فصلنامه پژوهش های فقه و حقوق اسلامی
سال چهاردهم شماره 1 (پیاپی 50، زمستان 1396)

The Shiite jurisprudence, due to its comprehensiveness, is one of the richest and most important sources which can be applied in studying the etiquettes and moralities involved in business. The jurists have mentioned various teachings in form of religious precepts including obligatory, unlawful, recommended and disliked rules in the legal works devoted to business and trading in Islam. Such legal teachings can create certain principles and bases known as professional ethics used in the fields of economics, business and industries. Furthermore, such principles have been reflected in some professional texts, particularly in some chivalry-manifestos presented by certain business. This essay, as a legal research, seeks to indicate the degree of Shiite jurisprudential influence on the emergence of specific principles of professional ethics in different business using a library base and descriptive method and by comparing the legal texts on the one hand and the professional texts on the other. The main question which this essay tries to answer is to know what principles can be inferred from analyzing and comparing the Shiite jurisprudential teachings and the professional texts written in this regard. Based on the findings of this article, the following principles can be extracted from the above mentioned analysis: the obligation of providing livelihood, and giving reverence to business, the necessity of gaining knowledge for business, the necessity of pursuing the example of religious role models in different businesses, the requirement of attending to ethics and spirituality in work, the obligation of adding prayer and devotion in all works. The blessing in work and business can take place in the light of proper businesses which can be achieved through legal analysis and by supervising the jobs as one of the principles of professional ethics in business.

Unit notice, as one possible reason, has been considered from two main aspects in the language of principles. One is the proof of its validity, and the other is the determination of its domain which acceptance of validity is supposed to be more important. Referring to the arguments of the Arbaa reasons as well as the methods of wise men, the scholars of the principles have argued against the theory that does not fully consider the unit notice as valid and as the trigger of notice and practice. Meanwhile, some have fully understood the implication of the verses on this issue and faced the challenges of method of wise men with the drawback of retribution by the lawyer. On the other hand, some have considered the method of the wise men as the only reason for the validity of the unit notice, and by attaching related narratives as validity from the lawyer have tried to prove the authority of unit notice. Some others, while accepting the implications of the verse of Al-Naba Surah, have considered the method of wise men as one of the reasons for the authority of the unit notice. In this paper, we will examine the integrity of the rationale for the validity of the unit notice through examining the principles and searching for the status of the wise men in proving the authority of the unit notice.

Necessity is the one of the circumstances that causes one person to avoide an existence or near risk enter to damage on the other person. For realization, the necessity must exist in some conditions and with existing these conditions, at the time of enforcing of waver of article 55 of the former Islamic penalty code, there will be different opinions among the lawyers. With elimination that waver in new penalty code, the question is that whether necessity is one of factors that raises the civil liability or not? In this article, the author consider the concept, conditions, effects and cases of necessity in civil liability.

The credibility of women’s testimony in Islamic jurisprudence has been controversial. Although it is not a new subject and it has been proposed for a long time but this cannot avoid us not to address the new comments on this issue and not to consider different attitudes toward it in order to understand legislator’s opinion better. Two approaches can be proposed in this field. First, gender-based approach which treats a woman’s testimony as half of a man’s based on rational and narrative reasons. On the other hand, the second approach, in the historical context, attempts to adjust the attitudes which can be the cause of misunderstandings, through reinterpretation of situations in traditional approach and the analysis of citation reasons and provide the possibility to bypass the traditional approach based on time and space requirements and juridical-legal modernity in order to pave the way for a modern approach towards women’s testimony. The latter approach through accreditation to women’s testimony, assumes women’s testimony as a small issue in dynamism of Islamic jurisprudence, so that it can keep pace with time and space changes.

The Patent Right is a rational validity that is established between a person and an object or a place. There are some arguments and disagreements about the nature of the patent right‒is the financial right considered a kind of possession, kingdom, or priority? Also, there are some disagreements about proving such right and to prove this matter, some reasons such as consensus, narration, associating with someone, and the practice of the wise are cited. Some of the issues about which the Patent Right is considered are as follows: the Patent Right in unclean entities, the decline of entity from taxes and possession and the Patent Right towards entity after compensating the damage (giving substitution), the spiritual ownership, and the priority right. The provision of the realization of the Patent Right is its benefit and the existence of exploitation. The disturbance or seizure of the Patent Right without the permission of its owner is unlawful. Also, the exchange and ownership of the Patent Right freely through gift, will, or devotion is correct. Due to its kind, the end of the Patent Right is different.

In Imamieh jurisprudence, the purpose of the rules of civil liability is to compensate for losses and for this reason the liability assessment criterion (wrongdoer) is based on the losses incurred to the loser. While there is a different responsibility from civil liability that its purpose is to prevent the defendant of unjust enrichment rather than to compensate the plaintiff for loss suffered. The existence of numerous examples of this feature has led to the development of a new theory of "restitutionary liability " against civil liability in the legal system. The question now is that the basis of this theory with the purpose and the criteria, for which it was said, is capable of designing and defending in the Imam's jurisprudence? If the answer is yes which principles and rules of jurisprudence can entail the theorem? The author believes that the basics and examples of this theory are in the form of rules such as prohibition of eating another property and if it's true binding corrupt it is binding and in some topics liability, such as, risk and confiscation. Because the primary purpose of these rules is preventing of unjust enrichment and the result of using it is primarily the return of the property or its owner. This goal is more consistent with the characteristics of restitutionary liability (which is gain based), not with the indicators of civil liability that is damage based.

The subsidiary religious laws, in the sacred Islamic law, are extracted and inferred using the book (Quran), tradition, consensus (among Fokaha) and wisdom. However, it is very general in nature and no more specific details had been set from the beginning. The great mujtahids and scholars of Fiqh embarked upon the problem in order to solve it. Accordingly, Istishab is considered as one of the oft-used principles in this respect. It is where a situation existing previously is presumed to be continuing at present, although there is some doubt, it presumes the continuation of the fact until the contrary is proven. For example: we know that someone was certainly alive in 1971, and was missed in 1991 when his father died. Doubt arises as to whether a man is still alive and can inherit his father's wealth? The previous certainty, in this case, is presumed to be continuing at present that he is known to have been alive. In case of doubt, on the contrary, it is assumed that he is deceased. However, by istishab, the presumption will be that the death is not proven. Because the principle of Istishab, has a privileged position in civil law and Imamieh jurisprudence. The purpose of this study was to analyze the role of Istishab in civil law and Imamieh jurisprudence.

Quint is divided into six portions to be spent on expenditure for God, the prophet, Imam (AS), orphans, the poor and wayfarers from Hashemian the believers according to all FOKAHA. Two parts of this famous Fatwa have been reviewed and evaluated in accordance with jurisprudence in this paper. The main result of the theory of this paper is that they are Imam and Islamic governor who are the main owners of quint and the others including orphans, the poor and wayfarers from Hashemian are consumers (those to whom quint is paid) not the owners of quint. Furthermore, being SADAT is not a necessity to being paid. In other words, there is no necessity and no compulsory for these three groups to be Sadat so as to be entitled to receive quint.