RESEARCH SCIENTIFIC JOURNAL OF JURISPRUDENCE AND BASES OF ISLAMIC LAW
Year:2011 | Volume:3 | Issue:7|Papers Count:8

This study talks about the views of the opponents and adherents of imprisonment punishment by taking the aim of islam from imprisonment punishment into account. Also by criticizing and analising its different aspects it gives strategic solutions yo get rid of the doubts and problems in this regard. The ideas of the scholars and jurisprudents are evaluated and criticized and it seems inevitable to imprison the criminal to secure the society From the risks brought about by the criminal and the alternative punishments proposed by the opponents of imprisonment punishments such Fining that they protect the society. this article has talked about the following points related to the topic in this regard: the ideas of the opponents of imprisonment punishment the privileges of imprisonment punishement over the other kinds ot punishment imprisonment as an inevitable necessiry classieying the prisoners rejecting discrimination by imprisonment punishment as a factor to protect the socicty effectiveness ff prison the preventive feature of prison.

Sometimes plaintiff though proves that the cause of his damage certainly belongs to a group, he cannot identify certain cause among the members of that group. This problem known as the indeterminacy of cause has no definite and general rule in Iranian tort law, as whether the court is to accept any claim for remedy of damage whose cause is uncertain in a closed group and if accepting, how he will decide for damages. Article 315 of Iranian Islamic Punishment Act provides that when two persons are accused of murder, and none can prove his innocence, one of them will by drawing lots be liable for paying Dié. This way of compensating in the case of the indeterminacy of causation, though is the common belief of Islam – Emamié jurisprudents, appears unfair and should be limited to homicide. Accordingly by resorting to comparative studies in French and America law, this essay tries to justify the common way of liability - joint liability – in Iran law as the rule of the liability of defined members of a group who have not succeeded in proving their innocence.

With formation of a joint life obligations and rights, occur which they are obligated to observe them, to get family firmness.although the principle is based on woman's freedom of employment but if the employment of wife is in contradiction with family interests or which loss of husband, her employment is limited. due to privacy of relationship, both of them can eliminate the legal restrictions by proviso.Study of Islamic jurisprudence and legal fundaments about employment of wife indicates that like other legal systems, in order to maintain family interests, her employment is prohibited. In this paper, principles expressed above and examples of the contradiction of employment of wife against family interests and civil dignity of spouses and influence of principle of no harm's role are studied.

Bisexual, from religious jurisprudence point of view, is a person possessing both masculine and femining organs and it is in three forms: 1- bisexual tending to masculinity.2- bisexual tending to femininity.3-not easily detected bisexual There are three theories aboat the order of sex altering.1-camplete legitimacy.2-complete prohibition and.3- conditioned legitimacy Mast of the jurisprudents of Sh:ah believe in the complete legitimacy and most of the jurisprudents of sanna belive in complete probibition. About the orders related to sex altering. Since the sunna think of it is legitimate, then they never pay attention to the new sex and treat them with regard to their previous sex. But in shi, ism since sex altering justifind, they are treated with regard to their new sex and they we it in inheritance, Eddeh, judgement and so an … .

In Islamic law, lawgiver relying on tradition and verification of special traditions and making reference to them for judgment is able to create a live and dynamic system, while not over crediting the tradition and overindulging such that being opposed to human dignities and principle of justice and innate reverence and honor of human and Sharia.That is why when a debate is discussed in front of judge, the judge is supposed to regard all aspects including the time, place and different components involved in a legal file and or relates to the society and people and tradition and then makes his order.Common law although following the tradition, but is based on the principle of causality and what is the goal and principle in Islamic law is the prestige and honor of humans and realization of justice; Islamic law is strong roots and it is perfect and no inaction, solidity and inertia is supposed in it and acceptance of tradition and Ijtihad guarantees the continuity and persistence of this law toward maturity and sophistication; it respects tradition laws and the user accepts it in the cases when the law is silent or incommensurable as a legal principle.In present research, we try to illustrate the role of tradition in Islamic judgment in juridical and legal contexts, so it is necessary to present clear and exact definitions in this regard and scrutinize the discussion.

One of the most important methods in studies of SIRE (life of prophet) is analytical method that is being used in studies of prophet's sire. this method depends on using scientific principles and criteria of historical criticism.Important question that exist in evaluation and identification of correct narratives from wrong ones, is this that from which criteria and criterion should use in historical criticism analytical till not mistake in identifying that. On of the most important done things in this extent is dependent to one of current SIRE books namely «Al-sahīh min sīra al-Nabīy al-A’zam (PBUH)». book complication sayyed Jafar Mortaza Ameli. In this book has been used from scientific criterias to specification correct narrative from wrong ones. Surly is one of the ways to assay certain juridical rulings in Quran and prophetic tradition. In this article the rules of this criteria in evaluation historical narratives from the viewpoint of this current historian has been identified and classified and for each one samples listed. During the evaluation of each historical narrative has been analyzed it from various aspects and angles and has used from different criteria in historical narrative identification. In some cases he has used the opposition criteria with juridical rulings among Muslims or knowledge's of Ahl-Albait to refuse historical news or even has presented juridical ruling from that fortuity. The way of Ameli's using from this criteria in identification narratives is various and different.

To prove claims, there are specific evidence in jurisprudence and substantive law including confession, bayyaneh (required numbers of just witnesses), oath (as a presumption to prove murder and injury) and the judge's knowledge, but to prove crimes along with development and advancements in experimental sciences in various fields new empirical and scientific methods such as forensic medicine genetic identification, Chirography, forensic linguistics have come into existence and all are effective in detecting truth, the Judge become convinced in all conscience. and in taking his just decision. From Islamic jurisprudence and jurists point of view the above four evidence are deemed proof to resort to new evidence for detecting truth and proving crimes but since many evidence didn't exist in the previous ages or hadn`t been known, so there has been no reasons for brainstorming jurists to discuss resorting to the above evidence, their nature and legal status among other evidence. On the contrary, nowadays, along with emerging new methods of detecting truth, reviewing legal evidence for proving crimes, particularly, the judge's knowledge for generalizing the above evidence taking advantage of new evidence has turned as a must. Therefore, in this article, these new evidence whose results are to resort to judge's knowledge (in all conscience) are studied.

Loss of Prospective Profit Arising from the Defect of Goods arguments. Based on The dominant view among jurisprudents is that there is no reason for liability towards expectancy damages. Following the dominant view of jurisprudents, Proviso 2 to article 515 of Civil Procedure Code also apparently does not consider expectancy damages demandable. Vis a vis the dominant view, a group of jurisprudents admit the liability towards expectancy damages presenting certain plausible the latter view, the present article considers demanding expectancy damages permissible. In the laws of certain countries, this liability is also approved absolutely or conditionally. There are two situations imaginable for expectancy damages of a defective goods: Sometimes, the owner of a defective car is deprived of utilizing the goods during the period of rectifying defect or substituting the goods. Some other times, the defective goods gives rise to a physical harm, and the consumer is unable to be present in his business place. It seems that in both cases it is possible to demand expectancy damages relying on the rule of prohibition of detriments, that of waste of merchandise, indirect causation, and the usage of the reasonable. However, desirability of the extent of demanding damages should be weighed against its harms or disadvantages in the society, and if necessary, the scope of demanding damages should be limited, since increasing the obligations of the producer gives rise to stagnation of industry and production. Thus establishing balance between the interests of producer and consumer is among the important issues in legislation. As to the proviso 2 to article 515 of Civil Procedure Code, which does not require expectancy damages demandable, it can be said that it refers to the probable expectancy damages, not to the unquestionable ones.