.

In this research, we have tried to answer the question in a descriptive-analytic method that, considering the principle of territory competency principle of penal rules as well as protection of national governance, whether recognition and execution of foreign penal decisions in the governance territory of an Islamic country, specially Iran, is possible or not? The writers believe that to reply to such questions in view of Islamic law and considering Qur’ anic verses and narrations, we could say that considering the principle of interaction and permission for execution of rules of other Revealed Religions in the governance territory of Islamic government and ward off rule could be a justification for execution of foreign penal decisions. In Iran too, review of related rules and judiciary cooperation agreements indicate that recognition and execution of foreign penal decisions has been accepted limitedly and conditionally for cases such as transfer of the condemned, determination of losses caused by the crime.

One of the discussions that are studied in principles of jurisprudence is the nature of the reason stance in the cases of doubt on the existence of a binding obligation on the part of God. Contrary to the principles common among fundamentalists, two of contemporary fundamentalists, namely Ayatollah Ṣ adr and Ayatollah Muḥ aqiq Dā mā d, have considered reason stance as a necessary precaution in this regard, which the viewpoint of Ayatollah Sadr, known as the right of compliance (ḥ aqq al-ṭ ā ‘ a) theory. In this article, a comparison is made between these two explanations of the ḥ aqq al-ṭ ā ‘ a theory, and a series of facts about them would be proposed. Then, one of the most important criticisms about ḥ aqq al-ṭ ā ‘ a theory, i. e. the criticism of Ayatollah Amoli Larijani is explained, and it is also trying to respond to the proposed objections.

The role of time and place is one of the effective factors in interpretation of religious orders, and responsiveness to newly-raised legal issues is the achievements of time factor. One of the measures to terminate in a partner’ s defects is the damage that entangles the other partner due to matrimony. According to wonderful development of medical science to treat some of defects, which terminate the matrimony and to remove the appearance of some defects and contagious and dangerous disease, we encounter with some questions. This article seeks to find the response to these questions. According to evidence of damages in husband with the asexual, deathly, epidemic and dangerous defects by the husband, can the wife terminate the matrimony? By treating some of the sexual and asexual defects, won’ t the authority to terminate be disappeared? If one of the partners catches the newly-emerged, epidemic and dangerous diseases, can the other one terminate the matrimony? The aim of this article is to reply the above-mentioned questions.

The important question in the field of mandate contracts is that if one of the agents selected by the client or the former agent dies, will mandate of other agents remain or it will terminate. For answering this question first we argued about mandate contract that if it is contract or unilateral act, then the reason of mandate contract termination with the death of one of the parties and representation in the field of commercial law, finally we concluded that one of the former agents death doesn’ t affect the other mandate contracts if the last agent is the first client’ s attorney.

Analysis of the reports that include Readings attributed to Imams (A. S. ) and the examining the grounds that led to their emergence requires a comprehensive research. This article is the first step to achieve this goal, by which we have tried to show what roles the reports that transmit Imams Reading have played in issuing a legal order. As a result, we have addressed the function of Ṣ ā diqayn’ s Reading in the Qur’ an 5: 95, and concluded that even if Imā mī jurisprudents didn’ t focus their interpretations on this Reading alone, their ruling about atonement of hunting while at the pilgrimage that is based on the other reports of Imams are in line with the Reading quoted from Ṣ ā diqayn. Thus, those single transmissions that include the Reading of Imams, like other single reports, can be used in the Jurisprudential researches, provided that they possess required conditions. One cannot put them aside only because of their being set forth in the form of Reading, for the content of the Reading in question is supported by consonantal outline of the codifications of Imam Ṣ ā diq’ s age and by the fatwas of the Shi’ ites and the Sunnis.

This article aims to clarify the nature of denial of heavy burden of sins (naf-yi vizr) principle, which is inferred from some verses of the Qur’ an. It seems that the ambiguity of different concepts of this principle has resulted in different viewpoints among scholars. Thus, some scholars have considered that the concepts of this principle are related to the Hereafter, and it is impossible to apply them in jurisprudential discussions. Another group argues that the principle expresses the rational decree and doesn't have any exception; therefore, they have disagreed with some chapters of the jurisprudence such as responsibility of the kinsmen of the offender (‘ ā qila). This analytical and critical research investigates the naf-yi vizr principle. The findings indicate that the nature of this principle negates vicarious liability. On the other hand, it shows that the principle’ s acceptability coincides with the practice of the wise and is capable to exclude some cases. Finally, analyzing this principle provides a Qur’ anic evidence for the very frequently-used principle of individual’ s responsibility, and that we could assess Islamic jurisprudential perspective with regard to vicarious liability as an exception for the principle.

In between a valid transaction and a void one, there is a condition in which the transaction is neither null nor complete. In other words, after the offer and acceptance, the transaction is somehow formed and to some extent effectual although it is not complete yet. This condition is called "potential validity". Unauthorized transaction, contracts under duress, real contract such as mortgage and donation and a company which is formed under article 17 of the commercial code (as it is amended in 1346) are all examples of potential validity and their completion and effectiveness depend respectively on the owner's consent, delivery and registration. The concept of potential validity and its effects have not been studied independently yet and its examples are not mentioned separately. All the aforementioned things necessitate organizing this theory under Iran's law.

Background and objective: The need to get husband’ s permission to leave the house is taken for granted in Shi’ ite jurisprudence. However, there follows a question that if the husband refuses to fulfill his marital duties, is he still entitled to command and prohibit his wife and having authority over her and is the woman bound to obey her husband? Findings: Some scholars believe that proofs on women’ s duties are absolute and a woman shall not refuse to perform her obligatory duties even if the husband fails to fulfill his marital duties. This does not seem to be acceptable since the evidence proves it to be a general decree, not applicable to all cases. Moreover, the tradition by Sufyā n Ibn ‘ Uyaynah relies on application of these traditions. However, according to verse 34 of Sū rat al-Nisā in the Qur’ an, a superior status and the act of paying maintenance may lead to the man’ s authority over the woman. When the cause is absent, the given decree will be null and void and the man will no longer have the right to custody or authority over his wife. Discussion and conclusion: When a woman pays the household expenditures on her own, she will no longer be responsible to obey her husband nor to get his permission to leave the house for work. Even if the primary decree which requires the wife to obey her husband is regarded as an absolute rule, this duty will be removed under the secondary decrees such as "the principle of no harm" as well as "the denial of distress and hardship". Moreover, the woman will be allowed to leave the house for work in order to provide living expenses.

One of the most important topics in the ḥ udū d (punishments defined by Islamic law) is the conditions of its executor. This article studies some of the conditions of execution of ḥ udū d and tries to answer these questions: According to Islamic jurists, is there any particular condition for execution of ḥ udū d? Is it necessary that the executor of ḥ udū d has not perpetrated that sin (ḥ add) or other similar sin? How is this ruling carried out in discretionary penalties? What happens if the perpetrator repents? What is the ruling for the observers of execution of ḥ udū d? Can anyone who himself is sinner according to that ḥ add execute that ḥ add on others? The research findings along with executive approach indicate: According to Islamic jurists, execution of ḥ udū d related to the right of God, cannot be executed by someone who did the same sin. That is, according to jurists’ view, unlawful or an obligatory caution. The sinful executor can execute ḥ add if he repents before being in charge of executing the ḥ add.

One of the forbidden things and damages in social and economic relations is shortchanging (taṭ fī f). Although shortchanging is of utmost importance in commercial and measurement domain, it also applies to practical, legal, worshiping, and moral domains. Any shortcoming in human right and failure in accomplishing social and religious injunctions are considered as shortchanging, which is forbidden in jurisprudence and Islamic Republic of Iran’ s law. Its domain includes various kinds of things sold (measurement, weighing, etc. in real and virtual space), failure in accomplishing practical and service commitment, spouses’ failure in performing their duties, and shortcoming in worshiping.

All of the Islamic religions believed that heresy or religious deviation is prohibited. In the works of Muslim scholars, particularly the Shi’ ite scholars, one of the less studied topics is how to confront with heresy, especially enforcement of criminal penalties. Therefore this descriptive and analytical article deals with criminalization and determines the punishment of heresy according to jurisprudence and the opinion of Islamic scholars, and accordingly, it has concluded its legitimacy, while it has considered as necessary the non-violation of freedom of thought and expression.

One of the topics on dī ya is the provision of dī ya for anllegitimate child. The question that arises at this point is that if a person intentionally or unintentionally kills an illegitimate child, how much money must be paid to the victim as dī ya? Shi’ ite jurisprudents have expressed different views regarding this question. One point of view considers the illegitimate born child as absolutely non-Muslim, thus denies him the right to dī ya or considers dhimmī dī ya or him/her. In contrast, another view considers him as a Muslim; as a result, deserving complete dī ya. In this context, there is a point of view that believes that the problem should be discussed in details. Article 552 of Islamic Penal Code, adapted in 2013, in compliance with the second view, considers the dī ya of illegitimate child like that of a Muslim. The present study adduces to Qur’ anic and narrative principles and confirms the viewpoint that considers the illegitimate child on the basis that his/her parents are Muslim and considers him/her as a legitimate child; consequently, it considers the dī ya of an illegitimate child as equal to that of a Muslim person.