نشریه مطالعات فقه اسلامی و مبانی حقوق
پیاپی 35 (بهار و تابستان 1396)

The problem of child abuse especially abusing it by the parents is one of the dilemmas that has been more visible in the society in the recent years and has severed the social sensitivities in this field. The noticeable fact is the parents’ legal authority to punish the child to discipline him which leads sometimes to loss of his rights and imposing of harms to his body or mind. The issue of disciplining of the child is propounded in the Islamic jurisprudence and has taken a legal position in Iran. Although we should not confuse the two matters but there is a common border between them. It is important to notice that the bodily punishment is one way to discipline of the child and should not be considered inevitable. Therefore, we can take steps based on the jurisprudential reasons to eliminate or at least draw a determined extent for the parents’ authority to disciple the child. To overcome the child abuse we should pass special protective regulations in addition to teaching the children’s rights and Islamic teachings to the parents to improve the physical and mental health of the child.

The hope for survival of the generation is natural for the mankind and is in fact perfection for him. The scientific developments have enabled today the coagulation of the human and other animal’s embryo by ways other than intercourse. Artificial Insemination that is insemination or creation of human being out of the womb without legal or illegal sexual intercourse or creation of human being inside the womb by farming or insemination of sperm is one of the new issues that have emerged as a result of the lapse of time and scientific progresses. The present paper studies the different ways of gestation and their religious edict; it studies the legitimacy of pregnancy by interference of a third factor that is strange sperm, ovum or womb by reference to the Qur’an, the tradition and the jurisprudential rules and principles and discusses the issue from perspective of the Islamic jurists and the new medical sciences.

The legislator has allowed willing for the embryo in the article 851 of the Civil Code following the Shi’a jurists’ idea, but on condition that it was born alive. The studies show that there is no explicit tradition proving necessity of this condition for willing, and the jurists and lawyers following the last jurists have accepted this idea and entered it into the Civil Code only by making an analogy between will and inheritance. The main prove for this idea is consensus which is firstly only about legitimacy of willing for embryo not the condition of being born alive, and secondly it is based on tradition (Madraki) which is not valid, in addition that analogy and unity of the criteria of similar matters has no legal and logical basis and therefore, invalidity of this condition is more justifiable.

There is no doubt that the family as a core has a fundamental and important role in security and health of the society. Therefore, Islam as a comprehensive and developed school has determined some conditions for constituting this holy institution and forming marriage to protect the health and security of the society and the human dignity. One of the conditions is the guardianship (Vilayah) of the father and the grandfather (father of father) over the son and daughter in marriage that is doubted and criticized by some persons and communities that have not enough knowledge about the Islamic progressive teachings. The present paper studies the issue from perspective of Imamiah jurisprudence and the Islamic Republic of Afghanistan’s laws. The traditions and the statements of the jurists show that the guardianship of father and grandfather (father of father) over the immature children is a presumed and accepted matter due to its protective aspect and the Civil Code of Afghanistan also has accepted the rule, but it has some conditions the most important of which is considering the benefits of the children. About the mature male children the jurists unanimously reject the guardianship. While there are different ideas about the mature virgin female children among the Imamiah jurists, the Civil Code and the “prohibition of violence against women act” of Afghanistan see the permission of the guardian (father and grandfather) unnecessary for this group of children both virgin and non-virgin following the Hanafit jurisprudence. The present paper has studied the position of permission of the legal guardian and its enforcement guarantee in marriage from perspective of Imamiah jurisprudence and the Civil Code and “prohibition of violence against women act” of Afghanistan and the findings are presented.

The rule “every prohibited act is punishable by T’azeer” that is one of the deducted principles in the Imamiah and Hanafit jurisprudence and is ruling over the T’azeers is the basis of legitimacy of many criminal laws. The majority of the Imamiah and Hanafit jurists have accepted the principle both in the major and little sins, but some of the Imamiah jurists confine it to the major sins and some others have rejected generality of the principle even in the major sins. To prove the principle the jurists have reasoned by the following proves: the general traditions that order to impose the Hads in the cases of violation of the divine orders; the special narrations of the Infallibles ordering to exercise the T’azeers on some sins; the traditions about obligation of deterrence of some sins; the manner of the Prophet (PBUH) and Imam Ali (AS) who have imposed T’azeer on some sinners while there was no T’azeer punishment determined for them; the principle “protecting the order”.

Bribery is a criminal act that is criminalized by Islamic Shari’ah and the law. The crime has harmful consequences in different social and economic fields and therefore, combating it legally, culturally and socially is necessary according to the religious and moral rules. Studying the sources shows that this anti-social act is one of the most blame-worthy acts and the perpetrator is subject to exclusion of the divine mercy. The present paper studying the Qur’anic verses, the tradition and the judgment of the intellect about bribery and reviewing the laws, proves that inclusion of prohibition of the titles of bribery is not confined to adjudication but rather it includes all the administrative relations. It also proves that giving and receiving presents in these relations is also bribery and prohibited.