Islamic jurisprudence Resaerch
Year:2020 | Volume:16 | Issue:3|Papers Count:8

Ownership of real estates is not only limited to the surface of land but also it includes the space above and the space below the surface. There are two major attitudes towards the scope of the air right and downward right in Islamic Jurisprudence and positive law. According to the first theory, the title of the owner of the soil extends not only downward to the center of earth, but also upward usque ad coelom. However, the second view accepts the title of owner to a reasonable distance. Nowadays, the possession rights in the space above the surface and in the soil below is limited to a reasonable distance of the surface of land. The customary criteria for determining the extent of the title, is the power of the land owner in using of the air right and the soil right. The owner of the air and soil rights has the right of material and spiritual possession provided that he/she observes all public regulations.

According to the Articles 590 and 591 of the Islamic Penal Code, the diah for cutting the eyelids as a whole is a full diah, and in splitting and cutting in less than the whole, one third of the diah is fixed for two upper eyelids and half a full diah for two lower eyelids. Meanwhile, there is disagreement between the Imamiyyah jurisprudents; the majority of the jurisprudents believe in proving the full diah as a whole, but in cutting less than the total, some believe in proving a quarter of the diah in each of the eyelids. Some have issued fatwa confirming two-third of the diah in the two upper eyelids and one-third of the diah in the two lower eyelids. The source of the difference of opinion is the difference between inference from the narrations exposed to the verdict and the conclusion of the consensus. The findings of this study which have been made through a descriptive-analytical method, indicate that in total disconnection, the full diah is fixed and the problem raised against the consensus is rejected. Given that here is an evidence, the content of the evidence is the same as the conclusion of the consensus and there is no strong reason for the possible evidence. In addition, by underestimating the documents of other sayings in the crime diah to less than a total of four quadruplets, the verdict of onefourth of the diah on each of the stairs is reasonable.

Ibadiyya has been accused of inciting war and violence because of its affiliation to the Kharijites, so it has tried to avoid the accusation. Among the Ibadiyya scholars, there are two theories about the basis of the relationship with non-Muslims, one establishes the war as the basis of the relationship originally and the other establishes the peace and friendship as the basis of the relationship and considers the war permissible only for defense. Ibadiyya initially accepted the first view, but with its reconstruction, it turned to the second theory. The second view is accepted by contemporary theologians, who say that Islam is the religion of peace. The early Ibadiyya had a sharp, extremist and monopolistic view of Muslims who opposed their religion, especially Shi’ ites, but what is important is that contemporary Ibadiyya scholars disregard this view and consider non-Ibadiyya Muslims as Muslims, respecting their blood and property and their land is called the land of monotheism. Using a descriptive-analytical approach and a library method, this article discusses the changing of Ibadiyya's view from the first principle of war to the first principle of peace in Ibadiyya's approach to non-Muslims and anti-Muslims, especially Shi’ ites.

“ Waiver of right” relates only to those public rights that are demandable for enjoying the element of “ who has the right” and the legal reasons referred to for “ the rule of waiver of right” that are generally expressed with the phrase “ remission and forgiveness” are only applied to this waiver. Since the waiver of right relates to inshaiyyat (constructions) it belongs to the “ current rights” but not to the future rights (putative or predestined rights), otherwise it is not a true waiver and has no effect in waivering the right. romise and pledge are permissible only for stopping some acts or legal reasons that are considered to be “ hbar” but not “ nsha ” and their outmost effects-if lawful-are “ the prescriptive obligation” of injaz and ifa ̔ . Therefore, the rights of guardianship, fostering, divorce, revocation of divorce, possession of the rights or properties belonging to no particular person (mobahat) and like this cannot be waived.

Abstract One of the topics discussed in the field of interpretation is the use of tradition with a single transmitter in the commentary. Although Islamic scholars agree on the authority of the Sunnah and its lofty position, they have different views on the scope of its application for interpretation. Obviously, narrations with various chains of transmitter are agreed upon by the scholars, but the matter is the narrations with a single transmitter. It is important to examine the status and the authority of the narrations with a single transmitter in the commentary in that it can be determined whether one can refer to the meaning understood from the verse based on a transmitter with a single transmitter. There are different opinions among the scholars. Some scholars have considered the lack of authority of a narration with a single transmitter about non-legal rules and have restricted the narrations with a single transmitter to legal issues. In contrast, some scholars do not accept this view and voted to the authority of the narrations with a single transmitter about non-legal rules like interpretation and so on. One of the adherents of the authority of the narration with a single transmitter in the area of commentary is the great scholar Ayatullah Khoei, whose arguments and words are expressed. This article uses a descriptive-analytical method and after analyzing the view of Ayatullah Khoei it discusses the view of the research.

According to some jurisprudents the children's will is not correct. Civil law has also accepted their viewpoints. The present study is performed with a descriptive-analytical method and aims to prove the accuracy of child’ s will and to determine the related conditions in order to show the significance of child’ s rights in slamic jurisprudence perspective as well as the significance of Islamic lifestyle. It is understood from the present research that the emphasis of some Islamic jurisprudents on the difference between the child’ s will and the other contracts, as well as the contrast between the view of this group and the view of western lawyers, who proposed the difference between the child’ s will and the other contracts, indicate the leading role of Islamic jurisprudence in this kind of attention to children's rights. The emphasis of those who believe in the accuracy of children’ s will and those who claim that these wills should be made for good deeds and for helping and caring for the relatives encourages the children to love and to sympathize with others, especially relatives. Regardless of the need to respect the child’ s will, the ranian Civil Code does not validate the will of the children. Since the Civil Law is generally based on the famous fatwas, it should accept the children’ s will and respect their animus while considering the rights of the inheritors.

According to the Islamic criminal law, it is necessary for the perpetrator to be an offender and to have criminal liability in the presence of conditions and elements including the condition stipulated in the Article 140 of the Islamic Penal Code, approved in 1392. Based on this Article, the perpetrator should be wise and mature. What is important in this regard is the question as to what is the ruling if we doubt whether a person is wise or mature during a crime? Some of the jurisprudents, knowing that the rule of Dar ̕ is applicable to the Qisas, hold that there should be no retaliation, and some others hold that the rule of Dar ̕ is specific to the crimes with prescribed punishments (Had). They have set the principle of istishab as the criterion of action, however they have also different ruling by reasoning to the principle of istishab. The authors have used a descriptive-analytical method in the present research. Not generalizing the principle of Dar ̕ to Qisas, they took an approach to the viewpoint of Imam Khomeini and relying on the principle of istishab, in the case of doubt in the criminal maturity they absolutely believe in the precedence of the word of the criminal. And in the case of doubt in the criminal madness, if his/her insanity is evident from the very beginning of his birth, they absolutely believe in the precedence of the word of the criminal, but in the case when his/her insanity is accidental and only the date of the murder turns out to be promising, the word of his/her guardian is precedent and in other cases the word of the criminal is precedent. If the criminal does not have a history of insanity, the word of his/her guardian is precedent.

Man may face the insulting of another person and lose his composure. In the meanwhile, he has a sense of revenge and a tendency to retaliate against him. The present study discusses the jurisprudential ruling of retaliation in insulting in an ijtihad approach. What has increased the importance of the issue is the scope, the multiplicity of cases, and the explanation of its effects and judicial functions. Despite the importance and the scope of the issue, no independent chapter or title has been found in jurisprudential books; only a few jurisprudents have made a brief reference to it under the title of “ Sabb” . Some scholars, such as Mohaqqiq Ardabili and Mohaqqiq Khoei, after excluding some cases, allowed similar action against insulting person. In contrast, the famous jurisprudents, since they have not excluded the ruling of retaliation in insulting from the ruling of insulting and blasphemy based on itlaq maqami it can be said that they believe in impermissibility. After examining the arguments of both sides, the famous opinion was accepted. A coherent and comprehensive view of the issue, as well as citations to the evidence that has not been considered so far can be considered as the results of the present study.