FIGHE MOQARAN
Year:2024 | Volume:11 | Issue:22|Papers Count:12

In the eyes of Islamic denominations, any right that causes the intellectual development of human being shapes his identity and personality, and causes his mental and spiritual excellence is included in the category of cultural rights. In the upcoming research, the cultural right has been explored and analyzed from the point of view of the jurists of the Islamic denominations. Therefore, the basic question that we are looking for an answer to is what is the source of the legitimacy of the cultural right from the perspective of the jurists of the Islamic denominations and on what basis can it be justified. Moreover, what is the difference between the viewpoints of Islamic denominations in drawing and explaining examples of cultural rights such as the right to education and the right to freedom of religion and belief? Therefore, the purpose of this article is to explain the attitude of Islamic denominations to the issue of cultural rights and its most important examples, namely the right to education and the right to freedom of religion and belief. One of the most important results obtained is that the right to culture has led to the spiritual and spiritual advancement of man, and the jurists of Islamic denominations have deduced specific rules for the examples of this right, including that from the perspective of the jurists of Islamic denominations. The basic principle regarding the freedom of religion and belief is the impermissibility of reluctance unless the reluctance is legitimate, such as the reluctance of an apostate to return to Islam. The current research is of descriptive-analytical type and is done by library method.

Air particles are the most common way of spreading contagious diseases among people. Therefore, the most important way to prevent the spread of a contagious disease generally is to keep a safe distance between each other. Determining the exact measurements of this distance is based on the type of virus, which, if it is too dangerous, is necessary to maintain a distance of one meter at least. Covid-19 (derived from the coronavirus), is the most fatal example of a contagious disease in recent decades, and medical experts all around the world have agreed on maintaining a social distance of about one to two meters in order to prevent the spread of this disease. In the present study, we first explain the validity of the criterion for the connection of rows from the perspective of Islamic denominations. Then we analyze and revise the resulting conflicts from the connection criteria of the majority of contemporary Imamiyyah jurists and the recommended social distancing, and then work on the possibility of resolving this conflict through the mores judgment in connection of the rows and we refer to the Mysore Rule. The research method of this article is descriptive-analytical and reviewing the library resources.

In a general classification, contracts are divided into two categories: Titled contracts and untitled contracts. Titled contracts are contracts that the human society has named with the purpose of a special function and for which special rules and effects have been established, such as sale and lease, each of which has its own function. Sale with the purpose of buying and selling and lease with the purpose of acquiring benefits, that were invented and named by intellectuals. This unique function of each of the titled contracts is changed due to various factors such as a condition included in the contract, time and common elements, and as a result, the titled function of the contract is removed from the function taken into account in the contract itself. This interaction in the function of contracts due to the aforementioned factors has caused differences among Islamic jurists. The difference is very broad. Many Sunni jurists have raised this issue under the tension between subjective and objective Intent, and have believed in changing the title of the contract based on the originality of the subjective Intent. In contrast, for many Shiite jurists, changing the function of contracts is not contrary to the nature of the contract that has changed its content, and they consider the contract correct by referring to the sovereignty of the will. On the other hand, some contemporary jurists and jurisprudents have believed in the transformation and change of the type of contract but not with the analysis presented by Sunni jurists but with the analysis of common elements and common effects. Some jurists also objected to the reasons for these views and considered the contract invalid. The purpose of the current research, conducted using analytical and descriptive methods based on library resources, is to investigate these different aspects of the function of contracts. The theory of the validity of such contracts, whether it causes a change in the title of the contract or not, is more compatible with jurisprudential and legal logic, and in this way, by the flexibility of the contracts, the maximum benefit of the contracts is provided to secure the interests of the people.

Endowment rental is one of the most important activities related to the trustee in endowment administration. If the waqif has not specified a certain period for rent in the deed of waqf, the trustee must determine this period by considering the benefit of the waqf, the benefit of the waqf and the purpose of the waqf. Regarding the permissibility or impermissibility of long-term waqf rent, the denominations of jurisprudence have accepted various opinions, including the permissibility, impermissibility, and detail between the types of leased property; However, Imamiyyah jurisprudence has not dealt with this issue except in a few cases. What is implicitly taken from the expressions of the jurists is the acceptance of the validity of long-term rent; however, this type of lease is not compatible with the intention of the waqf, which is to benefit as much as possible from the waqf; Therefore, the expediency of the endowment does not give such permission to the trustee. In these cases, the powers of the waqf trustee should be reduced as much as possible and more powers should be created for the supervisory institutions. In addition, the waqifs should be encouraged to specify the duration of the endowment lease in the endowment letter. Based on jurisprudential rules and evidence, we have tried to prove this permission to create restrictions for the trustee.

Although the sanctity of usury is one of the essentials of religion in Islamic denominations, but the Shia jurists have excluded some cases from the sanctity of usury, including usury between father and son, usury between husband and wife, usury between Muslim and unbeliever. However, the Sunni jurists believe usury also flows in these cases. At the same time, some contemporary Sunni jurists, such as Sheikh Tantawi, put forward a new example under the title of permissible usury between the state and the nation and put forward a series of arguments and references to prove their theory. In this article, which has been done in a descriptive-analytical way, we intend to discuss and debate the issue of usury between the government and the nation, looking at their opinion, which is based on the halal nature of bank interest. What is obtained from the examination of the verses, narrations and jurisprudential texts is that: although there are few opinions based on jurisprudential inferences, that these interests are halal, but the majority of jurists (both Shia and Sunni) believe that: a bank under any title - Mudaraba interest in a fixed and predetermined form, or delay compensation or compensation for the decrease in the value of money, etc. - is not accepted except for the fee limit - even within a reasonable limit - and is subject to usury. Therefore, it seems that Sheikh Tantawi's point of view can be seriously disputed.

Deviating from the apparent meaning of the word and turning to other meanings other than the apparent meaning that the word gives possible meanings is called interpretation. Now the question is whether it is permissible to interpret the texts of the Qur'an and the Sunnah, and if so, what conditions are subject to its permissibility? It seems that despite the theoretical differences of Muslim scholars regarding the permissibility of interpreting Sharia texts, in practice, they all accepted it and interpreted the texts; although there are differences of opinion regarding the amount of use, the conditions of correctness and the reasons that can be cited in the interpretation. For the accuracy of the interpretation, in addition to the competence of the interpreter, the word must be able to be interpreted, the possible meaning of the author must be included in it, and there must be a reason for this interpretation. Since interpretation must be documented for a reason, jurists have disagreed on what matters can be documented as interpretation. Examining the views shows that they agree on the permissibility of interpretation based on the text, consensus and rational argument, but they differ on the permissibility of interpretation based on analogy, expediency, custom and other evidence. One of these controversial arguments is the purposes of Sharia, which refers to the goals that the Sharia had in mind when legislating Sharia rules. Even though most of the jurists of different denominations have not accepted the interpretation based on the purposes of the Sharia due to the fact that the mujtahid does not include the purposes of the Sharia, the ambiguity and differences in the purposes, and the opening of the gate of corrupt interpretations, the proponents of the theory of the purposes have accepted the permissibility of this under certain conditions. Examining the arguments of both sides leads us to the conclusion that if the Sharia intentions are correctly extracted and the conditions of correctness of interpretation are observed, the texts can be interpreted based on the Sharia intentions. Especially when this interpretation leads to preserving the essentials of Khums, i.e. soul, religion, intellect, generation and property. This interpretation can be done in the form of allocating and restricting texts, adolescent due to the expressions of command and prohibition and the like.

According to Article 422 of the Civil Code, if the product is defective and the defect remains from the time of the contract to the time of restitution, the customer has the right to choose one of three things: accepting the defective product, receiving the Solatium, or canceling the transaction. The issue is that if the defect of the defective product disappears before the customer is aware of the defect, does the right of the cucumber remain or not? Is the presence of defects sufficient only at the time of contract, or is the presence of defects and the customer's knowledge of it important at the time of contract? Using the descriptive-analytical method, this research has examined the various attitudes regarding the fall of the right of restitution and Solatium and the assumption of the deterioration of defects in transactions from jurisprudential and legal aspects and emphasizing the importance of legal balance and fairness in transactional relations as the basic principles emphasized. , has chosen an attitude based on the fact that in the event of a defect, the right of the annulment is also forfeited, with reasons based on maintaining and balancing the rights of the customer and the seller, prohibiting the violation of the rights of the parties to the transaction, fairness in contracts. Based on this, a legal provision has been presented to protect the rights of customers and sellers in the face of the assumption of deterioration. This regulation is provided in order to guarantee the rights of customers and sellers in transactions and to maintain balance and fairness in contracts, and it determines how to compensate customers' unfair losses and balance the rights of the parties to the transaction in conditions of deterioration.

The husband has discretion in deciding to break the marriage contract, which means that he can divorce his wife whenever he wants, without having to give reasons and excuses to justify his decision. Belief in the absolute right of a man to divorce is one of the few opinions that have not been seriously opposed in the field of jurisprudence. In the jurisprudence of the Imamiyyah, while emphasizing the absolute right of the couple in divorce, efforts have been made to avoid divorces without reasons only as a moral and non-binding order. On the contrary, in the jurisprudential discourse of Sunni, the need for a binding and limited definition of the right to divorce and strictness in its application has been emphasized by presenting several reasons. In spite of this, their jurisprudential opinions are as a result close to the jurisprudential opinions of the Imamiyyah and in practice they have not been able to adhere to the important point that a husband is obliged to justify his request in order to file a divorce case. This research has studied jurisprudential writings about the principle of the right to divorce in Imamiyyah and Sunni jurisprudential sources, so that through their analysis, the selected hypothesis can be strengthened. According to the findings of this research, the right of a husband to divorce depends on the existence and proof of a valid excuse that has made it difficult for him to live together. Therefore, a husband cannot divorce his wife for no reason, unless he can get her consent in the divorce and thus correct his divorce claim.

One of the crimes that occurs in society is adultery, for which Sharia has established a punishment for the perpetrators. However, there is a difference of opinion regarding the implementation of punishment for people with bisexual or transgender disorders, and a comprehensive study in this regard has not been conducted among Islamic denominations. The purpose of this research is to explain the jurisprudence of the crime of adultery of bisexual and transgender people in Imami and Shafi'i jurisprudence by referring to the books of these two denominations to answer the following questions: If a crime is committed by bisexual people, will they be punished? If the crime of adultery is not proven for such people, how much will be the punishment for them? Regarding transgender people who have a desire to be of the opposite sex, in the event of the crime of adultery, will they be subject to the Sharia limit or not? In the case of transsexual individuals who lean towards being of the opposite sex, if the crime of adultery occurs, will they be subject to religious punishment or not? Therefore, this research, utilizing library and electronic resources, has examined descriptively, analytically, and critically the jurisprudential foundations of the Imami and Shafi'i denominations. The Imami and Shafi'i jurists believe that in the case of indeterminate gender (those individuals with a gender that cannot be determined), due to the doubt about the existence of primary or accessory organs, according to the principle of "doubtfulness", the punishment is dropped, but they are subject to punishment for committing a forbidden act. However, in the case of determinate gender (i.e., individuals with gender that is predominantly male or female), they are assigned to one of the groups of women or men (based on the majority). Therefore, adultery and consequently, sexual crimes such as homosexual intercourse and incest are realized, and the religious punishment, and not leniency, must be applied to them. The jurists also believe that transsexuals are not relieved of criminal responsibility due to their condition. Therefore, if they commit the crime of adultery, they deserve the religious punishment.

The rule to defend the life, property and honor of a person who has been endangered by its owner (a person who causes damage to his property or attacks his honor or committed suicide or self-mutilation) in Shia and Sunni jurisprudence has not been clearly defined and no explicit ruling can be found for it in Sharia and law. However, since the importance of this issue is at a very high level, the verses and traditions passed down from the innocents have been examined and the result of this analysis has been written down as follows. It is obligatory upon anyone who becomes aware of a violation of his or her triple ammunition and has the ability to defend himself and does not threaten the defending person or a third party. Because life, wealth, and honor are among the issues that the holy Sharia has paid great attention to and respected. Secondly the generalities and applications of the relevant evidences (from the verses and hadiths) are included, and also by examining the opinions of Sunni jurists in various books, the evidences and opinions regarding the defense of the self, honor and property are examined and separated by the sayings of the religions. Shafi'i, Hanafi, Maliki and Hanbali have been examined and analyzed in detail, and in summary, most of the Sunni jurists believe in the obligation of defense and have pointed to evidence from verses, hadiths, and authentic documents for their statements. The present article, in a descriptive-analytical way, by examining the evidences of legitimate defense, tries to infer whether, according to jurisprudence and legal texts, the evidences of legitimate defense include the case of a person who has taken action against his life, property, and honor or not.

Apostasy has special ruling in Islamic jurisprudence such as: marriage rescission. In this case a very important question appears. Does the couple apostasy cause wife's dowry cancellation? Alternatively, it does not affect it. The result of research shows that there is a disagreement in Islamic jurisprudence about it. Shafi'i, Hanbali and Hanafi jurists agree on that the wife deserves the dowry completely if apostasy happens from the husband after intercourse. But based on the assumption of the wife's apostasy before intercourse, her dowry is completely cancelled. Also based on the assumption of the husband's apostasy before intercourse, the dowry is divided into half. The idea attributed to the Maliki jurisprudence is that is apostasy happens after intercourse, paying the dowry is mandatory for the husband and if it happens before intercourse if we consider apostasy as divorce the dowry is divided into half but if we consider it as rescission the dowry is cancelled. Imami jurists also believe that if the husband or wife apostatize after intercourse, he has to pay the dowry completely but if the wife apostatizes before intercourse, the dowry is completely cancelled. They have a disagreement about the husband's apostasy before intercourse. Evaluating the reasons for proving commitment to pay the whole dowry with the assumption of the husband or wife's apostasy after intercourse and husband's apostasy before intercourse and dowry cancellation with the assumption of wife's apostasy before intercourse. Looks more reasonable to pay the whole dowry in this case.

The issue of the effect of simultaneous death and dismissal on the judge in judicial representation and the execution of the issued judgments is one of the topics that has not been determined in the law and no specific procedure has been found in this matter. On the other hand, the said issue is discussed in jurisprudence, and because of that, there is no room for ijtihad or current practice. Therefore, by prescribing the principle of 167 Q.A. and Article 3 of Q.A.D.M. The descriptions mentioned for it have been analyzed and answered in Imamiyyah and Sunni jurisprudence with a comparative approach. In Imamiyyah, the death and dismissal of the judge of the scribe before reaching receiver, assuming the intention of the book, considers the receiver to be taken from it. However, the transgression of the scriber before reaching the written form is a sign that the transgression is connected to the written form, and therefore it is not permissible to act on it, while changing the state of the written form is not considered effective in the judicial representation and execution of judgments. Two types of theories have been presented in Sunni. In Hanafi jurisprudence, before receiving the book from the scriber, not only the transgression, but also the death and dismissal of the scriber and the receiver, even if it has left the scriber's hand, are considered the cause of its invalidity. In Maliki's jurisprudence, although they do not consider it to be a wide range of subjects and consider it to include all subjects, including the rights of God and the rights of people, any loss of the conditions of a judge or his death and dismissal, whether as a scriber or a receiver, is considered a cause of invalidity of the judge's scribe. Therefore, in Maliki jurisprudence, the reputation is in the lack of difference in the loss of conditions regarding the scriber or the receiver. In the famous Shafi'i jurisprudence, they consider the lack of effect of death, removal, and corruption of the scribe or scribe and consider more validity for the judge's scribe and its imposed appearance. According to Hanbali, the death and dismissal of the scriber and the receiver after leaving the scribe's place, is considered to be the place of execution and enforcement.