FIGHE MOQARAN
Year:2017 | Volume:5 | Issue:9 |Papers Count:6

Money is a significant subject in law and jurisprudence. A Jurist or Faqih should understand modern nature of money to be able to give a precise decree about it and other phenomena related to it. Money has evolved during the past fourteen centuries so that we should understand function and role of the money in the modern society. Decrease of the money value and necessity for amending its value is among discussions during last decades. Different folks of the society deal with the issue. For example repaying the debts with the high inflation in society relates to people’s attitudes towards the essence of money. Opponents and advocates of the necessity for amending money value have different views on the issue. The two sides refer to some reasons including fungible money and prices of goods for their claims. Based on a descriptive-analytic method, the research reviews different standpoints of religious scholars on modern essence of the money. There are various viewpoints but most famous Shia and Sunni scholars believe that credit money is a fungible one. The researcher tries to prove the consistency of the ability of buy and sell by credit money.

Imami Jurists believe that father and paternal grandfather have been introduced as natural parents of minor, insane and lunatic (whose insanity and lunacy has been continuous to their minority period) but Sunny jurists have different opinions about Natural Guardianship; therefore, Maliki and Hanbali jurists have not applied and exercised the paternal grandfather as a guardianship in their schools. Iranian legislators have followed Imami jurists and the natural guardianship of the father and grandfather has been explicitly required in civil law. Islamic jurists and consequently Iranian legislators, in order to protect ward, have required vast powers for natural guardian; therefore, the father and paternal grandfather have full power to represent the ward’s property and the presumption is that the interest of the ward is observed; therefore, as long as the interest of the ward is observed the activities of the natural father or the parental grandfather are legally effective and enforceable, unless the contrary is established. However, sometimes the natural parent does not do his corresponding duties and misuses his power and applies his personal purposes and doesn’t observe the interests of the ward and causes loss to him or her. In the present study, an attempt has been made to deal with treachery and violation by natural guardian and explaining the samples of the violations of natural guardian. Also, in this study, the responsibility of natural parent about ward and also the viewpoints of Islamic jurists and Iranian legislators have been discussed. Deposing the natural guardian who has violated is the strategy and the executive guarantee that Imami jurists have predicted for the treachery and incompetency of natural guardian. Also, in some Sunny denominations, deposing the natural parent has been predicted. Pairing the trustee to natural parent was the strategy predicted by legislators for executive guarantee which was not effective. Finally, the law has been developed for adapting Imami view and fulfilling the requirements. For this purpose, deposing of natural parent has been predicated in article 1184 of civil law for protecting the ward and observing the interests of the ward.

Determination of the subject of marriage contract is one of most important discussions in juristic prescriptions for marriage in Islamic law. However, Islamic jurists and scholars did not mention it as an independent title in law and jurisprudence. These issues are often discussed under some other decrees like Marriage Portion, Oath, Wife’s Disobedience and Spouses’ Marital Relations. There are five juristic comments about the subject of marriage contract: The majority of Hanafi jurists and a group of Hanbalis and Shi‘as consider Taking Advantage of Woman’s Body as the subject of marriage contract. The majority of Hanbalis and Shafi‘is believe that the subject is The Permissibility of Enjoyment from each other for each one of the spouses. Some of Hanafi jurists and a group of Malikis and Shafi‘is had named the wife herself as the subject of the contract; And majority of them believe that both husband and wife should be considered as the subject of marriage contract. Finally, the majority of jurists and interpreters consider Taking Advantage of Woman’s Body, The Woman’s Body, and The Permissibility of Enjoyment as the subject of marriage contract. Each one of the mention five groups of scholars have invoked to some logical and juridical reasons for their rune. After a logical and scientific evaluation of all of these reasons, we can say: “the prescription that has mentioned the “Permissibility of Enjoyment” for both husband and wife as the “subject of marriage contract” is nearer to fact. Because, firstly the enjoyment is mutual right for spouses and if the wife had no right for enjoyment, it would not be necessary for men to ask for permission for ‘Azl (having an imperfect sexual course). Secondly, acceptance of other viewpoints can have some effects which are not often matched with Islamic law and even they will not provide the basis for an Islamic safe family. From the other side, acceptance of this view requires two important rights for each one of the spouses. The husband has the right for cancellation of the marriage contract in cases in which the wife has some basic problems. On the other hand, the wife can request her wage for house works or breastfeeding a baby.

The rule of “Avoiding Corruptions Takes Priority over Gaining Benefits” is one of the most widely used jurisprudential rules. This rule is one of the branches of the general rule of “prohibition of detriment” (la dharara va la dhirar fi al-Islam). Although this rule has been raised more widely among Sunni Jurisprudents, it has been cited frequently in the books of jurisprudence and principles of jurisprudence of Sunni and Shi‘a scholars. Since the purpose of Sharia regulations is to protect personal and social interests and the rule of “Avoiding Corruptions Takes Priority over Gaining Benefits” is one of the rules relating to interests and corruptions, therefore the relationship between this rule and the theory of ultimate religious purposes for practical regulations (Maqasid al-Sharia) to protect the observance of interests and the avoiding of corruptions can be considered a serious strategy to answer new problems. This article seeks to study the position, content, bases and conditions of the application of the rule of “Avoiding Corruptions Takes Priority over Gaining Benefits” and to clarify its relationship with jurisprudence of ultimate religious purposes for practical regulations (Fiqhal-Maqasid), unspecified interests (Masalih al-Mursalah), blocking the means (Sadd-i Zarayi‘) and related jurisprudential rules. Also, this paper studies the effects of the above rule on the jurisprudential inference in the scope of worship, transactions, rulings and political jurisprudence in Sunni jurisprudence and Imami jurisprudence, and especially in emerging issues. We hope that the scientific and deductive study of this rule can be effective in jurisprudential approximation and the promotion of jurisprudence of ultimate religious purposes for practical regulations (Fiqh al-Maqasid) and strengthen the inferring of religious rules (Ijtihad).

The punishment of father in the case of the murdering his child is forbidden, and this issue is accepted by all jurists, as well as announced by the Article 301 of the Islamic Penal Code. But sometimes, father makes a crime against someone who is the avenger of blood for the victim, and in fact the child is not directly subject to the crime. However, the child finds the right of “Qisas” against his father for his crime against his wife. In this case, There is a dispute between jurists whether the child can claim Father’s Qisas or not. In this regard, a group of jurists, based on reasons such as prioritization analogy and the narration of “Father cannot be punished for murdering his child” and the narrations about Qadhf, believe in impossibility of punishing father. The other group rejects the arguments cited by the first group and considers this a subject under general indications of Qisas. In this article, reasons for both groups of jurisprudents have been discussed. According to the study of the documents of the two groups, the theory of the possibility of father’s retribution can be defended.

Many legal systems in the world, including the legal system of Islam has accepted Execution as a punishment. Some of the most important issues in this regard are the quality and instruments of execution and the rights of the person executed. Is it allowed to execute anyone who deserves to be executed through every quality and instrument? Specifically, is it allowed for them to be burnt in the fire? The importance and necessity of this issue is apparent, because recently some Islamic groups, in the name of Islam, are openly inciting to burn their enemies alive. This research was conducted using descriptive-analytical method and using library and documentary data collection method. The evidence of the “forbiddingness of burning people alive” and “critique of its licensing” and “the claimed exceptions from the prohibition of this action” have been evaluated. The results show that there is no valid reason to attribute burning a living man to Islam and the infallible Imams.