مجله مطالعات فقه و حقوق اسلامی
پیاپی 1 (زمستان 1388)

In Iranian law system، the article 264، spelling out the causes of the abrogation of obligations، does not refer to the principle of revocation condition. While in article 1234 in the French law، which has been a reference for the above mentioned Iranian article، this principle has been mentioned as one of the causes of the abrogation of the obligations. One can rightly assume that if such a condition is included in a contract for a transaction، it should not be inconsistant with Iranian law system. Taking this consistency condition for granted، questions arise as to what the underlying legal principles and nature of revocation condition are and whether the consequences of such a condition are retroactive or are targeted at future. This article seeks to analyze the significance، nature، scope، and the consequences of the revocation condition.

Man’s relationship with his body parts is an issue that has been paid attentiuon to in dealing with some modern problems. Determining the nature of this relationship sheds some light on the limits of human possessions. Some believe that this relation is of ownership type. Som believe that it is of trusteeship type. Accorting to some others، it is control and dominance. This article supports the latter view.

Many of the legal principles، rules of jurisprudence and religious decrees are based on the appearance of verses and hadiths and one of the most appropriate references for judging appearance is common law. Reasons underlying necessary religious rules، forbidding evil acts، the right application of Quranic verses and hadiths all rest on common law. An investigation of Islamic jurisprudence literature reveals that sunnite scholars point to common law using the terms urf and aadat. These terms has also been current in Shiite jurisprudence literature up until two centuries ago. Then، terms become current. Shiite scholars have usually used the terms Sireh Oqala and Targheh Oqala (ways of the wise) to refer to to this practice. This article mentions the conditions for the validity of common law and common-law practices. The Shiite and the Sunnite do not agree on common law as a final proof. Sunnite scholars، particularly the Hanafi’s، consider common law the final proof and widely depend on it. There are three points of view among Shiite scholars: some believe that common law is essential and does not need the approval of the tegislator; some believe that there is no difference between the decrees of the common law and those of the reason; and some others believe that the validity of the common law depends on the approval of the legislator. This article attempts to show the influence the common law has on Islamic jurisprudence and Iranian legal system.

There is no doubt that volition is a human attribute although philosophers have different views on its nature. In order to fulfil any act، especially legal ones، volition goes through five stages: 1-conception، 2-assessment of benefits and losses، 3- confirming the necessity for fulfilling the act (consent)، 4-decision-making، and 5-implimentation. In order to fulfil a legal act، “creative intention” is essential which is in contrast with intention of report. Volition in legal acts has two dimensions: internal (real) and external (declaratory). Where there is a contract between these two، internal volition is preferred. We understand from the stages in volition and the differences between intention and consent that intention is an element which creates the contract، while consent validates it. So، if intention is absent، the contract is void; and، if consent is absent، it will be invalid. This writing looks into the views expressed by Imamiah and general jurisprudents and Iranian and non-Iranian law scholars on the above-mentioned issues.

Since long ago، a question has been the concern of the medical prachtioners، patients and their relatives: what about the likely، and probably irreparable، losses، while the patient and the prachitioner have both been in full consent on the medical process? The authors of this article seek to find a solution for cases of criminal errors or cases where the law is silent or is in contrast، at least by providing their personal and export legal interpretation of the present criminal medical rules. No doubt، the present article can reduce the worries of medical teams concerning the legal and criminal consequences of medical treatment. According to present rules، if the members of medical teams have enough expertise، their medical or surgical work is lawful and they have taken all technicall and scientific standards in to consideration، they are not taken accountable; otherwise، they are legally and morally accountable (article 59، Part Two). Medical teams have two types of responsibility: civil and criminal. This article is concerned with the criminal type، which is more important and crucial. It describes and analyzes the present rules and regulations and tries to clearly and coherently articulate the criminal liability of medical teams according to Iranian statute law and provides reasonable and scientific suggestions where there are lacunae.

One of the qualifications for a judge in Islamic legal jurisprudence is ijtihad in its common usage، although some Islamic jurists have opposing views to this. This article، preferring the views which oppose the necessity of ijtihad for the judge، critiques the view which considers it necessary. By describing the Iranian legal system and reviewing the religious reasons، this study emphasizes two fundamental issues: appointment of the judge by an authoritative legal reference and litigation based on rules and laws derived through a correct procedure of inference. The article goes on to deal with how these two principles are guaranteed in the current legal system and mentions some of the shortcoming and practical problems with the “necessity view”. It asserts that، due to many changes in litigation and judgement procedures، such a prerequisite seems very difficult. It cannot be denied that ijtihad is a great advantage in line with the goals of Islamic legal system and Iranian constitution. Non-mojtahid judges must also be well familiar with Islamic jurisprudence and the principles of Islamic law، which are the basis of the current legal system and laws.

According to Islam, man is created free. However, the severe sentence for apostasy has produced a misgiving to the effect that Islam imposes its belief system and prevents freedom of man. This article tries to show that the penalty for apostasy is a political rule formulated to confront enemies fighting Islam. The purpose of this rule is to support Muslims’ social rights and it has never been a basis for the imposition of any belief yet. The following issues have been discussed in this article: 1) canonical rule and the way to recognize them, 2) references to apostasy in the Islamic jurists’ works and their emphasis on it, 3) studying and analyzing verses of the holy Quran about apostasy, freedom of belief, respect for knowledge and the renunciation of blind faith, and examples of sentences for apostasy by the infallibles.