پژوهشنامه متین
پیاپی 76 (پاییز 1396)

It is essential to protect family as the major component of the society. To that end, identifying the rights of the couples and observing these rights by either party will result in family reinforcement. One such right is the non-financial rights of the couples toward each other. The legal system of Islam has certain fundamentals and codes for the rights and relations governing the life of the spouses, so that some rights and duties are suitable for husbands while some others suit the wives. The basis of the enactment of these rights and duties rests on the inherent differences between the two genders. In view of Islamic jurisprudence and law, the non-financial rights and duties of the couples fall into three categories (joint, exclusive for wives, and exclusive for husbands), but since non-financial rights of the spouses are heavily dependent upon common law and ethics, they have been subject to recurrent changes in the course of time. The opinions expressed by the jurists and thinkers, too, have not been independent of the common law and public opinion in their time. This research work, developed on an analytical method, intends to study the three above-said categories concerning the non-financial rights and duties of the married couples, through reference to, contemplation on, and review of Imam Khomeini’s works.

In the course of history, man has always defended his life and property against any aggression. Despite the fact that the principle of self-defense has been widely accepted as an authorized act, there is difference of opinion among the theoreticians of law on the fundamentals of this principle. Some consider self-defense as criminal defense factor and a means of negation of criminal liability, while some say it is legitimate, and some others argue that it is a task and liability. In this paper, we will review some jurisprudential documents (narratives) of the legitimate defense, clarify its conditions and requisites, present a fourth theory, and finally we will try to substantiate the hypothesis. As a matter of fact, as far as the offender is committing aggression, his life and property is not covered under the general rule of respect. Thus, if the defender imposes financial damage or wounds on the offender or even kills him, he has indeed acted upon his liability and the blood and property of the offender shall not be subject to compensation since the cause is more responsible than principal.

Globalization, as a multifaceted and highly influential phenomenon, has both become a centerpiece issue in world studies and drawn theoretical and political reactions as well. Similarly, during the recent years, the issue of globalization has deeply affected Iranian society and politics from various cultural, political, social and economic perspectives. To that end, globalization has turned into one of the important subjects for study and has sparked heated discussions among the researchers as well as political observers and activists. In this paper, we have tried to design and present a model for analyzing the impacts of political globalization on state through reviewing the nature and functions of the state to work on this question: How has the Islamic Republic of Iran, as an ideological state, reacted and still reacts to the globalization process? Based on the theoretical model of this paper, the findings show that the nature of state in Iran has shifted from Westphalian and Weberian form to post-Westphalian form. This is because in view of the nature of governance today, we are witnessing a type of government that is a combined form of governance by transnational and infra-national forces, while in view of function, the state insists on enforcement of Westphalian measures. Such non-conformity creates tensions and challenges in policymaking and decision-making procedures of the state.

Although reviewing juridical views and comparing and contrasting them with the current positive laws can be useful in more and better understanding of unilateral juridical act, it can also show the weakness of existing laws and theories in clarification of this legal provision as well as its conditions and effects. Whereas in contracts there is the possibility of including conditions or terms of rescission, this becomes highly significant and the differences of opinions become highlighted. The discords appear knowing that the conditions in nature are the result of agreement between two or more people, whereas unilateral juridical act is constituted based on a will. Therefore, apparently there is no possibility of including a condition in this principle. On the other hand, any factor imposing a defect in a positive act will be unacceptable according to common law and Sharia law, such as unilateral revocation that has created a right for the other party. These reasons plus a number of other factors, which will be covered in rejecting the condition and revocation in unilateral juridical act, as well as verifying these factors along with the faults found constitute the bulk of this paper.

Ethics inspired by the teachings of the religion of Islam enjoy a special status in Imam Khomeini’s thoughts. Such ethics play a key role in spiritual refinement, upbringing, spiritual growth and perfection of man and in formation of an ethical community favored by the religion of Islam. Imam Khomeini both promoted ethical codes in his line of thought and proved to be a perfect man in his code of conduct based on important ethical characteristics. All those keeping company with Imam Khomeini certify that all his life was full of ethical values. His strong adherence to ethical codes was laudable and his deed was a manifestation of his creed. His political performance served as a perfect model for all and he proved that man can turn into a perfect human through spiritual refinement, adherence to good ethics, and acting upon codes of ethics.

In view of Imam Khomeini, the right of freedom for women is based on rational, traditional and intuitional foundations. The voluntary act, that has been stressed in religious teachings and is of scholastic origin, is the pivotal element of the right of freedom according to Imam Khomeini. The rational element of man’s freedom, that bestows freedom upon man and woman, is the “principle of monotheism and monopoly of the obedience to God.” The common sense makes man obedient before God and in this sense, freedom of opinion, freedom of life, and other types of freedom are clarified as far as they are not against the Divine law. In theosophical intuitions, the right of freedom is accidental that returns to its origin, i.e. The Ultimate Right (God).
In view of Imam Khomeini, the right of freedom for women is very extensive in such a way that women can freely – like men - participate in all social, cultural, and political activities (except the capacity of the Guardianship of the Islamic Jurist). Imam Khomeini believes that a prosperous society depends upon the performance of the righteous mothers who rear righteous children, introduce righteous models to the society, and give the society righteous people. The issue of human reverence, where he attaches equal significance to men and women, distinguishes Imam Khomeini’s attitude toward freedom from that of the Western approach to freedom. It is collectable with some restrictions in Sharia law.

Mines, including the solid, liquid and gas resources created naturally either deep inside the earth (underground) or on the surface, are important assets for economy and development in any country. Familiarity with the rules and regulations on the mines, specially mine ownership, is very important in wise management and right exploitation of mines. The difference in lands – that are the places for formation of the mines – have created conflicts and challenges in view of ownership and posed a question for the jurists: What is the criterion for ownership of mines? Imamiyah jurists maintain three viewpoints in connection with mine ownership. A number of them consider mines as the public wealth. Some say the ownership of the mine belongs to the land where it has been formed. Therefore, they argue that a mine in private land belongs to the owner of the land, a mine in public land belongs to the public and the mine in the anfal lands (lands originally belonging to Imam of the Muslims) belongs to the Imam; while renowned jurists of the past and some contemporary jurists argue that mines are instances of the anfal lands, thus they belong to the Imam of Muslims. Imam Khomeini’s opinion on mine ownership is the same as this one.