FIGHE MOQARAN
Year:2019 | Volume:7 | Issue:13 |Papers Count:14

With the emergence of Islam, different sciences were developed in response to religious and rational questions of human being, each of which has a background about the texts and the speeches attributed to the lawmaker. However, the truth is that the flexibility of Sharia is not limited to shallow and superficial understanding of these texts and it requires a precise and structural approach to inference of Sharia laws and correct understanding of religious texts and speeches. Hence, referring to Quranic verses and traditions, without specific criteria and solely for the purpose of treating the appearances of the texts and the lack of a proper structure for understanding the texts leads to accuse people of disbelief and as a result of the spread of Takfir in Islamic societies. This paper seeks to analyze one of the most important effective legal methods in expanding Takfir in different historical periods. Looking at the historical course of the jurisprudence of Takfir in Islam, we understand that one of the roots of the production and expansion of Takfir is a particular method called “ Resorting to the Appearance” , meaning “ Superficial Understanding” and direct referral without intermediary to texts. Although various causes have been mentioned for the Takfiri currents, but the expansion of Takfir was due to the merging of other sciences with jurisprudence. Therefore, some jurisprudents provided the expansion of Takfir through the appearance of texts in the science of jurisprudence and Religious views. Now, after centuries, Islamic societies are suffering from the crises created by these groups due to the lack of prevention through the promotion of the correct and rigorous methods of Ijtihad.

Tradition (Sunnat) refers to the deeds, sayings and permissions (or disapprovals) of Infallibles (pbut) which are the essential sources of understanding the decrees after The Holy Quran. When Quotes which convey Tradition (Sunnat) include a decree or law, they are considered as a reason for jurisprudents, and in jurisprudential term, they say that the Tradition (Sunnat) can be used for legislation. However, sometimes, Tradition (Sunnat) narrates the execution of a law or decree by the infallibles (pbut). In these cases, jurisprudents do not consider it for legislation. Now the question will come up: “ Is there a rule for recognizing these two types of quotations? ” If it is possible to extract such a rule out of the sayings and quotations, there will be a revolutionary change in understanding decrees. In this article the author sets a framework to distinguish traditions representing judgment or traditions representing the way of execution in legislation.

There is disagreement among jurists in answering this question whether the rights related to the object will be transferred by transferring the object itself or not? The origin of this dispute, especially in the examples, is that there is no general principle regarding this subject. It is necessary to note that the rights which are related to the object can be dependent to the object or to the owner. The rights related to the owner will not be transferred, unless it is expressed explicitly. However, the rights dependent to the object, will be transferred by transferring the object. Although some lawyers say that we should find objective basis for the effects of a transaction, but it seems that we should make a distinction between Transferring through Contract and Transferring by Force. In this study based on analytical method, we established a general principle based on the direct resources of Islamic jurisprudence and its evidences. The author has reached to the conclusion that in Transferring by Force, the principle is transferring the rights to the new owner of the object, and in Transferring through Contract, the principle is non-transferring of rights.

A civil partnership contract is one of the contracts where the partners’ goal is to achieve higher profits, so that the ratio of the amount of capital or work is always effective in determination of profits. However, the discussion of Counter-Condition of the Relative Liability has long been the subject of jurisprudential and legal circles, and in total, three perspectives have been raised in this regard. It seems that the strongest view should be the correctness of the contract and condition that its root should be investigated in judicial policies and social expediencies, because the freedom of wills is the principle. This principle is based on social and economic expediencies and it is more consistent with the aim of creating a public and economical order. Moreover, such a condition is against the requirements of the absoluteness of company contract and does not have any negative effect on accuracy of the contract. In the present paper, we try to review, examine and analyze the theories raised in this regard, and ultimately, with a solid proof of the process, we will take a step towards accepting the theory of the integrity of the condition against the relative liability in civil companies.

The civil code has expressed the conditions of a property which can be the subject of mortgage but the possibility of the mortgage of a shared property has not been mentioned. Regarding the silence of the civil code about the issue, it can be inferred that a shared property can be the subject of mortgage. However, this issue is the subject of conflict among experts. Hanafi jurisprudents believe that mortgage of a shared property is impossible without the consent of other share holders but jurisprudents from other jurisprudential schools have different ideas about the necessity of asking for permission of other share holders in pre-empt situation. Among these different ideas, the idea of Shi‘ a jurisprudents is that it is necessary to ask the other share holders for permission in pre-empt situation. This idea is generally accepted in the present legal system as well. The reason is that although in reality, the shares of each share holder cannot be separated, but theoretically they are separable and independent. Therefore, mortgage on a joint property is possible but in pre-empt situation it is not possible without the consent of other owners, since it interferes with their rights. So, parties’ agreement on mortgage of a joint property is correct while in pre-empt situation it needs other owners consent or otherwise it would be subject to liability and the accuracy of such contract is under question too. Moreover, and on the contrary with what it has been said in Fiqh, it seems that it would not be right to make other owners give their consent. Therefore, the only solution is to divide the property. Also, if there is no agreement about the person who is going to deliver the property, the court would be the right person for it.

Based on the type and combination of raised capital, Partnership has been divided into four types of ‘ Inan, A‘ mal, Wujuh and Mufawadhah. Opinions differ greatly over the validity or invalidity of these types of partnership. Analyzing Islamic books reveal that disputes over A‘ mal and Mufawadhah partnership are more conspicuous. This controversy among Islamic jurists has made its way into the legal books as well. The most important reasons expressed by proponents of the validity of Wujuh partnership is related to the existence of some Hadiths, silence-based consensus, the special concern of Islam for cooperation and the nature of this partnership being a mixture of mandate and bail contracts. Instead, the opponents point out the incompatibility with public policy and morality, uncertainty, consensus, lack of Shariah-based evidence in support of the validity of this partnership and consensus. Putting emphasis on Shiite writings and taking a glance at Hanafi, Hanbali, Maliki and Shafi‘ i works and analyzing the reasons expressed by the proponents and opponents, this article seeks firstly to define Wujuh partnership and its various types, and reaches this conclusion that Wujuh partnership, in its common concept, is null and void in Shiite and current Iranian law accordingly.

Wilayah (Guardianship) is the power of directing seizure without any need to the permission of anyone. In marriage, Wilayah is the idea and comment of Mawla about Nikah (marriage) and agreement or disagreement about it. Constant occurrence of the religious difference between Mawla and Mawla Alayh in the present era requires expert review of this case, including its impact on Wilayah in marriage. This research is a descriptive-analytic approach in which the central issue was the study of the effect of Religious Difference between Mawla and Mawla Alayh in the guardianship of marriage. We came to the conclusion that, Islamic scholars have agreed on the religious agreement between Mawla and Mawla Alayh as the requirement to establish the guardianship in marriage and they have mentioned Quranic verses, traditions and ’ Ijma‘ as the reasons for their opinion. However, there are controversies over these reasons. If there is not religious agreement between Mawla and Mawla Alayh, the jurists believe that Wilayah and guardianship of Wali is annulled and another person will have the guardianship of marriage. In general, according to the permission of Wilayah in marriage and the controversies on the reasons about religious agreement, it seems that in a state of urgency and necessity, considering the expediency of Mawla Alayh, the religious difference between Mawla and Mawla Alayh do not have effect on the establishment of Wilayah and correctness and effects of marriage.

In narratives quoted by holy prophet (pbuh) and the Imams (pbut), divorce is considered as a hateful subject and those who divorce their wives with no sufficient reasons are seriously criticized. Several narratives in Shiite or Sunnite texts and many other references suggest Imam Hassan (pbuh) as a Mitlaq (The Divorcer) who had gotten married with several women but divorced them consequently without any specific reasons. Such narratives are in conflict not only with the narratives which call him the chief of the youth of Eden, but also with his highly religious rank and adorable piety. A close investigation through Sunni narratives indicates that being Mitlaq has never been mentioned in any of the six main Sunni books and there are only two narratives in this regard in Musnnaf Ibn Abi Shaybah, the narrator of one of which is accused of negligence and hallucination. On the other hand, though there seems to be a rather large number of such narratives among Shia narratives, they can’ t be counted on due to their anonymous and weak narrators or the undependability of the documents. Not only are the accounts narrated in history books written with a large temporal distance from the life time of Imam Hassan (pbuh), but also due to discontinuity of the document, narrator’ s weakness and other such deficiencies none of them can be relied on. Therefore, it can be concluded that with regard to the accurate narratives regarding commitment of Imam Hassan (pbuh) to religious commands and his avoidance of illegitimacy or even Makruhat on the one hand, and the inaccuracy of the narratives regarding his being Mitlaq on the other, attributing being Mitlaq to Imam Hassan (pbuh) contradicts the reality and, though noted, has no scientific basis.

Two people, in the absence or presence of another person, testify against him in front of a judge that he divorced his wife, and then they unsay their testimony. This issue can be examined from two perspectives: The first is the judge’ s verdict; if the witnesses’ unsaying is before the issuance of verdict, the divorce decree will not be issued. This is the consensus of the Islamic schools of thought. If the referral is after issuing the divorce decree, there is a controversy in annulment and non-annulment of the divorce, although the opinion of most Islamic jurists is not annulment of the decree, but according to the importance of divorce, in the absence of consensus, the annulment of the verdict is not inconsiderable. The second is the warranty of the witnesses; the divorce usually has a financial burden on the husband, and if the divorce is before marital practice, or after that, the husband pays half or all of the dowry, and the payment of the dowry is apparently due to the testimony of the witnesses; therefore, in the occurrence of divorce prior to marital practice, according to the opinion of majority of jurisprudents, the witnesses are warranty of paying half of the dowry to the husband because they have caused of paying something that could have fallen because of cases such as apostasy of the woman. The other opinion is the lack of warranty of witnesses. At the same time, if the warranty of witnesses is considered, paying half of the dowry for a woman is correct, because if there were no witnesses of marital practice, the woman would have the entire dowry and this possibility is stronger than the possibility of the woman’ s apostasy that would be caused ineligible getting a dowry. And if the unsaying of testimony is after marital practice, according to the fact that husband’ s warranty is due to the marriage contract and does not relate to the testimony of the witnesses, there is no warranty and responsibility to the witnesses. Of course, the idea of the majority of jurists is that, the husband’ s use of benefits of married life is the reason that there is no warranty to the witnesses.

Scientific progresses and creation of various offices and businesses with new methods of money making on one hand and lack of affordance to buy required building of the business on the other hand, resulted in the prevalence of lease more than a year between people and communities. Among Shia Jurists, Allamah Helli investigated lease more than a year for the first time and referred to some examples. In Sunni sects, Hanafiyah mentioned lease more than a year for the first time. Shafi‘ i, Malik and Ahmad bin Hanbal mentioned that such a lease may be considered possible. In present study, performed analytically and descriptively, the accurateness of lease more than a year is concluded by some reasons while referring to rental agreements. Long time ago, medium-term annual lease or short-term lease for a couple of months was frequent due to the simplicity of the people. However, lease up to thirty years was common in Bokhara, although some Sunni scholars like Shafi‘ i, restricted long-term lease to thirty years and did not allow longer lease terms. Such idea was justified as thirty-year term is an exaggeration and it meant renting the building not the land and the building will not survive for longer term. Accordingly, lease duration depends on the survival of the building and making a restriction like thirty years for that does not make sense. Different Islamic jurisprudential schools stated the possibility to divide the rental price and use multiple contracts to prevent loss of both sides as of some problems like inflation.

In the legal term “ Shubhah” (doubt) is to mix two things to each other, so that it is possible to have two judgments. In other words, an item with Shubhah is permissible in one direction, but in another direction it is forbidden. Shubhah of Tariq which is the jurisprudential difference resulted by the reasons is one of the different kinds of Shubhah. In Shubhah of Tariq which is a difference in ideas between the Jurisprudents in Ijtihad, since there is no preference for any of the ideas due to the convergence or conflict of the evidences, and the ideas are controversial, the doubt requires that the punishment be dropped. With regard to the induction and account of reason in the context of doubt in Islamic law, the bases of Shubhah of Tariq in the annulment of punishments are: Precautionary Principles, Observance of Disagreement, Conflict of Evidences, and Principled Adoption and Contradiction. The achievement of this paper, which deals with a hypothetical descriptive analytical approach, is that jurisprudential controversy about punishment leads annulment of juridical punishments.

Insanity during the occurrence of crimes annuls the issuance of Qisas decree. No one of jurisprudents has any doubt about it, but what is the position of divergence among the jurisprudents of Islamic denominations is insanity after committing the crimes which can occur before the issuance of the decree, or after it and during the execution of Qisas. In both steps, there are generally two theories among jurisprudents of Islamic denominations: 1. The theory of lack of annulment by Imami, Shafi‘ i, and Hanbali jurisprudents. 2. The theory of ceasing the process of trial and cancelling the execution of Qisas which is believed by Maliki and Hanbali jurisprudents. Maliki jurisprudents believe that in case that there is no hope for improvement of the person, Qisas will be annulled but Diyah should be spent from his or her properties. Hanafi jurisprudents believe that if the insanity happens after the issuance of the decree and before his or her surrender for the execution of Qisas, the issuance of Qisas decree will be annulled and it will be changed to spending Diyah, However, if the insanity happens after the issuance of Qisas decree, Qisas will be executed. In this article, the reasons for each of the ideas will be analyzed and the theory of ceasing the procedure of trial and punishment and also the annulment of Qisas in case that there is no hope for improvement of the person, is considered defendable.

Apostasy in the jurisprudential texts of Islamic religions has very difficult consequences. However, in the rules of the law, this act has not been recognized and no punishment has been set for it. Brief legal material referring to the topic of apostasy does not include the determination of punishment for the apostate. Given the fact that the constitution of Islamic Republic of Iran considers it necessary to refer to credible Islamic sources, in the event of silence, defect, urgency or conflict of laws, criminal prosecution of apostates in criminal cases and the determination of civil liability in civil cases, according to valid legal texts is necessary. The civil effects resulting from apostasy include the dissolution of marriage, confiscation of property, deprivation of inheritance, and the fall of guardianship on the child. The criminal effects of apostasy are imprisonment and execution depending on the type of apostasy and gender of the apostate. Findings of the research confirm that, however the law is silent about apostasy and there is a controversy among the jurisprudents about the punishment of the apostate, there is no doubt about the exertion of civic effects on the apostate person.

This research is designed to provide a new look at the analogy (Qias) and its application in Islamic law. An overview of empirical foundations suggests that most previous studies have emphasized the widespread disagreement between Shia and Sunni jurisprudents. It is often believed that there is no analogy between Shia and Sunni in the theoretical application of analogy. However, contrary to common beliefs, there is a broad resemblance to the use of analogy between jurisprudents of Imamiyyah and Sunni scholars. The jurisprudents of Imamiyyah, like the Sunni jurisprudents, use the analogy in many cases; but they use it with other titles, such as Tanqih-e Manat, etc. Thus, Shiites do not oppose the use of analogy in jurisprudential affairs; they do not accept the use of analogy in all affairs; whereas the Sunni jurisprudents do not have any reason to question analogy whenever there is no reason for a ruling in the Quran or narratives. They are convinced to use analogy because of the perception of the causes of Sharia Laws in issues related to everyday life of human, and also because of the inability to access to the true causes of all religious laws. In contrast, Shiites are skeptical about the use of analogy in all affairs, but practically, they use analogy in many cases and only in limited cases, they try to infer the laws with other means.