FIGHE MOQARAN
Year:2020 | Volume:7 | Issue:14 |Papers Count:12

Traditions show different decrees about fasting on the day of Ashura. Based on religious and political considerations, some of them consider it obligatory and some others consider it forbidden. The range of these differences began from the early traditionalists and it reached to its peak in the period of Akhbaris, and it has been continued till the present time, in the form of presentation of fatwas and the exegesis of the jurisprudential sources and narrative treatises. Analysis of narrations which admit it and narrations which reject it, based on Jurisprudence of Hadith, can be an important step in understanding the origin of their issuance and their correctness. In this way, understanding the impact of the great Incident of Karbala, the history of the issuance of these traditions, as well as the position of the Imams towards fasting on the day of Ashura, has a significant role in finding a common sense of these narrations. Imam Baqir (AS) and Imam Sadiq (AS), with the anticipation of the result of the act of fasting on the day of Ashura in deflecting the aims of Ashura Uprising, has confronted the schematization and heresy of Umayyad Dynasty, and rejected the issuance and content of these traditions and did not consider the content of these narratives compatible to the Incident of Karbala.

Contract of Trustworthiness (Bay‘ al-Wafa’ ) also known as Permitted Contract (Bay‘ al-Ja’ iz), Contract of Trust (Bay‘ al-Amanah) and Contract of Responsibility (Bay‘ al-‘ Uhdah), is a concept which emerged in Sunni jurisprudence in the late fifth century (AH) and there are lots of controversy in explaining its nature and rules. In Imami Jurisprudence, it has been referred to under titles such as Contract of Condition (Bay‘ al-Shart) and Optional Contract (Bay‘ al-Khiyar). Bay‘ al-Wafa’ differs from Bay‘ al-Shart in terms of jurisprudential background and some decrees. However, there are many similarities between them, because both are created on the necessity and are known as a sale contract and both have the property effects. There are also many controversies about the nature of this kind of contract and its effects in Sunni Jurisprudence. Following the Imami Jurisprudence, Bay‘ al-Shart has been included in the Iranian Civil Code, in articles 458-462, but changes have been made to its effects and the decrees related to it over time. On the other hand, the legislator in Afghanistan, following the Hanafi Jurisprudence, has included Bay‘ al-Wafa’ in Civil Code of this country. This paper attempts to study this legal subject in different Muslim schools of thought, determining the basis of legislation and the economic usage, and then it tries to analyze its nature, effects and decrees related to it, and express the evolutions which have been made in law in this regard.

Excommunication of Shiites has long been an issue of discussion. Supporters of this view has raised many reasons over history to prove their claim. However, considering Shiites as Non-Muslims, is not the consensus of all Sunnis, and while Some of the Sunni Scholars condemn the Shiites of heresy, some others believe that Shiism is one of the Islamic Schools and even imitation of the Ja‘ fari School is permitted. In addition, the reasons of Takfiri currents is not valid from the aspects of methodology as well as content. Therefore, Takfir or Excommunication is incorrect basically. Also, Takfir or Excommunication of Muslims has been considered Haram in Sunni jurisprudence. The general proofs of forbidding the excommunication of Muslims also denote forbidding the excommunication of Shiites. Forbidding the curse of a Muslim, Permission to imitate Ja‘ fari School, Purposes of Sharia, proofs of the necessity of unity of Muslims as well as the proofs of forbidding suspicion towards Muslim also signify forbidding excommunication of Shiites.

Economic crimes, because of their direct impact on the spread of criminality in the society and threats to the stability and security of societies, moral and legal values, sustainable economic development and the rule of law, have been causing concern to governments all over the world. Article 286 of the Islamic Penal Code 1392 has criminalized behaviours that are not compatible with the jurisprudential foundations of this crime. Additionally, it is difficult to determine the scope of these behaviours. Instead of legislating to prevent the escape of accused and perpetrators from criminal prosecution, the legislators have only increased the punishment and extension of execution, which is criticized in this way. The article discusses the challenges of expanding this crime to many conducts. Therefore, this can be counted as the title of catching all crimes.

Giving the choice and possession of the right to divorce to the wife is one of the most controversial issues among Islamic Denominations; there is disagreement in understanding the meaning of this among jurists; it can be said that giving the choice and possession of the right to divorce in its nature is a mutual and binding legal action in which the right to divorce can be transmitted to the wife, so that she can divorce herself at her own free will. The majority of the Sunni jurisprudents have considered that divorce is correct, but in Imami jurisprudence such a deed is not correct. Accepting the correctness of transmitting the right to divorce is not inconsistent with the general rules of agreements and contracts, and does not appear to contravene marriage, even though it is not in consistence with the purpose of marriage, which is to get pleasure from and to transcend generations. In any case, because of the traditions that do not consider this act to be correct, it must have been believed to be inaccurate, and it must be accepted that the wife’ s willingness to split the marriage by paying to the husband in the form of Khul‘ Divorce or Mubarat Divorce can be acceptable. There are various possibilities regarding the nature of transmitting the right to divorce, and according to verses 28 and 29 of Surah al-Ahzab, it can be said that transmitting the right to divorce is a non-binding commitment to divorce that the husband can revert from. Transmitting the right to divorce, as an independent legal entity, is accepted by the majority of Sunnis, although in Imami jurisprudence, although it has a number of supporters, it has not been accepted, and the fairness is that the verses 28 and 29 of the Surah al-Ahzab are specific to the Holy Prophet of Islam and they do not have any signification to the concept of transmitting the right to divorce.

Of the various categories of contractual performance bonds, performance bonds related to the absence of one of the essential elements of the contract can be mentioned. Usually, in Iranian Law, only the nullity of the contract has been mentioned and it has been considered synonymous with corruption of the contract, but in the Hanafi Jurisprudence that has affected some legal systems like Afghanistan, for the lack of some essential elements, performance bond for nullity has been considered and for others, performance bond for corruption has been considered and corruption has been regarded something between nullity and validity. In French Law, aside from nullity, the absence of the contract is also discussed which is mainly related to the lack of consent, subject and the cause for obligation, and in other cases, principally the performance bond for nullity is used. These sanctions have common characteristics and they are hindering the effectiveness of a contract, but each of these entities in the legal system have particular origin, effects and provisions specific for them. It seems that what is called in France, the absence of contract, is similar to the concept of nullity in Hanafi Jurisprudence and what is considered as nullity in France, in Hanafi jurisprudence is similar to the corruption of contract in some aspects. However, in Iran, only the entity of nullity has been discussed and what is called corruption and the absence of the contract in other systems, is discussed as nullity in Iran and given the lack of practical effect, there is not any good reasons to separate them.

Murabahah Bonds are among the new financial instruments designed to attract micro-investors and direct them to provide financing for economic projects. Muslim scholars have long since been thinking about filling the gap resulting from the removal of bonds using the properties of Murabahah, who in the same vein designed Sukuk Islamic bonds called Murabahah Bonds or Murabahah Sukuk, which could be a good complement to markets, money and Islamic capital to finance economic enterprises. These bonds represent the debt caused by Murabahah, and the owner of the bonds is the owner and creditor of that debt. These bonds are used to finance the purchase of assets. Some believe that there is a juristic difference regarding the financial transactions between Islamic schools of thought. This research is a step in jurisprudential study of Murabahah bonds. Therefore, with the research we consider the law both in Jurisprudential Committee of Iran Stock Exchange Organization, the majority of which are approved on the basis of Shiite jurisprudence, and the jurists and members of Sharia Board of the Central Bank of Syria, the majority of which are approved on the basis of Sunnite jurisprudence. We will try to determine common perspectives and divergences about acts approved by Jurisprudential Committee of Iran Stock Exchange Organization, and ideas and opinions of jurisprudents and viewpoints of the members of Sharia Board of the Central Bank of Syria about these acts.

According to Islamic law, swearing to God Almighty, is one of the ways to prove or abstain a claim. One of the issues raised and discussed in relation to the oath of office is the oath of the non-Muslim person, expressed in terms of swearing by non-Muslims, and the way it should be done. The present study investigated the Qur’ anic principles and the validity of non-Muslim judicial sworn judgments in Imami and Sunni jurisprudence. In Imami and Sunni jurisprudence, according to the common narration, the oath of office of non-Muslims is absolutely accepted. However, by examining the Qur’ anic and narrative arguments, it is necessary to take this issue into account in a more detailed way. Therefore, swearing of Ahl al-Kitab (People of the Book), swearing of Non-Muslims other than Ahl al-Kitab for defending themselves (as the accused), and swearing of Non-Muslims other than Ahl al-Kitab who believe in God (as the claimant) are accepted. However, swearing of Non-Muslims other than Ahl al-Kitab, who do not believe in God, as the claimant must not be accepted. Also, according to the majority of Imami jurisprudents and the consensus of Sunni jurisprudents, the oath of the infidels (Ahl al-Kitab or other than Ahl al-Kitab) must only be taken to Allah the Almighty or His specific names. And finally, most of Imami jurisprudents and majority of Sunni jurisprudents believe that infidels are not obliged to confirm the sacred oath.

Expediency originates from Sharia and is defined as distinguishing good deeds from bad deeds. The long history of expediency in Shafi‘ i and Ja‘ fari jurisprudence makes it justifiable to conduct comparative studies. Shafi‘ i jurisprudence considers expediency as a kind of argument, covering all kinds of expediency-based Ijtihad by expanding the scope of syllogism. Employing rational perceptions and conforming modern issues to existing reasons, Shafi‘ i jurisprudents use exegesis-based Ijtihad, syllogism and Exigency-based reasoning. Ja‘ fari jurisprudence considers certain perceptions of rationality as the basis of truth, and considered pursuing them necessary like Sharia laws. In both Shafi‘ i and Ja‘ fari jurisprudence, intellect has been accepted as a means for deducing governmental rulings based on expediency, but there are differences among these two kinds of jurisprudence in terms of function and application. Expediency plays an essential role in the scope of governmental rulings. Governmental rulings are issued and implemented depending on expediency. These rulings are expediency-based and are not considered as permanent rulings.

Condition in jurisprudential terms is a subordinate obligation that the parties make. From the viewpoint of jurists, a condition is necessary to be fulfilled which is stated in the text of the contract, and that condition is called a by contract condition. In a by contract condition, specific attributes, doing or lack of doing an action or the result of something is required from the other party. Since the condition of the marriage has been confirmed in the same way as the marriage contract itself, it has been considered to be valid for such condition and to have its effects and ordinances as well as its validity or inaccuracy. The condition is divided into two parts, the correct and the void, in terms of whether or not the General Terms and Conditions are valid. Sometimes, if the general terms and conditions do not meet the accuracy of the condition, the contract is also void. In this article, requirements of the contract, and as a result the conditions which are opposed to the contract’ s requirement-which nullify the contract from the viewpoint of most jurists-will be analyzed from the viewpoint of Imami and Sunni Jurisprudents.

Insult and curse are the acts which directly belittle the peoples’ prestige, spiritual integrity and dignity. These acts both in Islamic Jurisprudence and penal legal systems are prescribed as crime and they are punishable. The direct injury caused to the peoples’ dignity and prestige is the main legal base for criminalization of the acts in legal systems. Legal systems in Iran and Afghanistan have also criminalized the acts and prescribed punishment for them. Unlike the similarity of the two legal systems regarding criminalization of insult and curse, their nature and examples differ from each other in these two legal systems. In Shia Jurisprudence the person who uses the language of insult, quip or hurt is recognized as insulter or curser and is punishable under the “ Ta‘ zir laws” . In Sunni Jurisprudence the acts are not admissible and Sunni Jurists have recognized the acts as immoral and blamable. And the insult and curse are punishable as “ Ta‘ zir” if they belittle the one subject to them. In this article we are to study the concept and examples and punishments prescribed for insulting and cursing people through analyzing the approaches followed by Jurisprudence of Islamic Schools of thought and Iran and Afghanistan legal systems.

The definition of irreversibility rule provisions about void affair is that, in case that if someone voids his own rights such as preemption, retaliation, etc., he cannot undo and enforce his voided right again. Imami and Sunni jurists’ verdict for most of the Islamic Jurisprudence chapters includes the irreversibility of the void affairs and in contrast, some Imami and Sunni jurists’ accept the reversibility of the void affairs. It seems that verses 178 and 237 of Surah al-Bagharah, evidences from Sama‘ ah, Fudhail, and Abi-Basir, and also some jurisprudential rules like Rational Reasons, Wise Peoples Rules and Lack of System Disorder and Lack of Hardship signify the reasonability of this issue. Based on the prevalent usage and practicality of this rule in Jurisprudence of Schools of thought, the current research intends to express the nature of a Void Right, and review Voidable Affairs, reversibility and irreversibility in Jurisprudence of Schools of thought and then elaborate jurisprudential reasons of the aforementioned rule.