Islamic jurisprudence Resaerch
Year:2015 | Volume:10 | Issue:4|Papers Count:8

Based on the jurisprudential principle of, "the Non-Responsibility of the Trustee", in case the trustee has not committed any encroachment or negligence, he shall not be held liable for any loss to a property [whether total or partial]. This common and general principle is applicable to contracts such as deposits, lending, hiring, agency, mortgage, etc. However, the Islamic jurisprudents believe that in contracts such as lending, it is va lid to hold the trustee liable. Therefore, in all permissive contracts and the ones in which the possessor has another person's property at his disposal, the questions related to trustee and trust property are present. The article at hand tries to examine this issue in an intelligible way, so as to attain the scientific basis underlying the subjects related to trustee and trust property and trustee's liability/lack of liability toward the trust property.

As a kind of indefinite punishment, the discretionary punishment is the most. pervasive reaction to criminality in the Islamic penal policy. The efficacy of the discretionary punishment depends on how we use it to adjust the foregoing reaction to the guilty personality. Some Shi'a jurisprudents believe that just like Prohibition of the Evil, the discretionary punishment should be used by observing gradation. That is, it should be started from low grades such as warning, reproaching, etc. in petty offences, and in case the wrong deed is repeated. the more severe punishments such as imprisonment can be used. In other words, if the judge knows that deterrence can be attained through slighter punishments like reproaching, he/she should not issue the whipping, imprisonment. or suchlike severe punishments in the first occurrence of a petty offence. With regard to the extensive reliance on the imprisonment and physical punishments in criminal laws and the widespread use of imprisonment by judges, even for the first-time offenders-which has led to the increased density of convicts' number in prisons - specification of the discretionary punishments can be of great use. The article explicates the viewpoints of those Islamic jurisprudents who believe in the discretionary punishment gradation, presents the benefits, positive effects, and challenges facing this kind of punishment, and provides a clear-cut, practical, and effective proposal that can be applied in the penal policy. In addition to the Sunni jurisprudents, some early Shi'a jurisprudents such as Sheikh Tusi (May he reside in God's paradise) and some contemporary ones such as Mirza Javad Agha Tabrizi (May he reside in God's paradise), Fazil Hendi (May he reside in God's paradise) - the author of Kashf al-Letharn-and Allameh Helli (May he reside in God's paradise) are the main adherents of this viewpoint. whose respective opinions will be examined in the article. Acceptance of the discretionary punishment gradation theory in the penal law can bring about several positive consequences, including reduction of the convict's number in prisons. the possibility of better planning for the fewer remaining prisoners, and the possibility of adopting rehabilitation programs for those who have committed an offence due to ignorance and obliviousness.

After the establishment of the Parliament and introduction of the concept of representation into the Iranian political jargon, the scientific figures as well as the ordinary people deemed this political institution as a form of religious lawyering. Religious scholars' and thinkers' insisting on the identification of this institution with religious lawyering laid ground to the foregoing stance. However, the question that has remained unanswered is that if this understanding of representation has been brought about due to informed thinking and study of the thinkers, or has been just a way to localize this newly introduced institution in the traditional Iranian society. With a careful examination of the nature, conditions, and scope of the lawyering and also consideration of its stakeholders, it can be realized that although parliamentary representation has a lot of similarities to the contract of mandate, it cannot be identified with lawyering at all. The reason is that parliamentary representation has special rules and features which make it impossible to equalize that political concept with the concept of lawyering in jurisprudence and the private law.

Endowment is one of the important social commands in Islam. Some of the terms of its accuracy are endower's lawful ownership of the endowed object, the existence of an object to be endowed, the capability of the endowed object to be delivered, and the eternal nature of the endowed object. On this basis, there have been disputes on the possibility of endowing intellectual rights. This library research project - which has been carried out by collecting and studying the opinions of researchers - has reviewed the process of induction and extraction of the terms in endowment contract, has discussed the existential and ideal philosophy of the disputed terms, and finally, has come to prove the accuracy of endowing the intellectual rights. This conclusion has been based on some premises. First, intellectual right is an eligible right based on religious and conventional ownership. Second, the condition of existence of an object to be endowed means having a real "existence" with the capability of being used. The philosophy underlying this mentioning is to exclude the false instances of endowment, i.e. benefits and liabilities. Third, regarding the delivery condition, it should be noted that the form and method of delivery is related to the different endowed objects. Bearing this mind, it can be said that the delivery condition denotes the delivery of the ownership to the receiver of the endowment who enjoy its benefits, rather than physical or non- physical delivery of the endowed object. Fourth, the confirmation condition denotes the eternality of the essence of endowment contract of an eternally endowed object, and also unacceptability of endower's later claim to the endowed object. This eternality condition is not breached if the conventional sustainability is met, that is, if the essence of the endowed object is not vanished in the process of using.

From among discussions which have received ample attention from the Islamic scholars since long ago, we can name the scope of jurisprudence, religious obligations of the human being, and their limits. In this regard, there exist two main viewpoints among the Islamic scholars including the jurisprudents, commentators and theologians. The famous Islamic scholars as well as a majority of the less recognized ones believe that the scope of jurisprudence and canonic rules are confined to the practical derivative principles and physical deeds, and the faith- related subjects as well as the abstract deeds are out of this domain. Therefore, these scholars have just taken into account the practical derivative principles, and have devolved the faith-related and abstract deeds to another domain and resources, known as the theology. On the contrary, a small number of Islamic scholars have proposed in brief some parts of the doctrinal topics in the jurisprudence resources and have had a look at this issue from a jurisprudential and obligation-oriented point of view. The true viewpoint and the hypothesis under the discussion in this study in that the domain of jurisprudence and religious obligations has not been confined to the practical derivative principles and physical deeds, but further, it encompasses the beliefs and abstract deeds or the human, too. In this article, besides referring to the arguments of the former well-known viewpoint and criticizing them, the latter standpoint is proved based on numerous arguments.

In the third stage of determining the lost property price, two difficulties appear: on the one hand, property price can change from the time of the liability realization till its payment time, so it is ne cessary to determine which time is the basis of calculating the property price. On the other hand, when one of the time phases are adopted, the question of money devaluation during the time is raised. That is, if the agent of loss is responsible for money devaluation during the time or she/he is merely responsible for the value of property in the time of usurpation, dissipation, or deliberate destruction? The importance of this issue gets more tangible when one notes the money devaluation during the time and the long process of judicial proceedings. The idea maintained and confirmed in this article is that in order to determine the amount of cash that must be paid to the injured party, first the mere loss should be determined without consideration of the money value fluctuations, i.e. based on the price of the lost property at dissipation or deliberate destruction time. Consequently, after specification of the property value, reduction or increase of the market price of the lost property does not change the amount of the debt. However, according to the recent precedents of the Tribunal, if the value of money is decreased up to the payment time, the debtor can be asked for compensating the money devaluation because of his role in its causation. Therefore, what the injured party is entitled to receive is the price of the lost property at dissipation or deliberate destruction time that must be updated up to the time of payment with respect to Consumer Price Index (CPI).

Since causality, continuity, and expiration of any ruling depends on the topic, and topicology has been considered as a factor that strengthens the inference, the present study has set out to define the term insanity and specify its scope as one of the main discussions of topicology in jurisprudence and law. The present study attends the literal definitons of insanity as well as the definitions based on examples and instances that are taken from the Islamic traditions. These traditions along with the customary viewpoint serve as the bases of most definitons. The study at hand offers another method for defining insanity, which is based on distinction and seperation of the intellectual and mental problems, and knowing other intellectual problems that contribute to the speicifc insanity stipulated in jurisprudence. At the end, the study has attained a clear-cut defintion of absolute insanity and specific insanity based on the definite description. Consequently, the different types of specific insanity as well as the legitimate sources of identification and determination of it have also been commented on as the secondary goals.

This article examines the premises, conditions of authority of the outer apsects of the Quran, and the scope of the referecnes made to it in Sheikh Mortaza Ansari's (may he reside in G od's paradise) jurisprudential theory. This article explains and evaluates Sheikh Ansari's theory using an analytical-critical method. By accepting authority of outer aspects of the Ouran in his jurisprudential theory, Sheikh Ansari has used it to infer the canonic rules from the Quranic and traditional phrases and in criticizing other jurisprudents' judicial decrees. especially those of the traditionalists. Agreement of the outer meaning with the common understanding, agreement of the outer meaning of the verse with Quranic text or traditions, and agreement with the indications are the three fundamental conditions of the authority of the outer Quranic aspects in Sheikh Ansari's jurisprudential theory. Using rational and narrative reasons, he has rejected traditionalists' dismissal of the authority of the outer aspects of the Quran. Sheikh Ansari has made numerous references to the outer aspects of the Quran in his jurisprudential works. Various examples of such references can be seen in different jurisprudential chapters of his works, such as ritual purity, Prayer, Hajj, earnings, inheritance. following, etc. The results of evaluating Sheikh Ansari's theory show that his premises and reasons suffer from ambiguities and questions and need to be reexamined and to be completed.