فصلنامه فقه و اصول
پیاپی 118 (پاییز 1398)

Sira, meaning the continued way and method, is a manifestation of custom which has in contemporary Usuli works gained an unprecedented place in the inference of religious rules and despite all efforts by Usulis to delimit its thematic aspects and the conditions of its authority, there are problems with its accurate and systematic application from the aspect of jurisprudential functions and a sort of diversity of opinions and disagreement is noticeable in this regard. This paper, through a case study method, has studied the status of the conduct of wise and the custom of the people of the religion among the evidences of opinions regarding the infant's contracts and after a quick review of semantics of Sira and infant and an overview of other evidences of opinions regarding the infants contracts, has attempted to give a report on the opinions of a number of Islamic jurists with regard to the status of Sira in declaring validity or invalidity of such contracts. The results of this research show that in applying Sira as evidence, a spectrum of opinions has emerged and their contradiction indicates considerable diversity among the jurisprudential commentators and more than ever, reveals the necessity of regulating the jurisprudential and Usuli thoughts in this regard.

One of the exceptions to Hadd for theft is the theft of husband’s property by wife. A review of the Islamic jurists’ statements indicates disagreement among them regarding the limits and scope of this issue. A group of Islamic jurists believe that theft of husband’s property by wife in exchange for alimony is absolutely permitted and may not lead to the Hadd of amputation. Another group maintain that theft by wife is authorized only in case she is in emergent need of alimony and the absoluteness of this opinion necessitates that in case of theft of husband’s property by wife, even if the husband does not fail to pay alimony and such theft is neither in exchange for alimony nor equal to it, while the wife is in need of alimony, the Hadd of theft is not executed on her. A third group believe that in case the husband refrains from paying alimony and the wife steals his property to the amount she needs, or if the stolen property is beyond her need, the extra amount does not reach the limit of Hadd, the punishment for such theft is not Hadd. After the arguments of these three groups are studied and criticized, finally, through analyzing the famous hadith of the Prophet, it is concluded that where the wife appropriates the husband's property in exchange for her alimony and the husband fails to pay alimony, non-execution of Hadd is in accordance with the rule, given the existence of debt and application of retaliation (taghass), and is it is not necessary to refer to the Hind's hadith. However, in case the wife appropriates the husband’s property in exchange for the child’s alimony and the husband fails to pay, given the non-existence of debt and the subject of retaliation (taghass), non-execution of Hadd is not in accordance with the rule.  Therefore, the only source for solving the problem in this case is the Hind's hadith.

In Imamia jurisprudence, there is controversy over the causes of realization and disappearance of the state of being married and how it affects penalties. The first issue in this regard is the notion of being married. The questions what is being married and what is the essential element of its realization are among the most significant issues in the area of crimes against chastity in Islamic criminal jurisprudence. The Islamic jurists have applied constraints in defining the status of being married any of which may make the concept and examples of being married different. Some differences are observed in the statements of Islamic jurists when declaring the examples of married man or woman which appear to have led to the change of the legislator’s attitude towards the status of being married in the two Islamic penal codes of 1990 and 2013. The present study intends to answer the question what is the essential element of realization and disappearance of being married. The study, through a descriptive method and rational analysis has concluded that the criterion of being married is the possibility of enjoyment and contrary to what has been stated in the Islamic penal code, temporary spouse may be a cause of being married as well.

Hadd is a punishment which cause, type, quantity and quality of its execution have been prescribed in the holy religion. Nevertheless, the Imamia jurists have different opinions about its causes, examples, type and implications. The Islamic penal code of 2013, not accepting the standard fatwa, has, mostly, adopted two attitudes of extensive criminalization and restrictive penalization in the area of hudud. Therefore, the extension of hudud domain has not been accompanied with the extension of penalties. Failing to be a regulated attitude, failure to determine, exactly, the limits of certain haddi crimes (crimes with fixed punishments), defective extension of hudud implications to religious taazirat which have been mentioned in hadiths,  failure to declare the standard fatwa in determining the hudud, violation of the principle of nullum crimen, nulla poena sine praevia lege poenali, contradiction of this attitude with the decriminalization policy of the judiciary, penal inflation and the criminalization of hudud being affected by western human rights concepts are among the critiques as to this attitude. This paper concludes that the legislative criminal policy in the field of haddi crimes should adopt the principle of changeability of penalties, based on their inherent finalism and subsequently, in case of doubt as to whether a punishment is hadd or taazir, adopt the principle that the examples are taazirat.

One of the deficiencies of the Iranian penal law is the failure to pay enough attention to the issue of tajarri (effrontery); despite disagreement among Islamic jurists regarding tajarri, undoubtedly, if tajarri is against public interests and other persons' rights and the dangerous status of the person committing effrontery (motajarri) is identified, a discretionary punishment may be executed on him or he may be sentenced to security measures  at the Islamic judge’s discretion , in order to prevent commitment of crime. However, such issue has not been envisaged by the legislator. The second point neglected in this regard is the failure to offer the exact definition and scope of tajarri; based on the famous definition of tajarri, its scope is limited to the case where an individual, based on his definite belief, violates practically, the divine lawgiver’s obligatory verdict, but subsequently, it becomes clear that the committed act was permitted. But it is understood from the statements of some Islamic jurists that any case of practical violation of the lawgiver's obligatory verdict in which the perpetrator does not achieve his purpose, is considered as tajarri, accordingly, a new definition of tajarri may be given which extends its scope to incomplete crimes as well. The authors, in this paper, intend, in addition to explaining different opinions of Islamic jurists concerning the scope of tajarri, to emphasize on its broad definition and clarify its status in penal law. Likewise, the authors intend to study in summary the origin of controversy among Usulis and strengthen the prohibition of tajarri on the basis of secondary verdict.

In the law of international contracts, the suspension right remedy due to the anticipatory breach of contract has been accepted based on multiple foundations. Under this right, the creditor who, before the due date of fulfillment of obligation has, reasonably,  concluded that the debtor, for any reason, would not perform their obligation, has the option to suspend his obligation according to the objective aspects criterion and after considering all surrounding circumstances of the case. In this paper, through a comparative approach in the Vienna Convention, its jurisprudential and Usuli feasibility in Islamic law will be studied and while presenting the suggested bases, by resorting to the rule of existence premise (moghaddameh vojoudieh) and the rules and issues originated from it such as rational, subordinate and  annihilatory premises (moghaddameh mofavveteh), the main discussed issue (execution of the right to suspend in anticipatory breach) and the disputed actual breach may be proven so that the status of this remedy is established and strengthened in the Iranian Civil Code.

The phenomenon of captivity is caused by war. Captive is a combatant captured by enemy forces during an armed conflict. As far as the captives’ rules and rights are concerned, a significant question not discussed adequately, is whether captivity is a right. If the answer is positive, is it the captive’s right or the captor's or the right of both? In fact, the authors intend to identify the post-captivity rules not pre-captivity rules; i.e. principally, does Islamic jurisprudence recognize a phenomenon such as “captivity”? What is the attitude of contemporary international law in this regard? This paper, after studying the possibilities of this issue, has concluded that captivity is a right for the powerless combatant and a rule and duty for prevailing forces. The sources of religious rules including the holy Quran, sunna and the behavior of wise all indicate the necessity of preserving the life of combatant who is not able to continue the battle. International conventions have emphasized on the encompassing respect of the captives' rights particularly preserving their lives.

The main issue in this paper is studying the main tools to understand religious propositions at macro-scale. This topic is discussed in the paradigm of Shiite theology, civilization-making religion, Islamic jurisprudence and Javaheri Usul. In this epistemic system, “Ijtihad” means “discovering the rule from its source” and “rule” means “religious creation relating to the acts of servants” and due to the qualification “the acts of servants” in the definition of rule, it has taken a behavioral individual  approach. The claim that Islam is civilization-making and deals with needs at the social and international scale, has caused the attempt to infer the viewpoint of Islam at a collective scale and with extraction of processes attitude to be taken seriously. The necessity of having authority for religion in order to be cited, has led to concentration on methodology of such attempt. This paper pursues such purpose and its results in three main respects are: 1- changing the definition of rule to “the creation issued by the divine lawgiver to regulate the man’s life”; 2- changing the nature of adoption of words from adoption for examples to adoption for spirit of meaning (process); 3-using the systems logic for gathering evidences. By systems logic it is meant considering each rule as a processor to convert its relevant inputs into intended output in which the starting point of process, central core , stages, crisis points are defined based on evidences.