Matin research journal
Year:2016 | Volume:18 | Issue:72 |Papers Count:7

Considering the hojjiat Qata’ essential is among the statements prevailing among the experts of principles of jurisprudence, some of whom consider it definite which is called the origin of hojjiat Qata’. Imam Khomeini is among few contemporary experts of principles of jurisprudence who initiated critical study of this issue. Attempts have been made in this paper to study and explain the concepts and process of emergence of this issue in principles of jurisprudence. Also the viewpoints of Imam Khomeini about this issue have been studied critically, shedding light on its strong and weak points. His contention of rejection of hojjiat zati qata’ has been proved and explained through a different argument. According to Imam Khomeini, hojjiat qata’ is not a contractual issue, rather it is rational verdict, which is relevant for the qatas, whose subject is mulavi decree. Also some of the different explanations given by Imam Khomeini have been questioned and it has been demonstrated that differences of opinion about the origin of hojjiat qata’ leave their impacts on the direction of other subjects.

Right to Refrainment from Implementation of Terms of a Contract in the right to refrain from performance of terms of a contract or the lien right is the right to avoid implementation of a contract terms until the other party implements its terms. It usually happens in exchange deals such as transaction and lease. It is not confined to transaction. Attempts have been made in this writing to define lien and its nature on the basis of this right in exchange deals from the viewpoint of lawyer and jurisprudents. Among these bases, what looks more legal it that after the conclusion of a contract and commitment of the two parties to submit the exchange subject to each other, one cannot set any preference for any of the parties to submit first, for the two rights are created simultaneously. Therefore, any of the parties can subject performance of his/her obligation to the discharge of obligation by the other party. Therefore, on the basis of Imam Khomeini’s viewpoint, one may conclude that the most important basis of this right is the foundation and practice of the rational people.

One function of the family institute is reproduction and since survival of mankind is subject to this function, it is important because it also strengthens the family. However, some families due to various disorders, are not able to naturally perform this function of reproduction and childbearing. The progress in reproduction technology over the past few years has helped many to bear children and in some cases has raised hopes for others to bear children in the future. Artificial or rented womb is one of the new methods of fertility. This issue can be studied from two aspects: 1- It is allowed from legal and jurisprudential point of view to use this method? 2-What are the legal implications of this method such as prohibition of marriage, child custody, etc.? The present paper is an attempt to study the latter aspects.

Payment in the form of Contract of Reward and Secondary Contract of Reward is among the most prevalent methods in banking system. Given the nature of contract of reward and secondary contract of reward in the civil code and in Imamiya jurisprudence, the question that is raised is: How far is the nature of contract of reward capable of utilization in the banking system? In fact, according to general rules governing the contracts, one of the conditions for correctness of a deal is that the exchanged items of a contract must be clear and definite. In the contract of reward, brief knowledge of the exchanged items is enough. Even the reward can be set based on sharing of the gained benefit. In this regard, one can conclude from Imam Khomeini’s Tahrir ul-Wasilah that the contract of reward can have the results of Limited Partnership (Muzaribah) while lacking its limitations. On the other hand, lack of duration of the contract does not harm the conditions of correctness of the reward of contract. The contract of reward is correct in any permissible and rational act. Therefore, it is applicable in industrial, commercial, agricultural and services sectors. This is why it has found a special place in usury-free banking system. However, the contract of reward mentioned in the Executive Instruction of the Usury-free Banking Law has some problems. The present article is an attempt to identify and analyze these problems.

Individual inference (ijtihad) is a faculty through which the jurisprudential authority (mojtahid) attains understanding of the sharia decrees. In this process the jurisprudent cannot consider himself in isolation of his society, for in such a case, the outcome of his efforts will be nothing but some rigid decrees devoid of any scholarly and practical logic. Hence, a jurisprudent, in inferring decrees or revising his own viewpoints that may lead to alteration of his previous decrees, must inevitably take the requirements and needs of the society as well as the requirements of time and space around him into consideration. This consideration can lead to a rational decree and consequently can win practical commitment of the faithful. This issue not only is not in contradiction with the eternality of Islamic commandments but also is totally different from blind following of Sharia of the society.

Seyed Mostafa Khomeini was an able jurisprudent whose main characteristics were: critical study of the inferential viewpoints of other jurisprudents, precision, and raising issues and providing scholarly answers to them. One of his works, Kitab ul-Bai’ (Book of Transactions), is unique regarding the style and method of critical study of inferential decrees. Through his intellectual freedom, the Mostafa Khomeini studied Imam Khomeini’s viewpoints and either acknowledged or rejected them. Understanding the concept of transaction through its effects, giving originality to mu’atat in contracts, lack of application of the verse bai’ to the issue of mu’atat, reference to the tradition of saltanat regarding correctness of mu’atat, lack of domination of the rule of “No Duress” over rational verdicts and the selection of the highest price until the day of termination regarding guarantee and determination of the condition of wasted property are among his exclusive innovations regarding transaction. The present paper is an attempt to comparatively study the viewpoints of other jurisprudents, particularly Imam Khomeini, and also to study them critically from the viewpoint of Seyed Mostafa Khomeini.

Evidently, the main important factor for growth and development of any society is its human resources. Every society is composed of active men and women, who, in mutual social relations, leave a direct impact on its economy and development. Hence, the development strategy of every society should be based on the maximum possible level of participation of women (who constitute half of the society) in economic, political and social fields. Therefore, heeding women’s employment and directing them in the work market can prepare better grounds for the utilization of this potential workforce and activation of this stratum of the society. The factors that can prepare the grounds for the maximum possible level of participation of this able population in economic-social affairs is of high priority. The data for this paper has been collected from library sources. The present paper, employing analytical-descriptive method, is an attempt to identify the effective factors and hurdles in the way of women’s employment as well as the role of this stratum in the development of the society as well the share of women in employed workforce. Also the status of women and their role in religious thought and the existing legal system is studied based on Imam Khomeini’s viewpoints about women’s social participation.