نشریه قرآن، فقه و حقوق اسلامی
پیاپی 6 (بهار و تابستان 1396)

The necessity of compensation for Loss sustained by the loser because of the conduct of the person who has done a harmful act is an important principle of civil liability among all legal schools and systems. It has also a special status in Islamic law, which is one of the most important legal systems. Several verses of the Quran, which is the most important source of jurisprudence, are dedicated to this matter such as verses on transgression, punishment for sin, avenging oneself, punishing the self, public accusation. In addition to deducing the positive law for the necessity of compensation for loss from these verses, one can deduce a number of important rules on the liability out of the agreement including full compensation for loss and some other methods of compensation for loss like objective compensation for loss (restoration of the previous situation) and compensation by the equal (similar or the price) for financial losses.

Finding the Quranic principles for the main legal titles like civil liability can create legal unity among Muslim communities around the world; since the Quran is the only acceptable source of law among all Islamic legal communities. Some scholars believe that the holy Quran’s verses on rejecting oppression can be made as a basis for civil liability. Considering the importance of this claim, the present article aims at its verification. The research is constructed into three main parts: The first part, discusses the semantics of several main subjects including civil liability, oppression, liability, and so forth. The second part, studies the territory of oppression and the question as to whether the oppression is applied to the human’s involuntary acts. The third part, investigates the question as to whether the unlawfulness of oppression and liability are concomitant. Finally, it is proved that the verses on rejecting oppression in the Quran can not be made as a basis for civil liability.

There are different views on the legal situation of adoptive parent marrying adopted child. One view considers the modern child adoption as a new legal entity, which has no record and no traditional evidences in the history of early Islam. Therefore, adhering to the conduct of the wise, it prohibits the primary rule of marriage of adoptive parent and adopted child. Another view, relying on some verses of the Quran and their wrong interpretation, considers adopted child as a biologic child and therefore a congenital person and forbids such a marriage under its primary rule. Yet, a number of modern jurisprudents, seeking to create changes in the situation of the society and legally competent persons, to observe prudence and to prevent evil and corruption, consider the secondary law of such marriage as unlawful. The view of the jurisprudents of Guardian Council, as a part of the ruling body, holds that the marriage of adoptive parent and adopted child– conditioned on a note – is unlawful, but majority of jurisprudents hold that it is lawful. The present article, after explaining every one of the above-mentioned views and reviewing the existent arguments, criticizes them and finally supports the famous view of the jurisprudents and considers it in agreement with verbal text of the verses of the Quran. In addition, it holds that the government’s conditional prohibition of marriage of adoptive parent and adopted child is against the verses of the Quran and has no considerable result.

Sex change is defined as “changing the sex of a male into female, a female into male, neutral into male, neutral into female, male into neutral, or female into neutral.” The general definition of sex change covers animals and even plants. There is a great disagreement on sex change in transsexual persons. Some Shi'a jurisprudents hold that it is lawful. In contrast, all Sunni scholars hold that it is unlawful. Of course, some of the Shi'a jurisprudents have changed their views and believe that it is unlawful. In the view of those Shi'a scholars who believe that sex change is lawful, there is no reason for unlawfulness of this new phenomenon. One of the most important arguments of those who hold that sex change is unlawful – considering the Sura Al-Nisa`, chapter 4, verse 119 - is unlawfulness of transformation of God’s creation. Referring to exegesis books it is made clear that essentially this verse does not pertain to the modern issue of sex change. Some other jurisprudents rely on Sura Al- Shuara, chapter 42, verse 49 to prove unlawfulness of sex change. In response to this argument, it seems that sex change is a possible matter and in the case or gender reassignment the religious law for the opposite sex is applicable to him/her. Another argument relied on by the jurisprudents is Sura Al-Nur, chapter 24, verse 30. It seems that this Sura also does not pertain to the unlawfulness of sex change. In the view of Imam Khomeini and some other jurisprudents, sex change is not unlawful, but it invalidates the previous marriage and changes family titles as well as the legal share of inheritance of transsexual based on the newly reassigned gender.

Under “support responsibility rule,” the international community is responsible for defending the people under the ruling governments that can not or do not want to support their citizens. The responsibility has three levels: “prevention”, “confrontation”, and “reconstruction”. To make a comparison, the three levels have been stated more reasonably and consistently in the Holy Quran about 15 centuries ago; such that a great part of the verses is devoted to prevention level. The Quran, from one hand, prevents the humans from oppressing the others through stating ethical values, preaches, and advising them to being pious. On the other hand, advising the people to strengthen their military power, the Quran provides the ground for the fear of the oppressors in order that they do not think of oppressing the people. In confrontation level, the Quran, in addition to ordering the people to fight the oppressors, orders the oppressed to migrate to secure places. In reconstruction level, the Quran advises the people to make reform and to exercise justice.

There is definitely a punishment for apostate in Islamic jurisprudence, but a question raises here as to whether the apostate is punished only because of his belief or for his making corruption, weakening religious society and opposing Islamic government? Is it possible to impose or punish a matter of heart and thought? How is this consistent with the view that there is no compulsion in religion? The author of the article tries to prove that the punishment of apostate is not because of his belief but for his criminal act; therefore, if apostasy originates from a scientific doubt - but not carnal desires - one should strive to remove it, and unless his obstinacy is proved he should not be punished. Therefore, although belief is a matter of heart not capable of being imposed, criminal conduct or act is voluntary and optional. Therefore, there is no conflict between the view that “there is no compulsion in religion” and the punishment of the apostate. As the holy war with unbelievers is intended to provide the ground for calling and communicating the word of Allah to the people and in this path the tyrants are removed but religion is not imposed.