JOURNAL OF ISLAMIC STUDIES
Year:2007 | Volume:- | Issue:77 (ISLAMIC LAWS AND JURISPRUDENCE)|Papers Count:7

The principle of qasāma (compurgation) is among the significant principles in Islamic penal law, whose execution would safeguard deliverance of human community from anarchy, and maintain security for all human beings. Qasāma is a legal judgment under the topic of "lawth" (strong suspicion); ant it includes the evidences and signs which convey suspicion of the claimant's truth of speech. The question arising here is that whether in execution of compurgation special evidences and signs other than the surmised signs pointed out by legalists in Islamic penal law are valid or not.  What is brought up in this writing is that in respect to the importance that the Holy Lawmaker (The Holy Prophet–S.A.W.) gave to the issue of souls and blood, and in view of the traditions, in the realization of lawth and the execution of qasāma, other facts than the surmised signs and the complaint of the avenger of blood, such as the mischief records, iniquities, and apparent animosity of the person accused of murder with the murdered person, as well as the apparent justice of the oath takers, must also be taken into serious consideration.

Repentance (tawba) is one of the factors of returning to God, which has worldly outcomes as well, and in some cases, it cancels ḥadd (legal penalty) but many of its ordinances have not been demarcated yet. It is attempted in this article to deal with the discourses of repentance which have not been discussed or rarely discussed about; including the fact that repentance is not exclusive to any particular ḥadd, but can be extended to all penalties, even ta‘zīrāt (discretionary punishments); and the formal rules of legal penalties are subject to general rules and in case of being left in abeyance, legal sources are to be consulted. Furthermore, the subject of repentance in its general meaning is not exclusive to our own law; rather, it is employed in other law systems as well, as a means for fulfillment of the criminal's correction and as preventive of crime repetition, and an indication of the absence of dangerous condition in the criminal.

The issue of intellectual rights in the legal works has, due to its importance and long history in jurisprudence and Islamic culture, received much attention by the Shī‘a and Sunnī jurists, and has been subsumed under a special heading. Some of the Sunnī jurists have distinguished between legal and non-legal works, considering the works of the authors of legal works as non-legal and those of others as legal, even if created by a Muslim. Similarly, in case a non-Muslim undertakes to write legal works in relation to Islam, his financial rights are respected and approved, which is an indication of the Muslims' special concern with the promotion of Islam and its values. Thereupon, the present paper, while explaining the legal works, reviews the reasons of the opponents of financial rights of these works and asserts that although legal works enjoy special importance and status, there is no difference between the legal and non-legal works in terms of legality of financial rights, and the reasons proving intellectual property rights would similarly prove as legal the financial rights of both kinds of works. In one aspect, the necessity of fulfilling the intellectual or moral rights in regard to all works, including legal and non-legal, has been agreed upon and even the rights of the legal works have been accepted with more sensitivity by general public, even by the opponents of the financial rights of intellectual works.

Given the necessity of studying the mortgage of real estste and correcting the existing procedure in society, the present paper is examining the conditional sale as one of the legitimate mechanisms for such a mortgage, which is carried out for the purpose of turning a profit (istirbāh) as well as earning lawful incomes. After giving a literal definition of "option sale"–which in our old jurisprudence literature had been used as what is today called "conditional sale"–and referring to the semantic development of this literature from option sale to conditional sale, the author brings up the methods of conceiving "conditional option" and paying back the price, and then touches upon the objections raised to this issue and goes on to present the arguments for the authenticity and admissibility of option sale. He then proceeds with a brief look at the issue of the "fulfillment sale" in the Sunnī jurisprudence to find a way to adapt these two concepts to each other, and thereby to put to judgment the impression that the conditional sale can be taken into consideration as a substitute mechanism for what is today customarily carried on as mortgage of real estate.

Among different kinds of jihād (holy struggle), da‘wa (calling to Islam) has for centuries filled up legal sources with discussions. According to the legal popular belief, war against all kinds of infidels is obligatory and that they have to either convert to Islam or accept the consequences of war, such as murder, etc. only people of the Scripture are offered a third alternative, known as protective (dhimma) covenant. Apart from the feasibility of this phenomenon in the present human society, its theoretical foundations require accurate survey, too. What this paper is putting forward, following an accurate study of jihād arguments in the Qur'an, Sunna, and Sīra, is that the popular legal impression concerning jihād of da‘wa has been based on several obliged and unprovable issues such as adhering to the jihād generalities and expanding of claims of abrogation, and flourished through the ignorance of the rational and epistemic fundamentals and principles in the process of inference and the historical circumstances of legislation of jihād ; hence, a forged and indefensible issue, unless a new legal version of it is presented, which will inevitably be in contrast to the popular perception.

In Islamic jurisprudence (in Imāmī, Shāfi‘ī, and Ḥanafī legal schools), it is accepted as a rule that as long as the intention of creation and the agreement of the party to a contract is not supplemented to ījāb (affirmation, offer), no legal right will take effect, and the affirmer (mūjib) can withdraw from his affirmation any time before acceptance, with no responsibility ensued for his withdrawal. In contrast, the Mālikī jurists maintain that the announcer of ījāb can not withdraw his ījāb before the acceptance by the addressee. To their opinion, the announcer of ījāb creates by his announcement the right to accept and possession for the other person (i.e., the addresser), and the latter must be able to utilize this right. For this reason, the affirmer does not have the right to withdraw from his affirmation, and in case of withdrawing, his withdrawal would be invalid. This viewpoint is compatible with what is generally accepted in western law. In written legal systems and in some common law countries, the theory of coercive affirmation is accepted as an inalienable legal rule in law. Imam Khumayni, from among the eminent Imāmī jurists, believes concerning the function of ījāb in conclusion of an agreement that the simple affirmative creation (inshā’) is sufficient for the realization of a contract, and that acceptance has no function except in establishing the dealt transaction and accepting the creation of the announcer of ījāb. Nevertheless, he believes that ījāb is not coercive and the mūjib can withdraw from his ījāb any time before acceptance.It seems that from the viewpoint of logics of law and argument procedure no certified reasons can be presented for the theory of coercive affirmation (ījāb-i mulzim), and the acceptance of this theory faces difficulty in the realm of primary ordinances and rules.

This research addresses the theory of "Financial Compensation of Intellectual Damage" in Islamic law. After defining intellectual damage as damaging one's soul, body, reputation, sentiments, emotions, mind, art, and personal freedoms, the researcher of this paper employs the humanistic concepts, ethical system, and legal principles by virtue of library and jurisprudential methodology to prove the theory. Through widespread research into the principle of no harm, consideration of its issuance exigencies, application of harm and damage to the intellectual compensation, the possibility of proving the verdict, and in regard to the essence and criterion included in the above principle, as well as the philosophy of its establishment, he goes on to view the compensation of intellectual damage as necessary by means of known methods, one of which is the financial compensation. Given the application of the epithet of distress and constriction to many of the instances of intellectual compensation and the reliability of proving the legal verdict like the principle of no harm, the principle of negating distress and constriction signifies financial compensation of intellectual damage.