مجله فقه مقارن
پیاپی 12 (پاییز و زمستان 1397)

The study of the history and the course of Ijtihad in Islam indicates that Ijtihad was carried out with two approaches; the first approach of Ijtihad was to understand and interpret Islam. Following the advent of Ijtihad, in order to understand the word of Islam, Ijtihad was used to prove the legitimacy of Ijtihad itself and to give reasons for the legality of Ijtihad and determine the value of opinions based on Ijtihad. The issue was whether Ijtihad is possible to achieve the truth or not. Also, the other question was that in which fields Ijtihad is allowed. In this way, the possibility or impossibility of knowing about the truth of the opinions based on Ijtihad was raised; this concept can be called Ijtihad in Ijtihad. It is through Ijtihad in Ijtihad that mujtahids can judge about the truth or falsehood of Ijtihads of other mujtahids. Some of the Ijtihads of the Mujtahids have been described as deviation and the Mujtahids have been described as blasphemers, corrupted, wicked, aberrant and misled while the nature of Ijtihad necessitates the existence of different and dissimilar opinions and it is possible that the Ijtihads of the Mujtahids who have been attributed by those descriptions, be true, and this lack of commitment to the right to express different ideas and creation of different Ijtihads has led to the emergence of extremism. Therefore, the way to fight against extremism is commitment to Ijtihad, i.e. the right to have a different theory in the Islamic society.

Animal reproductive cloning is one of the most amazing achievements of the modern time. From the moment that the first animal was cloned, religious circles in different countries and from different religions have dealt with various dimensions of the probable production of human using the new technology in near future. Destructive social effects resulted from this new advancement are included among the objections raised against it. This article is aimed at studying the jurisprudential views of the Shia and Sunni scholars on the social consequences of human reproductive cloning. Destroying the tradition of heterogeny, distorting the gender population balance, production of humans without identity, destruction of family foundation, human population explosion on the planet and the shortage of food, are the most significant social consequences about Human Reproductive Cloning. After presenting the opinions of Sunni scholars regarding this issue, the views of the Shia scholars will be expressed and studied in an analytical comparative way.  

Ibn Hazm, Ali Ibn Ahmad (384-456 AH. 994-1064 AD), an Andalusian jurisprudent in the 5th century (AH.), was a leading proponent and codifier of the Zahiri school of Islamic thought. In his view, Ijtihad is the effort for finding Sharia laws from the manifest (zahir) meaning of Islamic texts and Ijtihad is compulsory for common people. His thought is based on the three principles: “the existence of all Sharia laws in the manifest (zahir) meaning of Islamic texts”, “the necessity of learning Sharia laws for every Muslim” and “prohibition of imitation (taqlid)”. He believed that Ijtihad of common people means trying to find religious rules through referring to scholars. In this article, through a library research in analytical-descriptive method, “Ijtihad of common people from the viewpoint of Ibn Hazm” has been explained and evaluated and it has been mentioned that if we believe that “all of the Sharia laws exist inside the Islamic texts”, it means that all of the subjects which are not directly mentioned in Islamic texts are permissible (mubah), and it is not compatible with the age of the companions (sahabah) and all the ages after them, and interpretation of a jurisprudent from the texts is inevitable and it is considered a proof, at least for the jurisprudent himself. The right of common people to select their trusted jurisprudent is a kind of effort, but considering the act of asking a jurisprudent about Sharia laws as Ijtihad, is not exact and it is not commonly observed in the works of scholars of jurisprudence and principles, and sometimes it can lead to social and devotional problems whose damage is far beyond the acceptance of imitation.

Adoption, which is called “tabanni” in jurisprudential terminology, is a precedent subject that has also found many new examples in Islamic and non-Islamic countries. This title has been linked to an incident in Islamic history, i.e. the historical narrative of Zayd ibn Harithah who was adopted by the Prophet of Islam, which indicates a long standing custom at the time of ignorance, and provided the status of the revelation for the fourth and fifth verses of Surah Al-Ahzab. The verses of Surah Al-Ahzab refer to the prohibition of adoption in the form which was common in the pre-Islamic era, i.e. passage of all provisions of Sharia laws about the real children to adopted children. Therefore, analysis of this issue has been considered as an important issue in different Islamic denominations. With a review of the history of human life in different societies, we can see that humans have always paid specific attention to orphans or neglected children. Additionally, in Islamic societies, the high teachings of Islam have emphasized the importance of dealing with the affairs of the orphans. On the other hand, adoption in the present situation has a remarkable role to play in strengthening the foundations of childless families and improving the well-being in the society and eliminating the psychological problems of orphans and reducing abnormalities. Since Sharia laws are based on expediency of individuals and the society, and can be used to solve social problems, analysis of the jurisprudential laws of adoption, emphasizing the role of expediency and new inquiries around the issue, can find solutions to the problems of this group of children in the host family or the guardian family.

There are disagreements on the ownership of mines among Imami jurisprudents. Some have said that: mines are absolutely part of Anfal, i.e. the property of Imam or the Islamic governor. Their most important proofs are traditions. Some jurisprudents who, according to Sahib Jawahir, are the majority, categorized mines under the category of Al-Mubahat Al-‘Ammah, i.e. permitted for public. These scholars use “Quranic verses”, “the Five Traditions”, “conduct of infallibles” and “the principle of tamassuk (holding on)” as their references. Some jurists believe in tafsil (detailing) and therefore they believe that mines can be considered like lands and their primary reason for this is the rule of taba‘iyyat (following). Some other jurists believe in tafsil between external and internal mines and their primary reason for this is the rule of ‘ijma’ (consensus). According to rejection of reasons of other statements, and acceptance of proofs of the first group, and the answers to objections related to their reasons, the true idea is that mines are absolutely included in Anfal, and therefore they are properties of Imam or the Islamic government. The statements of Sunni jurists are different.  Hanafi jurists believe that the rule of mine ownership follows the rule of land ownership. Maliki jurists believe that mines absolutely belong to Imam, that is, the governor or the vicegerent of Imam. Hanbali jurists believe that the rule of mine ownership about solid mines follows the rule of land ownership and they consider liquid mines as Mubahat Al-‘Ammah and believe that utilization of liquid mines is permitted for public. Shafi‘i jurists believe that the ownership of a mine inside private lands is related to the ownership of the land, but if the mine is located in waste-lands, it belongs to the public and no one can own it.

Equity as the main path for penetration of morality in law is the foundation of many jurisprudential and legal laws and rules. Equity, as the good behavior of the social conscience, leads to the establishment of true justice in the Islamic society. Accordingly, equity cannot be silent encountering contracts concluded in emergency situations. Basically, contracts concluded in emergency situations are correct contracts but in some cases (when one of the parties who stands in a top position abuses the emergency situation), influence of this contract will be in doubt, because equity disallows abuse of the emergency situation in a contract. In Common Law legal system, according to “the doctrine of unreasonable” in which equity is the main core, equity disallows abuse of the emergency situation in a contract. Similarly, jurisprudents, based on the principle of equity, disallow abuse of the emergency situation in a contract, according to the Rule of “No Harm” (La Dharar) and the Rule of “No Hardship” (La Haraj).

The conclusion of a contract conditionally indicates that one party (the obligee) has conditioned his or her obligation regarding the provisions of the contract to the fulfilment of a condition or some conditions by the other party (the obliged); in fact, the obligee has written his or her will conditionally. Therefore, if the obliged party contravene condition or conditions of the contract, the continuity or the possibility of the contract annulment should be decided about. Regardless of the Condition of Result which it is not possible to be contravened, and the Condition of Quality whose contravention leaves no way but the possibility of annulment for the obligee, different opinions have been presented about facing the contravention of the Condition of Action in jurisprudential texts. From among the opinions we can mention that some jurisprudents have introduced the possibility of forcing the obliged party to fulfill the condition or conditions along with the possibility of the contract annulment. Some others believe that forcing the obliged party is not possible and it is just possible to annul the conditioned contract. However, in Shiite jurisprudential texts, the possibility of marriage annulment due to the contravention from Condition of Action has been left unsaid and it seems that the marriage contract, from the viewpoint of most of the jurisprudents has been excluded from the general rule prevailing the contracts. The tendency of some jurisprudents and researchers in presenting viewpoints, including calling the offender from the condition as a guilty person, or nullifying the legal act whose leaving has been a condition of the marriage contract, indicates the preclusion of marriage annulment in their viewpoints. In Sunni jurisprudential schools, only the opinions of some Hanbali jurisprudents have strengthened the possibility of marriage annulment due to the contravention of Condition of Action. In this study, it has been attempted to prove the permission of marriage annulment due to contravention of Condition of Action through presenting independent reasons on the possibility of marriage annulment based on the Option of Unfulfilled Condition (Khiyar al-Ishtirat) and also scientific and exact review of the reasons of opponents to annulment.

Specific rules such as division of marriage portion into halves in case of divorce before sexual intercourse and the wife’s right to refrain from submission until the marriage portion is paid have been applied to marriage portion according to Islamic jurisprudence and law of Iran. A significant question arises whether the spouses may, after concluding the marriage contract, increase the amount of specified marriage portion by mutual consent so that the marriage portion rules apply to the added amount? This paper, through descriptive-analytic method, has studied the above said issue in jurisprudence of Islamic schools of thought and Iranian law. The results of this paper indicate that there is controversy regarding this question in the Islamic jurisprudence. The Hanbalis and some Hanafis apply the rules of marriage portion to the added amount. According to the opinion attributed to Malik ibn Anas despite the increase is accepted, a number of portion rules would not be applied to this amount. The Imami and Shafi‘i jurists do not consider the added amount as marriage portion. A review of the evidences proves that non-application of portion rules to the added amount is stronger. As regards this question, there is controversy in the Iranian law. In order to prove the validity of agreement to increase the specified marriage portion and application of marriage portion rules to the added amount, a number of evidences including freedom and validity of contracts principles, Taslit Rule, marriage portion not being an essential element of permanent marriage, 24th verse of Surah Al-Nisa, the right to decrease the specified marriage portion and validity of calculating cash money marriage portions at the daily rate have been put forward. However, in this paper, after the above said evidences have been reviewed, their capability to prove and their signification as to the application of specified marriage portion rules to the added amount has been refused. Nonetheless, it has been emphasized that given the fact that marriage is a part of personal status, under principles 12 and 13 of the Iranian Constitution, the religion and religious schools minorities are free to obey the rules of their own religion and school.

Considering the individual and social aspects of man’s life, Islam sees acquisition of a deceased’s property not only permitted but also recommended and has legalized it through enacting the laws of “inheritance” and “testament”. According to the viewpoints of most Muslim jurists from different schools of thought, making a will is not obligatory though it is highly recommended. Today, in the laws of a number of Islamic countries making a will is considered obligatory in certain cases. In this study, through analyzing Qur’anic and traditional propositions related to the concept of obligatory will, the views of Muslim scholars will be examined. It seems that “obligatory will” is sometimes proper and according to justice. In the laws of the Islamic Republic of Iran the institution of “will” still needs to be more thoroughly discussed. This work concludes that there is adequate religious evidence proving the existence of grounds for legalizing this institution and including it among other rules of the Islamic countries.

In Islamic jurisprudence, Baghy is one of discretionary offences (Ta‘zir), which means armed action against the just imam. In Sunni jurisprudence, this action against an unjust leader can also be an example of Baghy. Although this criminal title has a long history in jurisprudence, but with enactment of Islamic Penal Code in 2013, legislator has criminalized it as a Hudud crime, and under Articles 287 and 288, legislator has recognized Ta‘zir imprisonment and death penalty for it under specific conditions. This action of the legislator that considers this crime as a Hudud crime, and predicts the death penalty for it, has challenged the nature of the crime and rulings and method of dealing with rebels. The present article seeks to study Baghy in jurisprudence of Islamic schools of thought and comparing it to the Islamic Penal Law Act 2013 and the Political Crime Law Act 2015.

One of the deals and contracts which are prevalent in the society today is Commenda (Mudharibah). Commenda is a contract, in which a person with the title of the owner issues a payment to another who is called the agent, to do business with it and to divide the profits in proportion to the agreed shares. Among the issues in Commenda is that in cases of profit, if the profits are not cash, but goods, then does the owner have the right to ask the agent to sell the goods and give money instead of goods? If the owner is entitled the right to this claim, is the agent obliged to sell all of goods, or is he only responsible for the amount of initial capital? The other question is that is it necessary for the owner of the stake to accept the request to convert the goods into money in order to achieve the desired goals, especially in the case of non-degraded Commenda? Therefore, all of these questions are equally questionable in cases of non-ordering of profit on Commenda. In this regard, the present article seeks to analyze the necessity or non-necessity of converting the non-monetary profit of the Commenda into the current currency and the issues related to this issue by analyzing the views of Shiite and Sunni jurisprudents in this regard.