Studies of Islamic Jurisprudence and Basis of Law
Year:2023 | Volume:17 | Issue:47|Papers Count:13

One of the causes of the distinction (termination) of Ḍamān (Arabic: ضَمان, liability) is doing the act with the motivation of benevolence in Imamiyyah jurisprudence. This aspect of the rule of benefaction (Arabic: اِحْسان) has also been taken into consideration in statutory law of Iran, including Article 510 of the Islamic Penal Code Adopted on 2013. The consideration of the creation of liability for the benefacted person (Arabic: مُحْسَنٌ­إلَیْه) is another aspect for the rule of benefaction; that is, the benefacted person must pay the costs of benefactor or his/her remuneration, if the benefactor (Arabic: مُحْسِن) conducts an action motivated by benefaction which costs benefactor or there was a remuneration in the custom for benefacted person’s action. There is a difference of opinion among Imamiyyah jurists in accepting this aspect. Well-known jurists have the opposite opinion, but there is more tendency to accept the second aspect of the rule of benevolence among jurists and some consider the basis of Article 306 of the Civil Code of the Islamic Republic of Iran to be the rule of benevolence. We have tried in this article to answer the question of whether it is possible to accept the proving aspect of being liable of the rule of benefaction or not. The analytical-descriptive method and library resources in order to answer this question were used to examine the views of jurists. The result of the research shows that the second aspect of the rule of benefaction can be accepted by identifying the pseudo-contract (quasi-contract) caused by the rule of benefaction; because being benevolent is equal to the intention of giving (animus donandi) and is not an obstacle to receiving a remuneration. This quasi-contract can be identified by interpretations of the rule of benefaction and the sanctity of a muslim’s act in this research.

The issue of permissibility or non-permissibility of donating body parts of condemned prisoners and sentenced to Qiṣāṣ (Arabic: قِصاص, literally, retaliation) is one of the important and practical issues that must be answered in the light of modern jurisprudence and law. The issue of the possibility of transplanting the organs of condemned prisoners to needy patients has been considered and permitted in many legal systems. This issue can be reviewed in terms of jurisprudence and Iranian law. This study which has been written by descriptive and analytical method examines the important question of what is the approach of Holy Legislator to such an affair? The chapters of the rule of necessity (Arabic: اِضْطِرار) and conflict (Arabic: تَزاحُم) are largely related to this issue. According to the emergency situation in the Islamic society, it will be allowed to remove the organs of condemned prisoners in the operating room, whether their lives and safety are not protected by the law or not. This issue can also be examined from another aspect, such that even in non-necessity situations in cases of unfixed death penalty, the convict can be executed in the operating room instead of hanging, because the reason of the retaliation with the sword is to prevent the convict from being bothered and also that their transplantable organs can also be used. In this case, his/her permission is a condition. This has been authorized by Article 47 of the Regulations for the Execution of Ḥudūd (Fixed Punishments), Capital Punishment, Amputation, Retaliation, Diyāt (Blood-Money), Flogging, Banishment, Expulsion Order (Nafy), Compulsory Domicile and Prohibition from Staying in a Certain Place or Places Adopted on 2019.

The review of the reasons for the criminalizing of economic rents in jurisprudence is the main purpose of this research. Rent is a phenomenon that most societies face with a wide range of its destructive effects in various economic, political, social and information fields. “Rent” in political literature means granting privileges or monopolies to certain individuals, sometimes considered a legitimate and inalienable right, but in economics it is anti-value and the proceeds of which are considered illegitimate. Since the basis of the main part of the economic rent is also political jobberies (collusions), political currents seek to create rents in various ways such as economic rent in order to recruit the government in the direction of the economic interests of their party, group or alignment currents and sometimes to pressure the government. It seemed necessary to conduct research in this area by considering the major damages of economic rent in different infrastructures of the society and in addition to a detailed investigation of these damages, the jurisprudential foundations of economic rent must be investigated. This research is based on a descriptive method and using library documents and resources and is based on the assumption that in the rules of Islamic jurisprudence can be found several reasons for rent criminalization, such as the rules of prohibition of detriment (Arabic: لا ضَرَرَ, principle of harm), unlawful ownership (Arabic: أکْلُ الْمالِ بِالْباطِل), the sanctity and prohibition of cooperation and helping in sin and the reasons of forbidding wrong (Arabic: ٱلنَّهْیُ عَنِ ٱلْمُنْکَرِ, Romanized: an-nahyu ʿani-l-munkari). The findings of this study indicate that the imperative rule of rent from the perspective of jurisprudence is prohibition and it also causes the liability of rent- seeking people in terms of positive rule and will cause disruption of the Islamic system.

The principle of equality of persons before the law is accepted under Clause 14 of Article 3 of the Constitution, but the Islamic Penal Code Adopted on 2013 has considered gender to be involved, in accordance with Imamiyya jurisprudence in the implementation of some punishments, including Ḥudūd. There are many differences in the punishment of Ḥadd of Zināʾ (Arabic: حَدّ الزِّنا, the fixed punishment for adultery) which is considered in this article based on the conditions and the quality of the execution of Ḥadd of Zināʾ. Considering that the effect of gender in punishing individuals is against the principle of equality under the law, therefore, proving it requires strong justifications and the main reason for these inequalities is the observance of the interests of the parties regardless of the narrations (aḥādīth) that has been included in some instances. Therefore, it has been tried in this research by descriptive analytical method and citing library sources with examining the concept of “equality” in Islam, as well as examining the verses of the Holy Book of Quran and examining the position of gender equality in the relevant verses, as well as the cases of inequality in conditions and quality of the execution of Ḥadd of Zināʾ in the law, the views of the Shīʿite jurists and the arguments presented by each one to be examined to determine the extent of the legislature’s consideration in the interests of the parties. It becomes clear by considering these views that gender inequality has been only in some instances affirmative and is in accordance with the interests of both parties and in other cases that the possibility of coercion towards man for adultery, affirmative sentence of the death penalty for adultery with the mother’s husband and the inequality in the definition provided in state of being married (Arabic: اِحْصان, Iḥṣān) is not in line with their interests.

Loan transferring (selling mortgages and devolution of right) and banking facilities from the seller to the buyer is a fact called “loan selling” which is known as a new example of “sale” (Arabic: بَیْع, Bayʿ). The ruling of this transaction is a matter of disagreement among contemporary jurists and the legislator does not stipulate in this regard. The present article tries to evaluate these transactions by a jurisprudential and legal criterion, because firstly, the transferability of loan and devolution of right and secondly the ruling of such transactions is doubtful. Therefore, it has been concluded by examining and analyzing the views of jurists and Iranian laws that loan transferring (selling mortgages and devolution of right) as an intellectual right are not transferable to others and according to the views of some late jurists and laws issued by banks, illegitimacy and legal prohibition of these transactions are confirmed, which of course, the effects of this fact in economic and social terms emphasize its legal and religious prohibition.

Nowadays, macroeconomic variables such as poverty, economic and income inequality and unemployment are among the important and fundamental factors known in the occurrence (perpetration) of crimes. The prevention in its variety of approaches especially corrective (penitentiary) and mechanical approaches requires long-term financial plans and costs. Providing optimal prevention in various economic contexts of crime perpetration is the purpose of this research. The authors in this article, which is a descriptive-analytical and critical study on the types of crime prevention have explained the concepts of prioritization and continuity in both the analysis of criminogenic contexts and related to the field of prevention by referring to experimental researches. However, studies of crime economics (cost-benefit) usually evaluate the effects of these causes separately. This segregated approach has also been dominant in social prevention in the field of crime prevention. The results indicate that some of the economic contexts of crime perpetration including poverty, economic inequality and income are affected by the unemployment rate, so they have a positive and significant relationship with this macroeconomic variable. The other findings of the present study indicate some criminal origins called organized crimes. Therefore, these factors, in addition to being independent factors for petty crimes (minor crimes) such as theft and murder in the community can be caused by organized and economic crimes. The path should be paved for more effective mechanical prevention and punishment by optimal economic allocation in the field of prevention approaches, instead of providing the same financial costs.

One of the topics that have been discussed after the industrial revolution and the increase of human ability in the production of goods and services and attention to human rights is consumer rights and it also needs to be developed with the updating of new technologies. The Internet of Things (IoT) is one of these technologies which has a strong relationship with consumer rights due to the lack of direct human control over it and its influence in various aspects and dimension of human life. Accordingly, the basic question of this research is about the nature, content and examples of consumer rights in the field of Internet of Things. The method of data collection in this study is library method that is accompanied by description and analysis of viewpoints and to achieving to an appropriate definition of Internet of Things and consumer rights and then determining the nature, instances (examples) and content of consumer rights in the field of IoT is the purpose of this research. The Internet of Things is a service based on internet that provides a connection between humans and objects or even animals on the Internet. It is in this context that the various uses of this technology are realized and occurred and as a result, the issue of consumer rights becomes meaningful in it. The dimensions and aspects of consumer rights in the field of IoT are more complex than other cases due to its nature and include dimensions and aspects such as security, health, awareness etc., which are mainly mentioned in the Law of Iran in general and as a result, they can be used for the Internet of Things. Some, such as freedom of choice, right of ownership and the right to data portability, etc., should be considered by the legislature for utilization of these dimensions and aspects of consumer rights. Some others cannot enter into its content due to the nature of this right.

Crime is accompanied by criminal and non-criminal response as an anomaly in society that “criminal policy” is responsible to answer it. Criminal policy consists of different levels that legislative criminal policy as the most important and fundamental level of criminal policy is the gateway to the response to the criminal fact and is responsible to form strategy and framework against it. The judicial criminal policy as the executive arm, after that, has the task of dealing with real criminals but this process is challenged in some situations due to some reasons and judicial and legislative criminal policy do not coincide and adapt with each other. The main question in this research is: What are the most important factors of the incompatibility of legislative criminal policy of Afghanistan, especially in the case of crimes against family? The most important causes of this incompatibility according to the findings of this research in the criminal policy of Afghanistan regarding crimes against the family are the lack of including of all issues by law, unavailability of official and judicial authorities, lack of expertise of judges, insecurity, corruption and cultural and moral obstacles governing society. Therefore, these obstacles must be overcome in order to adapt judicial and legislative criminal policy as two arms of criminal policies. The research method in this article is library and analytical descriptive method.

Internet addiction is one of the emerging issues that today in human societies is a chronic obsessive-compulsive state in people and it brings personal, social and psychological problems by creating an irresistible desire for reuse of it. The explanation of the view of the Holy Legislator in this field will help in order to prevent this damage. This article is going to collect and analyze the views of contemporary Shīʿite jurists in this field by descriptive analytical method and the religious law of addictive use of the Internet has been inferred and deduced based on the principles of Shīʿite jurisprudence. The results indicate that some contemporary jurists do not consider the use of the internet to be legally prohibited in itself but some others do not consider it permissible in cases of excessive use and considerable physical or mental harm or rational (reasonable or intellectual) harm and damage. According to the Holy Bok of Quran, Maʿṣūm’s tradition and rational demonstration (proof), since this fact is subject to titles such as oppression and causing harm to soul and excess, the ruling of its illegitimacy is stronger and more citable.

Every commitment must be end and there are different causes of ending a commitment. Discharging of an obligation by the original subject is the original form for any commitment. But the question is whether the promisor and promisee can replace the disposition of another object with discharging the original subject of commitment by a mutual agreement? What is the legal nature of it, if this is possible, and what effects does it have? It has been shown in this article that it is possible to replace the disposition of another object with the agreement of the parties in the Law of Afghanistan. Some consider it to be a “sale” (Arabic: بَیْع, Bayʿ) regarding the nature of this agreement, others consider it to be substitution of an obligation and some say it is a special form of discharging and the other group consider it to be a combination of substitution of an obligation and discharging. There are still theories that this institution is compromise made for consideration but the research shows that it is not in full compliance with any of the above-mentioned institutions and is a special agreement that has its own characteristics and its own rulings. This special agreement has a dual nature that it is possessive on the one hand and it has a discharging characteristic on the other hand, so it can be applied in terms of sales and in other respects.

The article 697 of the book Taʿzirāt (discretionary punishments) of the Islamic Penal Code of the Islamic Republic of Iran Adopted on 1996 is the documented general form of defamation crime. The psychological condition of this intentional crime (knowledge and intention) has always been disputed from different angles by judges and authors. The degree of compatibility of the issue of “obtaining the knowledge of the perpetrator about the falsity of in the attribution given to another or published it” with the Quranic and narrative teachings, “necessity or lack of necessity of obtaining the intention of damage” and “the effect of non-reactionary behavior on the psychological conditions of the perpetrator of the defamation” are three issues that this research has been done by using library resources and comprehensive systems of laws and regulations and judicial decisions in a descriptive and analytical method and have been submitted some suggestions in order to amend the mentioned law. Accordingly, the research concluded that “the necessity of obtaining the knowledge of the perpetrator about the falsity of in the attribution given to another” with the Quranic teachings and narrations that command people to obey the knowledge and extreme avoidance of conjecture and the obedience of dignity and worth of the human person of God’s servants is in conflict and does not need to consider the obtaining the intention of damage to the perpetrator in order to prove the defamation and whether or not the behavior of the perpetrator is reactionary or not, even if the behavior of the perpetrator is not defending oneself before a judicial authority has no effect on the intent to commit defamation.

“Duress” according to its special nature is one of the important issues that has long been considered by schools of jurisprudence and law and there has been a lot of discussion about it. Committing rape or forcible (duress) adultery or Zinā (Arabic: اَلْزِّنا, fornication) and coercion is only accepted by the adulterer in Article 224 of the Islamic Penal Code and somehow the possibility of the duress by adulteress and the coercion and duress of men in adultery has been rejected. The question raised is whether it is possible for men to be put under duress to commit adultery and what is the famous approach of the jurists to this issue? The question of examining this issue and topic is necessary because the famous fatwā (legal ruling) of Shīʿa jurists is contrary to this article and the great Shīʿa jurists such as ʿAllāmah Ḥillī (Arabic: اَلْعَلامَة الحِلِّی), al-Shaykh al-Ṭūsī (Arabic: اَلْشَّیْخُ الطُّوسی) and contemporaries such as Imām Khomeinī (Persian: امام خمینی) believe that it is possible for men to be put under duress to commit adultery. It has been tried in this research, which has been collected by library method and has been done descriptive and analytical, to strengthen the famous theory and prove the necessity of accepting duress for men to be put under duress to commit adultery by explaining the concept of duress (Arabic: إکْراه) in the opinions of jurists and legislators and critique of the evidence of the theory of non-coercion or lack of duress (non-famous theory) and by providing rational rules and medical documents as well as reviewing verses and ʾaḥādīṯ.

Traveling and Ṣilat al-raḥim (Arabic: صِلَةُ الْرَّحِم - literally: the Womb-Ties which means associating and meeting with relative and helping them) are issues that have always been emphasized by Islam but experts say travel and gatherings in the coronavirus (COVID-19) pandemic cause widespread spread of the virus and cause a large number of people, resulting in financial and life losses. Accordingly, the responsible and the liable people for the compensation of these losses will be those who start to these trips and gatherings. These people are responsible and liable for compensation for the damages incurred from the perspective of the Shīʿa jurisprudence. The findings of this research which have been written with descriptive analytical method and by studying and pondering Shīʿa jurisprudential main texts indicate that according to the views of jurists and rules such as rule of “prohibition” of detriment (Arabic: لا ضَرَرَ, principle of harm), the prohibition of murder, waste and indirect causation of people who are infected with COVID-19 and are aware of their condition and they are responsible and liable for the damages if they attend a gathering and travel and inflict harm on others and unaware people are also responsible and liable for their infection according to the principle of precaution and the necessity of preventing loss (contingent damage) and the rules of warning (Arabic: تَحْذیر), domination and control, etc. cannot exonerate them from responsibility.