FIGHE MOQARAN
Year:2018 | Volume:6 | Issue:11 |Papers Count:8

Famous Shiite jurisprudents consider alimony of wife as a custom, while the traditions and fatwas of the old jurists consider alimony as predetermined. In the history of this jurisprudential issue, the Mabsut of Sheikh-e Tusi is a turning point in the conversion of predetermined alimony to customary alimony. Sheikh-e Tusi, the great Shiite jurisprudent, has used Shafi‘i jurisprudence in this development. The effect that Sheikh-e Tusi has on jurisprudence in this regard is the main issue of this article. This article criticizes the model of Sheikh-e Tusi in the development of jurisprudence by examining the alimony of the wife in Shiite and Sunni jurisprudential books before the Mabsut and jurisprudential books after the Mabsut.

The rule “Al-Kharaj bi Al-Dhiman” is one of the rules which has been quoted from the holy Prophet of Islam exactly with the same words, and Sunni and Shiite jurisprudents refer to it or cite it in jurisprudential arguments. Although, the brief concept of this rule is clear and shows the correlation between profit and loss, but the scope of its implementation is the position of different votes. On the one hand, some jurists did not heed to it, and said that because of the weakness of the narrative, it should not be acted upon. On the other hand, some others have expanded its scope to all sorts of civil liability and transactions. It seems that, according to the arguments of supporters and opponents, the concept of this rule has to be extended as a principle to all correct and corrupt transactions and to cases of civil liability. But it should be noted that things such as usury transactions are out of the scope of this rule, and issues such as gambling and betting must be specifically excluded for the specific reason. Additionally, there are similar rules which represent the correlation between profit and loss, which by analyzing them, we have come to the conclusion that these rules express the full content of the Kharaj rule, or part of it.

Although the foundation of laws in Islamic denominations is based on the Quran and Sunnah, but from one side, the methods based on principles, interpretation and inference from the Quran and traditions are different among religions, and on the other side differences in jurisprudential sources leads to differences between laws and fatwas in some subjects among the Islamic denominations.  Also, regarding the historical background and precedence of non-Shiite denominations in governance, a question can be raised here: what was the approach of scholars of non-Shiite denominations in the history considering the rights of disabled people?This article has been written based on analytical-descriptive method in order to investigate the rights of the disabled persons in historical and jurisprudential sources of different Islamic denominations, and it tries to review Sunnite governors’ historical background, and Sunnite and Shiite jurisprudential sources in order to find an appropriate answer to this question: what are the approaches of different Islamic denominations to the rights of disabled persons? The research proved that, from the jurisprudential perspective of all Islamic denominations, disabled persons have specific rights in all human aspects. Dealing with these rights is partly considered as the responsibility of government and it is partly considered as the responsibility of the society; during the history and for governments in the history of early Islam, these rights have been considered and performed. Therefore, it is now a religious duty for the Islamic governments to grant the rights of disabled persons. In the present study, the issue of making appropriate environments for the disabled persons has been dealt with as a rational and legal right for the disable persons.

the scholars of Islamic denominations are not agreed upon the true meaning of the term “Nikah” (marriage). The preponderant and superior opinion among Islamic jurists is that the word “Nikah” (marriage) in fact means legal contract. The proponents of this view have relied on Quran, tradition, and reason to prove their theory. This group believe that marriage means legal contract in the Qur'an in all verses. In contrast, a group of jurisprudents consider the meaning of “Nikah” as sexual intercourse (Waty) and another group believe that it has both meanings, i. e. intercourse and legal contract. Some jurists have also said that it means “Dham”. Each of these groups have cited proofs for their theory from Quranic verses, traditions of the holy Prophet (pbuh), and rational reasons. The acceptable proposition is the promise of the first group, since copulation and Waty (sexual intercourse) is obscene, and it is considered immoral. Also, in the holy Quran, the word has merely been used to refer to the meaning “legal contract” and the authenticity of the denial of the meaning of Waty (sexual intercourse) implies the metaphorical use of Nikah in the sense of Waty. Disagreements on the matters such as testimony in marriage and the creation of Mahramiyyat due to adultery are the results and effects of disagreements in this discussion.

Marriage is one of the important issues that is associated with the creation of mankind, to which the God also attaches high value. One of the essential issues of life and marriage is providing women with a livelihood, which shall become a duty of husband upon marriage. Therefore, husband should have the ability to provide his wife with livelihood. Sometimes people marry with the knowledge that they are not able to pay such livelihood, with the wife marrying upon the confidence that her husband has the ability to pay such livelihood, and then after marriage she finds out that her husband is unable to provide such livelihood. Here the question arises why the wife has the right to terminate such marriage; and if such right is the right to marriage annulment or the right to divorce. Shiite scholars have presented three perspectives on this subject, and it seems that according to the evidence adduced, wife has the right to annul the marriage in such case. The most important proofs for such right are hadiths and irtikāzi (common sense) condition considered for the marriage contract and its absence at the conclusion of such contract. Further, this research made comparisons with the four Sunni schools of jurisprudence and discussed the views of Sunni scholars and their arguments.

One of the options (Khiyarat) considered in jurisprudential discussions is the option of loss (Khiyar-e Ghabn). It means that whenever there happens an ownership more than or less than its value and the other party is not aware of it, “Ghabn” has happened and if the loss is gross, the loser party can cancel the deal. Shiite Jurists presented three different basics and several evidences to prove option of loss. Fundamentals consisting of: Satisfaction Default, Violation of Implicit Conditions and the Denial of Damage. From amongst the Four Sunni Schools, only Hanbalis and Malikis believe in option of loss and have paid less attention to its fundamentals and analysis. Hanafis consider option of loss as a kind of deception and deceit. However, these fundamentals have been analyzed and criticized and “The Denial of Damage” view which is proportionate to the requirements of jurisprudence seems more reasonable.

The Emergence of modernity in the Islamic world, has been followed by many challenges. The Muslim traditionalists resisted against it and this controversy has taken place endlessly up to the present. One of the areas of challenge in this regard is Islamic jurisprudence. The discourse of modernity tried to use western law (civil or common) in Islamic societies; In contrast with modernists, traditionalists, while believed in the ability of Islamic jurisprudence in Islamic history, opposed them. The intense pressure of the discourse of modernity and the requirements of the times, forced the traditionalist discourse to investigate possible solutions and they found the solution in codification of Islamic Jurisprudence which caused to keep the Islamic character of the society, on the one hand, and develop the “Comparative Approach” in Islamic Jurisprudence, on the other hand. The present study is aimed at investigating the first attempts to codify the Islamic Jurisprudence and its effects through the historical approach and analysis of the written sources.

Determining the age of puberty and, therefore the‎ age of religious obligations is one of ‎the issues that has been ‎‎considered by Muslim Jurists from a long time ago. ‎However, ‎‎according to the well-known view of jurists, there is no ‎‎difference between ‎the age of religious obligations and various ‎‎responsibilities arising from it, but the ‎declaration of three ‎‎types of responsibility in Jurisprudential sources of some Islamic denominations caused that the authors study, not only the ‎jurisprudential-legal ‎foundations of ‎different responsibilities, but also the accuracy and efficiency of this view in Islamic legal ‎system.‎ This study states that, ‎although, the physical signs or criterion of age can be used ‎to determine the puberty, but the disagreement of Islamic denominations about the age of puberty shows that puberty ‎has a variable concept whether applied in the worship issues or ‎civil affairs or criminal matters.‎ In normal conditions, criminal puberty becomes ‎after worship puberty; ‎because understanding of the concept of crime and punishment can be created in most of the people after understanding the concept of ‎respect to the creator and financial gains and losses. ‎Consequently the responsibility arising ‎from the adults behavior is different in these three areas and the responsibility ‎arising from crime, forms after worship responsibility and financial responsibility in civil matters.