نشریه فقه و مبانی حقوق اسلامی
سال پنجاهم شماره 2 (پاییز و زمستان 1396)

Executive function of council is one of the issues which has been raised related to this institution. Subjects such as the responsibility of council members for the executive affairs have made some people doubt about identifying the aforementioned function in council institutions. Therefore, the question arises as to whether we can recognize this function for the Council institution or not? Using the legal and jurisprudence sources and rules in this field, this study investigates the councils’ executive function and stating the issues brought up in that field, employing descriptive-analytic approach.
The result of the study was as follows: in jurisprudence sources, some executive functions for the council such as council competence of the selection of Muslim ruler, has been established and provided. Similarly, in the legal system of Islamic Republic of Iran, this function has been established in many cases such as former Supreme judicial council, local council, and administrative councils in accordance with constitution and regulations. Dealing with this issue, the guardian council has also viewed it with caution. But what is indisputable, is the council’s competence in this field.

According to the widely-Known viewpoint of Imamiyya jurisprudents, the specific performance is prior to the termination of contract, and if the enforcement of the obligor to perform his obligation is not possible due to the necessity of expertise in doing so, the obligee can terminate the contract. Also Iran’s Civil Code has followed this doctrine in Art. 237-239 and 476. The present article, based on the historical, economic and philosophical analysis of Islamic Law, examines and proves that the enforced obligor to specific performance and its primacy to the termination of contract in Imamiyya jurisprudence does not have the necessary efficiency and there is no acceptable legal-jurisprudence justification and it is based on the economic and philosophical interest of jurisprudents, so that clear ruling of traditions. As the finding of the present article, it is proposed to the legislator in the discussion of breach of contractual obligation to anticipate a set of remedy that all of them can be applied across the board. In the event of a breach of obligation, the obligee can choose a remedy that prepares favorably his benefit. Thus the costs and expenses of such a breach haven’t been transferred to society and the consequences of this breach have been managed within the contract by the two parties.

In muḥāriba, the intimidation and disruption of public security in many cases are triggered by the use of weapons; however, much of the intimidation, harassment, threats and disruption of public security, such as throwing acid or other chemicals at people take place without weapons. Taking new steps, the authors of this study undertook to investigate those sorts of threats made with no weapons. After critiquing and examining all comments and evidences quoted by jurists in this respect, the authors made the conclusion that there is no need to consider weapons as a basis to muḥāriba crime, namely, the cases that fall under this term do not essentially require involvement in armed criminal activities, those kinds of involvements including intimidation and disruption of public security taking place in cyberspace or through internet can also be considered as a muḥāriba crime as per to the appropriateness of the sentences imposed and the theme featured by narratoins about muḥāriba in this respect.

This article studies the validity of providing for the lessee’s guarantee as to the substance of lease and proves that such a provision is not contrary to the requirements of lease; since unlike deposit, the nature of this contract is not entrustment (istīmān). The inconsistency of this provision with the Holy Qur’an and tradition is worth studying both from the viewpoint of its inconsistency with specific proofs of lease as well as lack of its causality for guarantee. The absoluteness of the lessee not being guarantor includes the case of provision and non-provision of such a condition in the contract. In case of doubt, the application of istiṣḥāb principle (presumption of continuity) results in nonexistence of guarantee. Also, one of the rules of lease is the requirement of making the substance of lease available for the lessee to exploit the profits and enjoy them and the requirement of lessee’s dominance as to the substance is proved from the Imamiyya jurisprudence viewpoint. Therefore, the condition may not deprive the owner from a proprietary right derived from contract which is based on Sharia. Such a proprietary right is considered to be an order i.e. a Sharia enactment against which the parties may not agree. Therefore, the provision of lessee’s guarantee as to the substance of lease is contrary to the Qur’an and tradition. Also, in interpreting article 493 of the Iranian Civil Code, in which merely excessive use or negligence are causes of guarantee and the guarantee provision has not been dealt with, one may use this viewpoint justifiably and treat such a condition as void. The method of this article is descriptive-analytic of ijtihādī (discretionary) type.

The Islamic legal rules are divided into two parts: “documentary to text (manṣūṣ)” and “adoption of texts (iṣṭiyādī)”. In the latter group there is no Qur’anic or narrative text that embraces all the provisions of the rule. Instead, jurisprudents have extracted them from a collection of verses and narratives, which they, as a whole, prove the provisions of the rule. The present study is aimed at investigating the compatibility of the Roman principle of good faith with Imamiyya jurisprudence and the feasibility of the extraction of good faith rule in Imamiyya jurisprudence. Some scholars, referring to some samples of the principle of good faith in the jurisprudence, especially in contracts, believe that this principle exists in jurisprudence. In this study, we critique this view and conclude that extraction of the principle as a general rule from the texts is not possible.

Situational crime prevention is a series of measures used by the state and civil society to prevent crime through reducing criminal opportunities and hardening targets. Since it is always possible that these technical and complex measures or instruments get abused by the state or citizens and due to the possibility of disordering at due process of the use of power, it is necessary to determine the conditions and rules for exercising such measures and for the resulting responsibilities. However, the unclear and incomprehensive approach of the legislature toward the legal nature of these preventive measures and their using conditions, have provided the opportunities for abusing and caused disagreements among lawyers and scholars. Some believe that these kinds of measures are self-defense and are subject to its conditions and rules. But some others regard them as some kinds of absolute and exclusive ownership rights. This article, relying on the jurisprudential and legal bases of the right of using these preventive measures and drawing on judicial precedents, doctrines, and different rules, investigates the nature and conditions of these measures and responsibility arising from using these kinds of measures.

Relativity of jurisprudential understanding of the Qur’an and tradition is what forms their external meanings. Many of the discourses on the principles of jurisprudence are organized to understand this layer of text and scholars of this field have numerous disagreements and finally they have differed in understanding the external meanings. These differences do not lead to absolute relativism of religious understanding of the Qur’an and traditions and despite some claims they do not cause the human understanding of religion by jurists. In judgment of this realm lots of inaccuracies have taken place. In this paper after studying the different meanings of relativity and presenting reasons for moderate relativity of understanding of religious binding text, the absolute relativity has been refuted and some confusion in this field has been pointed out. In order to prove minor relativity of understanding external meanings, mostly the reasons of disagreement among jurists in understanding the appearance of the Qur’an and traditions has been dealt with.

The actual canonical commands divide into initial and secondary commands. The secondary ones concern issues that involve conditions such as urgency, exigency, necessity etc. i.e. the command is legislated concerning this secondary conditions. The necessity is one of these secondary conditions in which the obliged cannot obey the actual initial command because of his necessity and so the lawgiver legislate the actual secondary command for him. Some jurists consider necessity and urgency as synonymous and some others consider it more general than urgency. In this article we explain that the relationship between necessity and urgency is absolute generality and peculiarity and the criterion that the necessity causes the change of a command. This issue is important because of applicability; but in jurist’s books it is expressed just in the form of jurisprudence issues and as to where necessity causes change of commands, the jurists have touched upon it briefly in the book of marriage in the discourse related to viewing.

Despite the special status of legal rules in implementation of Islamic jurisprudence, there are still rules that have not been extracted yet, or have not been known as a judicial principle among jurists, one of which is the rule “No obedience of a creature is permissible as long as the Creator is being disobeyed”. Based on this rule, obeying people is unlawful when it leads to God’s disobedience and obedience to God cannot be achieved by unlawful act. Considering the importance of the issue on the one hand and the lack of prevalence of the so-called “rule” for it on the other, it requires proper research to affirm and consolidate the rule. In this study, which was conducted through a descriptive-analytical method and a massive search among narrations and fatwas of the great jurists, in addition to the investigating and explaining of different takes on this narration, “No obedience of a creature is permissible as long as the Creator is being disobeyed” and adaptation of its various legal referents in the words of the jurisprudents, it has been proved as a rule.

The tourism industry, one of the most important industries of the world, has had a rapid growth in the world’s economic development. Among various issues and factors damaging to the tourism industry, obligation for ḥijāb is what some people have considered as creating discontent and reduction of the number of tourists and have even called it an act against human rights. This research attempts to study the jurisprudential obligation of the Islamic state concerning the ḥijāb of the tourists as per legal-judicial evidences. After the study was conducted, it was found out that the evidences of enjoining right and forbidding wrong, the arguments concerning the absence of concomitance between prohibition and absence of the ḥijāb as well as the impact of the circumstances at the time and place of pretending the forbidden can be considered as the jurisprudential requirements obligatory upon non-Muslims, either residents or tourists and representing the Islamic state’s responsibility. In addition, the ruling derived from the law of any country obliges the tourists to act accordingly and in case of failing to do so, they have broken their oath and in case of entering the country the state is entitled to oblige them to abide by it.

The way adhan and iqama were legitimized is among major matters of disputes between Shi’ites and Sunnis. Considering the well-known Sunni perspective that adhan and iqama were legitimized through dream of a certain ‘Abd Allah b. Zayd in an unrevealed way, a question raises whether legitimization of divine precepts through intermediation of ordinary people is acceptable.
Discussing how adhan and iqama were legitimized from the Sunnis perspective and evaluating the proofs argued in this connection, the present essay comes to the conclusion that believing in an unrevealed cause for their legitimization is in opposition to both intellectual and narrative proofs. In addition to suffering inauthentic chains of transmission, the proofs argued for that claim are in explicit contradiction to one another.

As petroleum was discovered in our country, during its lifetime, several legal and political issues arose in this regard. One of these issues is the ownership situation of the petroleum and gas mines. Jurisprudential texts and six major theories regarding mines are dealt with in this study, and considering the strong reasons and proofs we support the anfāl (spoils of war) theory, and it is hereby decided that mines are absolutely in Imam (Ruler)’s possession. Then, administration and ownership manner are discussed within the logical course of the analysis. In this regard, two views are debated: priority in occupying, and credit possession. Finally, legal texts, specifically art. 45 of the constitution as the main sources are interpreted on the basis of the Islamic and logical principles. As a conclusion it has to be mentioned that anfāl theory is established in the legal texts as well as jurisprudential texts, and has to take into account the legal texts on the basis of the jurisprudential reasons.