Jurisprudence and Fundamentals of Islamic Law
Year:2019 | Volume:51 | Issue:2 |Papers Count:13

Among the very significant principles and virtues emphasized in the religious teachings is that of chastity. In addition to the commands given with regard to observing chastity, Islamic precepts deal with the relation between chastity and other precepts in such a way that performing the latter would result in observing the former in both individual and social dimensions. While expounding essentials of chastity as well as its effects and consequences, various precepts that contain it are extracted and explained. The relation between chastity and religious precepts is either that of conditioned-by-something, or that of negatively conditioned, or that of unconditioned. Searching various jurisprudential chapters and different religious precepts, especially with regard to acts of worship, in such subjects as purification, prayers, pilgrimage, marriage, divorce, etc., we found no single case of the relation of negatively conditioned. On the other hand, so many instances of manifestations of chastity in the jurisprudential precepts can be found in different parts of jurisprudence, including those dealing with acts of worship, in which the condition of chastity is taken into consideration. Such cases are often those in which the difference between man and woman plays a role. Although some other religious precepts are void of manifestations of chastity, they are not void of necessity of observing chastity.

One of the juridical rules is liability of taking delivery property if contract is canceled, which is interpreted as “ liability of taking delivery property of terminated contract” . This rule is applicable in (revocable) optional and voidable contracts. The main question about this rule is that, “ What are the contents, scope, and conditions of fulfillment and evidences of liability of taking delivery property of terminated contract? ” Researchers of jurisprudence and law haven’ t done any scientific research in reply to this question and clarification of the mentioned rule, so that there appears to be a scientific gap in this case. The present research is intended to remove this scientific gap to accomplish the rule of liability of taking delivery property of terminated contract and also to answer the above question with necessary studying and analysis of juridical sources and with the help of inference and library method. The most important finding of the research is that liability of taking delivery property of terminated contract is one of the referents of the principle of ḍ aman al-yad (compensation for damage to property held under trust) and its rules and regulations conform to ḍ aman al-yad.

After understanding the legal precepts and their subjects, the stage of adaption of law concepts with its evidences and external criterion is among the basic topics that have been improperly intermingled with the first stage. Judgments come from the decision on aspects of law subjects, thus, this understanding helps the judge to adjudicate correctly. In this paper, two aspects of the adaption based on intellect and custom are reviewed to prove that the custom leads to correct adjudication. In the court of Iran a decision should be made on the forming of a group such as jury to help the judge for realizing the custom.

The good and the evil can be ethical, jurisprudential and legal and each of them will be identified through its specific criteria. There are various views among the experts about their sources of recognition. The main question is: what resources should be used to identify good and evil and whether there is a difference between these sources in jurisprudence and law? This paper, by examining five theories, defends a theory that differentiates Islamic jurisprudential good and evil from law-based good and evil. The findings of this paper proves that in jurisprudence, sources of recognizing the good and the evil, are religion and reason; but in legal terms, for the exclusive ways of identifying the good and the evil are the law, rules, and regulations.

One of the important objectives in legislation of the Islamic laws is protecting the Islam foundation and defending sovereignty of the Islamic state. Many Islamic laws have been legislated in this regard. One of these regulations is the legitimacy of sabaq(racing) and ramayeh (arrow-throwing) contract. The legitimacy of this contract has been emphasized in many Islamic narrations, and jurists agree on its permissibility. However, what is important in this research is to know whether sabaq and ramayehlegitimacy belongs to the mentioned cases in the narrations as the previous jurists said or the permissibility of this contract can be used in the modern military weapons or not. This research studied the above issue by the analytical-inferential method. It is concluded in this research after reviewing and studying the jurists’ statement that sabaq and ramayeh contract is not only permitted in the modern military weapons, but also permitted in the legal statements as far as those weapons have military application.

In Islamic jurisprudence, in addition to the prohibition of appropriation of others’ properties by the guarantor, it is obligatory for him to return the usurped property to its owner-whether he is a usurper or not. But, if returning the usurped property is not possible, the usurper is obliged to give back its substitute to the owner until the usurped property becomes possible to return. This injunction which is known as the intervening substitute (badal ḥ eilū la) is approved by Imā miyya jurists and consequently the Civil Code and some Sunni jurists. Disputes regarding the legitimacy of the intervening substitute and challenges resulting from implementing this injunction, like inclusion of new claims to cases like the claim of the guarantor regarding the appropriations of the one whose property is usurped from the substitute, and consequently lengthening the proceedings and their implementation make the reappraisal of the jurisprudential evidences of this injunction necessary. Investigating these evidences reveals that, firstly, the verbal evidences of this injunction do not have direct relationship to the issue and secondly refer to, at most the necessity of compensating for losses and not how to do so. Nonverbal evidences in proving this injunction, even if we accept them, refer to advisory (irshā dī ) injunctions not binding (mawlawī ) ones. As a result, at least in cases resulting from non-forcible appropriation in order to compensate for the losses of the owner until the real property is returned, in addition to the intervening substitute, other reasonable methods like paying the equivalent remuneration (ujrat al-mithl) of the usurped property to the owner can be utilized which have less challenges and difficulties.

One of the conditions of the exchanged items is the liberty of object of sale; that means the customer can do any seizing ownership that he/she wants. A commodity that’ s the object of transaction should not belong to another person; therefore some jurists added liberty of ownership condition to the conditions of the exchanged items. The acceptors of this condition applied some works and branches to it. Whether the liberty is an independent condition or not; whether the liberty of object of sale is the condition of the validity of object of sale or the one of the barriers of the effectiveness of sale, is a matter of controversy among the jurists. Some examples of non-liberty are the sale of the object pledged, the sale of endowment and shareholder’ s equity in corporations, and the right of option and the person in whose favor the condition is made. In this research, the means and barriers of the liberty of property, independence of liberty of condition, the means of non-liberty of property is discussed form the viewpoint of Imam Khomeini, Sheikh Anṣ ā rī and the statuary law. Findings: belonging of other’ s right as a general principle prevents effectuation of the deal. And examples that the jurists have mentioned are confirmations of this rule without having any features. That is with the abolition of the feature in the mentioned cases one can generalize and develop it to the right of other in all cases, such as the right of shareholders in corporation; because what is meant by liberty of property is that its seizing is permissible for the owner and does not encounter with any barriers. Shares in limited companies are not free toward the company and company managers, and they are often free toward shareholders.

In Article 555 ICL, the confirmation (taghlī ẓ ) of the diya is conditional on the conduct of both the offender and death to be in the sacred months or in the sanctuary of Mecca, whereas most of the Imā mī jurisprudents are in favor of the non-conditionality of the unity of place and time of death and criminal behavior. Accordingly, the main issue of the present paper is to examine different perspectives on the necessity or unnecessary unity of the time or place of the crime and the death of the innocent person in order to establish the confirmation of the diya and to analyze the evidence presented in this regard. The findings of this research, based on the descriptive-analytic method and based on the library resources, indicate that, despite the great disadvantage of the validity of the narratives regarding the principle of confirmation of the diya, the right statement is a rival viewpoint, which the Iranian legislator has chosen the same. Because according to the narrations on this issue, including those in Kulayb al-Asadī ’ s Ṣ aḥ ī ḥ a, the realization of criminal behavior is relevant at that location or time. Therefore, the criterion in the confirmation of the diya is that the murder is carried out at that time or place and as its conventional evidence it is necessary that the cause and caused, namely, behavior and death, have a time and place unity. Because murder is the title whose truth requires practical behavior, without which the appellation of death or demise is true for it, not murder. Sufficing the agreed certitude in the opposite cases, like the confirmation of diya, also confirms the theory of the validity of the unity of time and place of criminality and death. It also seems that the term “ conduct of the perpetrator” in the mentioned article makes yields to probabilities that might violate the assessment of evidence in some cases. Hence, in order to repel it, it is suggested to replace it with the term “ criminal behavior” .

One of important issues in mining ownership is dependence or non-dependence of mining ownership on land ownership, about which there are some views. The renowned majority of Shī ‘ a jurists have distinguished mines located in private estates and the ones situated in public estates and thus have accepted dependence in the former and non-dependence in the latter. In this study, which has been carried out in a descriptive method and with reference to legal and juridical texts, the authors have concluded that mining ownership is no absolute way dependent on lands in which the mine is located; because primary and secondary reasoning of ownership cannot prove that whatever is located in the lands belongs to land owner, although it is naturally considered a part of the land; moreover, mining wealth is undoubtedly not economically and financially considered as a part of the land. Thus, judicial edicts related to land is not generalized to mine because, in view of the proportion of ordinance and subject, it is separately economic wealth.

On the one hand, article 136 of the Islamic Penal Code has stipulated: “ When a person commits the same crime leading to ḥ add(legal punishment) three times, and each time his legal punishment is executed upon him, his ḥ add on the fourth time is death” ; on the other hand, in the Shī ‘ a narrative collections, in a narration from Seventh Imam (A. S. ), known as “ Yū nus’ s Message” , it has been made clear that Imam has said: “ Those who commit major sins are killed in the third time. ” The content of this tradition, which forms a “ general rule” and a “ universal major” , contradicts the concept of the above-mentioned article. In this paper, after studying the hadith and confirming its authenticity and validity, and also by matching the content of the tradition with the provisions of this article, the author has consistently reviewed the criminal topics of article 136. In the following, the prospective documents and the following alleged reasons for each of the criminal offenses listed in this article are examined and evaluated with jurisprudential criteria. It is finally concluded that the application of the above-mentioned article is without the jurisprudential justification and only the two topics of “ adultery” and “ robbery” are for specific reasons out of the general narrative of Yū nus and exemplified by Article 136 of the Islamic Penal Code.

One of the most important criminal laws, which is the common ground for Islamic law and the Iranian and U. S. criminal system, is rule of avoidance of punishment (darā ’ ). The spirit of this rule means that in case of doubt or mistake of law or mistake of fact or doubt in assigning a criminal act by the judge or doubt in criminal liability, criminal liability and punishment are excluded. The importance of this article is that the less-known capacities and functions of this rule will be shown to the addressee and through a comparative study new achievements are made that are useful in order to improve the rules and procedures of judiciary. The research procedure of this paper is carried out by library method and legal texts and codified laws have been used. The basic question that exists in this regard is that, “ what is the equivalent to the rule of darā ’ in the U. S. criminal justice system? ” And what are its functions? The most important conclusion that can be drawn from the present paper is that the U. S. criminal justice system does not have a firm and clear set of rules about the mistakes of the law and has followed different criteria.

Right of pre-emption is an exceptional right; and unlike the rule of possession, it constitutes the power to forcibly possess the sold common share. Among the prerequisites for holding pre-emptive right, which is provided for under the article 808 of the Civil Code based on the view of the renowned majority of jurists, is transfer of common share through “ sale” . This paper discusses the opinions on the said condition and analyzes the evidence in its favor, reviewing arguments in favor of such view as well as studying the relevant hadiths as the main relevant evidence. However, strengthening the principles of the non-majority view, this paper found the latter as the preferred opinion; the main finding of this research suggests that review of the relevant hadiths reveals that they don’ t completely indicate the “ validity of limiting of pre-emption right to sale”-the opinion held by the renowned majority of jurists-and that adopting a new view of the relevant hadiths, the limitation of pre-emption right to sale can be removed and the same may be extended to all kinds of non-transaction contracts for transfer of title on the grounds of customary law and public will.

The third-generation of human rights is the solidarity rights, which is based on brotherhood and solidarity. Karl Vasak considers these rights as a new concept of international life. Despite this, solidarity in its course in the texts contents and also in the international and executive arena has been more under the rule of inconsistent mechanisms than other three generations, which ultimately leads away these rights from the goals of the Third World and even making it to the benefit of the powerful countries. To return these rights to the expected direction of undeveloped countries and the realization of true brotherhood, the Islamic appropriate mechanisms in the usage of these rights have been suggested. These mechanisms, from the perspective of the principles of jurisprudence and Islamic law, are reflected in various verses of the Holy Qur’ an, including verse 12 of Surat al-Ḥ ujurā t concerning observing the security of people’ s personality even in social friendly talks and the verse 92 of Surat Al-i ‘ Imrā n on regarding virtue as giving freely the best of what you have, as well as some instances from Nahj al-Balā gha.