پژوهشنامه متین
پیاپی 84 (پاییز 1398)

Imam Khomeini tried to establish a perfect model of Alavi (attributed to Imam Ali (AS), the first Imam of Shia Muslims) governance based on the principle of Vilayat-i-Faqih or guardianship of the Islamic jurists. The similarity between “good governance” in Imam Khomeini’s ideology and the Western definition lies in its apparent components since both pay attention to the rule of law, public participation, responsiveness, as well as other principles such as equitability and inclusiveness, effectiveness and efficacy of the government. In Imam Khomeini’s approach, however, vis-à-vis Western view of good governance, the material aspect is an intermediate goal while spiritual aspect appears to be the ultimate goal.Imam Khomeini has considered invariable and variable principles in his theory of Alavi governance that are based on the time, place and expediency of Islamic community. His practical pattern of conduct is Alavi governance but in realization of the goal, particularly in executive branch, it has not been wholly observed. One reason for the difference in action relates to the time and place requirements, although it can only be justifiable in the light of invariable principles.

By virtue of the principle of consensualism in legal practices, there is no other factor to verify the accuracy of transactions other than the legitimate existence and consensus of the wills. In exceptions to this principle, though, such formalities as applying certain terms and wordings, official documentation, etc. shall be included among the conditions for verification of the authenticity of the transactions. In the case of illegal forex trading, which is considered an instance of smuggling, inattention to the prohibitions, in addition to its imperative ruling, will affect the binding power of the transactions and will terminate the trading. This means that the mandatory requirements for legal forex trading, in view of the private law, are the required formalities for the accuracy of these transactions. Given the above, it is impossible today to consider consensualism as the only required formality for accuracy of the transactions; rather, they must be included among the exceptions to the principle of consensualism in legal acts. A review of Imam Khomeini’s viewpoints on transactions, as the founder of modern rule of the Islamic jurisprudence, indicates that such a manner of setting rules and regulations is neither based on Islamic-legal jurisprudence not can it help the lawmakers to fight the chaotic illegal forex trading.

John F. Kennedy came to power in the United States on the promise to promote “freedoms”. His pronounced objective for Latin America and Iran was to promote freedoms through reforms. However, since his proposed reforms did not aim to protect the interests of the target countries, they faced the opposition of the people in Latin America and the protest and opposition of Imam Khomeini in Iran. The main objective of this article is to study the objectives and the reasons for contradictions that surfaced between the objective and practice of the Kennedy Doctrine. The main question of this research is: What were the objectives of the Kennedy Doctrine and why did its practice contradicted its objectives? The hypothesis of this research is: The Kennedy Doctrine was formulated for the protection of the capitalist system within the paradigm of the Cold War, hence, in the course of its implantation, the geopolitical situation of the US allies, on the one hand, and, the opposition of the nationalist in Latin America and that of Imam Khomeini in Iran, on the other hand, caused the doctrine to fail in achieving it objectives. Documental and text analysis has been employed in this research and the necessary data were collected from Kennedy’s speeches and messages. The findings of the research indicate that since the Kennedy Doctrine did not take the interests of the target countries into consideration, in practice it sacrificed freedom to protect the interests of the capitalists system and the US geopolitical interests. 

 The scholars’ differences in opinion on religious law fundamentals and their approaches toward the practical principles such as authorization or istishab are among the major and decisive factors in issuing different Fatwas (nonbinding legal opinion on a point of Islamic law (sharia)) in various jurisprudential aspects. This paper has reviewed and analyzed the effects of fundamental differences in authorization of different Fatwas by jurists in some rules on option of lesion and defect based on Imam Khomeini’s views. The paper has proven that the differences in opinion of the scholars in terms of authorization are not merely theoretical and they have led to fundamental differences in their Fatwas in practice as well. For instance, the difference of opinion in sustainability of the option of lesion for the defrauded person in case of paying the balance by the deceiver comes from the difference of opinion in legal presumption of continuity of the status quo in doubtful case. Based on the views of some jurists such as Imam Khomeini, who confirms legal presumption of continuity of the status quo in doubtful case, in this case the principle of option will be valid. Also the difference of opinion in urgency of option of lesion is due to the dispute on priority of the principle of authorization over the principle of bindingness. As in the case of option of defect, despite difference of opinion on the disputes between the transaction parties at the time of the discovery of defect on the object of sale, the guaranty or non-guaranty of the vendor has its roots in the difference on non-existent authorization.

Countries need to enact a set of conditions called pillars of criminal liabilities in their laws and set pertinent policies to help impose criminal liability on persons. Despite sharp differences, the legal systems in Iran and Britain share some similarities. Iran’s law has been created based on Fiqh and law, while British law is a product of rules and regulations coming from the judicial procedures and they do not adhere to a unified criterion. This paper intends to find appropriate answers to the following questions: 1- On what basis do Iranian Fiqh and British legal system make their criminal liability policies concerning age, intellect and growth? 2- What are the two systems’ differences and similarities in policymaking on aforesaid areas? Both legal systems and Iran’s Fiqh have admitted criminal liability policymaking on age, intellect and growth as a principle despite their differences. In other words, imposing criminal liability on the individuals depends upon a certain period of age, intellectual development and physical growth.

AbstractThematic study, as a sub-branch of Philosophy of Jurisprudence, is crucially important in jurisprudential understanding of the related issued. The expansion of social relations has caused increased violation of private properties and increased legal complaints necessitate further discussions on limits of properties. In Islamic jurisprudence, with respect to the principle of no harm as well as logical and consistent usages, limits are often considered for any immovable property - according to common law - for full usage of the property. In the absence of an opposing rule by legislators, it is thus confirmed. The word “limits” has been also used in traditions but no measure has been mentioned for the limits as is. The only reference relates to the limits of benefit among the water resources. Given the weakness of the document and the availability of the contradictory deeds, it has not received due attention by the jurists, while some claim it has been issued according to the common law at the time. Therefore, in setting the limits for a property and with respect to the principle of the absence of (ownership deed or priority), one must refer to the common law in settling the disputes. This will open the way for new applicability.

Freedom is a key concept and a vital necessity that enriches human life to the full. Freedom to resist is a kind of freedom that seeks to promote awareness and to legitimize this right in the fight against domestic despotic and colonial rule and in gaining independence in life against the external powers. Justice is indeed the cornerstone of freedom to resist, something that Islam has emphasized in all its aspects. Therefore, the theory of political jurisprudence contrives and constitutes various aspects of the society and expresses human rights and duties based on Sharia law in various political and social issues. Freedom to resist emerges in such forms as civil disobedience and revolution, so that its infrastructures may be sought in three religious, sociological and anthropological groups. It can be also traced in traditions and narratives, the Book and in the jurisprudential principles of expediency justice, important and more important issues, prohibition of innovative manners, dissimulation and principle of no foreign influence. It bears mentioning that freedom to resist may be limited when its strength of action leads to violation of the social order, damage to others, and weakening of Islam or Islamic government.