فصلنامه فقه و اصول
پیاپی 87 (پاییز و زمستان 1390)

One of the most functional reasons in the methodology of Islamic principles and jurisprudence as well as law is istiṣḥāb (presumption of continuity). Istiṣḥāb is judgment on the continuity of what has existed in the past. Most of the legal theoreticians, after Waḥīd Bihbahānī, believe that istiṣḥāb is a practical principle; however, further research into the evidences for the validity of istiṣḥāb indicate the verity of the theory of istiṣḥāb as being amāra (indication leading to speculative evidence). Intellect, the attitude of the intellectuals, and traditions all denote the inclusion of the initiality (kāshifiyyat) aspect in the validity of istiṣḥāb. Lack of devotional tendencies in the methods of the intellectuals, the istiṣḥāb as being amāra in the viewpoints of the jurists preceding Waḥīd Bihbahānī, and the necessity of realistic viewpoints in jurisprudence, all confirm this theory. The validity of legal outcomes resulting from the intellectual and normal requirements of mustaṣḥab (i.e. the object of istiṣḥāb) as well as the advisability of substituting istiṣḥāb with knowledge is among the most important outcomes of (the theory of) istiṣḥāb as being amāra.

To prevent the consequences of inexperience and prevalence of fervor resulting from emotions and sentiments in a young girl who is unfamiliar with marital affairs, the legislator has deemed as necessary the permission [for marriage] by the girl’s father as the most compassionate person in recognition of her interests. However, this is a controversial issue in jurisprudence. The father and paternal grandfather have no authority over the marriage of the grown-up female who is divorced or non-virgin (thayyiba); but there are some views in case she is a grown-up virgin.All the jurists who regard the guardian (walī)’s permission in marriage of the virgin girl as valid go on to say that the guardian’s permission is valid only if the guardian does not refrain from giving permission without an excused reason. However, if the guardian refuses to give permission despite the existence of a competent suitor and the girl’s willingness, in that case the validity of his permission is voided. Nevertheless, if the guardian prohibits the girl from getting married to someone incompatible or equal to her (in marriage), this prohibition is called ‘aḍl. In this paper, following the conceptology of the terms and through a comparative study of the Imāmī and Sunni schools, we will examine the term ‘aḍl as the most important instance of the lapse of authority (wilāya) of the guardian in the marriage of a grown-up virgin. In conclusion, we will critically review the viewpoint of the Iranian law in this respect.

Throughout history, family institution has undergone various vicissitudes and confronted numerous anomalies and difficulties, especially in educational and moral dimensions. The pinnacle of moral and educational unruliness in this institution is traced back to the pre-Islamic era (pagan period). Nevertheless, in contemporary era, this sacred institution has undergone shocking alterations, which is traceable in morality realm. This article addresses the moral dimension of family rights and responsibilities in Islam. In this respect, the Islamic viewpoint concerning immoral patterns of marriage and family in pre-Islamic and contemporary eras is explicated and the rights and duties governing the Islamic family are introduced with an emphasis on ethical purposes. It is, furthermore, proved that despite the existence of some misconceptions, the establishment of morality and its mingling with family rules and regulations is in fact regarded as a guarantee for its execution and with the help of such morally-oriented rights and duties, the family members may consolidate this sacred institution. To this end, some of the legal and judicial rulings such as the rights and duties of parents and children and the relationship governing spouses in the family are dealt with via a moral approach.

Quality condition is one of the terms of contract that the guarantee against its violation is the emergence of the right to cancellation for the party in whose favor a condition is set. Sometimes the quantity (miqdār) of the object of transaction is stipulated within a contract as its quality (ṣifat), but the guarantee for its execution in all instances is not the right to cancellation, because the quantity is a quality that is sometimes essential and regarded as part of the subject of the contract and sometimes appears as peripheral. Influenced by diversified legal opinions in articles 355, 384, and 385 of civil law, the legislator has also expressed different rulings for violation of this condition; therefore, we see different comments among the legal experts and conflicting opinions in the judicial procedure. The remarkable point about the condition of quantity is the distinction of these three articles from each other and the application of the referents to them. This research tries to remove their ambiguity by means of delving into legal sources.

From the perspective of civil responsibility, the basic principle in domination over another’s property is ḍamān (indemnification) and one of its exceptions is yad al-amīn (lit. trustworthy hand). The trustee is not accountable for the damage or destruction of the property entrusted to him so long as he has not committed any violation or negligence (taqṣīr, tafrīṭ). This article is intended to answer the question as to whether the trustee is acquitted of the ḍamān in the state of negligence in case he would restore his trustworthiness in his undertaking by means of a legal repentance after perpetrating negligence. Given the trusting nature of some specific contracts, this notion takes on great importance, the fruits of which are stressed in the present research. In view of the functional aspect of this legal-judicial issue, it is attempted in this article to broach the three viewpoints of the Imāmī jurists and their arguments and by stating some of the legal propositions influential in ḍamān and amāna (trust), which are effective in solving the problem, critically review all the three arguments, and finally present the answer to the above-mentioned question in respect to the conventional dimension of the issue and the attitude of the intellectuals.

Terrorism is among the phenomena that has nowadays basically received the attention of political trends, media, and the researchers in the fields of politics, jurisprudence, and law. On the other hand, many of the distortions and unduly accusations made against Islam and the Muslims are related to this phenomenon. Thus, legal study of terrorism and its exploration from the viewpoint of jurisprudence seems necessary for providing an appropriate response to the onslaught of the enemies of Islam.This article, at first, addresses the semantics of the word terrorism in dictionaries of political sciences and re-examines the concepts synonym to it, such as: fatk (violent killing), ightiyāl (assassination), and irhāb (terror) in the earlier and modern literature and distinction of these concepts from each other as well as the words related to this discussion such as: baghy (injustice), muḥāriba (waging war), and jihād (holy war). In the section on legal study, while explaining the subject and the distinction of different kinds of terror, it examines different types of terror by the way of generic and specific proofs from the Qur’ānic verses and traditions. In the end, some of the propounded misconceptions are responded to and the jurists’ viewpoints about terror are touched upon.

Although in principle the benefit and loss resulted from partnership is to be taken into consideration in private relationships proportionate to the parties’ shares, prediction of stipulating more benefit or exempting all or part of the loss in the company’s contracts, with respect to the existing necessities and the need for maximum participation, is a common practice. Whereas, the article 575 of the civil law apparently does not approve all these stipulations; rather, on the contrary, it signifies the invalidity of the condition of surplus benefit without extra action and the condition of greater loss for some of the partners. That is why it is necessary to reappraise and critically review the discursive principles of article 575 in order to better understand it.In this respect, through studying various legal and judicial dimensions of the issue in question and close examination of the principles presented by the jurists and legal experts, it can be concluded that there has been no barrier for approving the above-mentioned stipulations and that it behooves the legislator to provide for the possibility of predicting the stipulation of more benefit without its conflict with action and the possibility of stipulating greater loss.

The Holy Lawmaker’s predilection concerning “private parts (furūj) and blood (dimā’)” is a subject clearly obvious to any jurisprudence researcher. This predilection has prompted the Holy Lawmaker to proceed to devise “special preconditions” besides “general preconditions of validity in oral testimonies” such as justice, multiplicity, and honesty of the witnesses in such instances as “testimony about adultery.” Included among them are instances like “stipulating agreement of witnesses”, “stipulating connection of testimonies”, or “stipulating vision in a specific way.” However, the basic point in this issue is that the renowned majority of jurists, in dealing with the evidences of these preconditions that mainly include the traditions related about the subject, have given legal judgments (fatwās) according to the apparent meaning of the traditions. Furthermore, some of them have neglected the ḥikma (true reason) for devising these preconditions so that commitment to these legal judgments sometimes entail corrupt consequences, sometimes even contradicting the initial ḥikma of devising these preconditions, i.e. “precaution in furūj and dimā’).The present article has studied the two preconditions of “necessity of connection of testimonies” and “stipulating vision in a specific way” in testimonies about adultery. The renowned majority of jurists have conceived connection (ittiṣāl) by its physical meaning or, under the second preconditions and based on some conditions mentioned in such traditions as k’al mīl fī al-mikḥala (like a kohl stick in the kohl jar) or k’al rishā’ fī al-bi’r (like a rope in the well), have maintained the topicality of these conditions in stipulations, regarding as insufficient the vision lacking the above-mentioned mode in testimony. The writer considers the renowned view under the first precondition as contrary to precaution and considers its acceptance in the second precondition as causing the suspension of legal punishment (ḥudūd). With justification of the traditions concerning stipulating connection of testimonies and contrary to the renowned view, he conceives it as its conventional connections and also conceives the conditions mentioned in some traditions as the vision of concomitant preliminaries denoting adultery. Without causing abandonment of the traditions, these two predications are both compatible with the principle of caution concerning furūj and dimā’ and not necessitating the suspension of legal punishment.

After the victory of the Islamic Revolution and the attempts of the Islamic Republic’s officials to legalize the Islamic juridical institutions, some issues were set forth that were unprecedented in jurisprudence. To respond to these issues, the contemporary jurists made great efforts to present responses to the state’s legislators and judicial system. These responses have not been the same in all cases and are likely to be legally divided upon. Among the issues in question is what is known as “damage surplus to blood money (diya)”, which, although some discussions and religious inquiries (istiftā’s) have been made about them, some of their aspects are still ambiguous and remain to be explored into by researchers. The present paper addresses the basis and realm of damage surplus to the amount of blood money paid, in which, besides the judicial nature of blood money, different viewpoints concerning this issue are studied and various referents of damage surplus to blood money from the legal and judicial point of view are evaluated.