فصلنامه جستارهای فقهی و اصولی
سال هشتم شماره 1 (پیاپی 26، بهار 1401)

According to Article 38 of the Iranian Civil Code, which is based on the maxim of “People have domination over their properties” and the maxim of “Whoever owns a land, owns it to the heights of the sky, and the depths of the earth,” the owner has the right to any occupancy of his/her property. Following domination over the property, dominating the depths of the earth and sky is also achieved for the person. However, today, practically, the absoluteness of property rights faces challenges in the light of scientific advances over the course of time and the requirements of urbanization. By examining the requirements and challenges of urban ownership, this study, which has used the descriptive-analytical method, concluded that under the influence of the demands of time and place and the need to meet the growing needs of society, the absoluteness of Article 38 of the Iranian Civil Code must be limited due to the maxim of ‘LāḌarar’ and observance of the public interest. Therefore, a citizen will not have the right to occupancy without obtaining the necessary permits from relevant organizations. Moreover, the final part of this article, due to the different laws restricting the owner’s authority, requires the exception of the majority, which is disapproved by the rules of the science of Uṣūl. Therefore, this article needs to be reviewed and changed.

One of the important conflicts in solving the problems of the jurisprudence of urban areas and urbanization is the conflict between the personal interests of individuals and the public interests of the city. There are many examples of this case that it can be mentioned as a jurisprudential maxim. According to this maxim, in the conflict between urban interests and the personal interests of individuals, it is always necessary to give priority to the interests of the city. To prove this, several arguments have been relied on, including some verses of the Holy Qurʼān, the Practice of the Commoners (sīrah al-ʿuqalā’), the maxim of the Sanctity of Disorder in the System (ḥurmat al-ikhtilāl al-niẓām), and the basis of the religious law  (sharīʿah). The result, however, is that one cannot always order to give priority to one over the other, but rather the precedence of each depends on how important it is to the other. Accordingly, each of the urban and the individual interests that were the most important take precedence over the other. However, it is usually urban interests that are the most important rather than individual interests and individual interests are often not on the “important” side.

In modern societies, the optimal use of municipal wastewater is considered a necessity in urban management. One of the concerns of the Islamic society regarding urban jurisprudence is the possibility of consuming polluted and impure water even after its treatment. Accordingly, transactions related to municipal wastewater, including impure water and urine, have been one of the jurisprudential challenges. The consensus of the earlier jurists and the disagreement among the later and contemporary jurists regarding the prohibition of the sale of sewage containing urine has made this issue the subject of controversy. The present study examines and analyzes the issue with the aim of explaining the jurisprudential decreeon the sale of municipal wastewater and sewage. The findings of this study indicate that the purchase and sale of treated municipal wastewater containing contaminated water and urine are allowed if it is used in applications that are not conditional upon purity (ṭahārah), such as industry and agricultural irrigation. The main arguments of the earlier jurists in preventing its usage have been due to the impossibility of its lawful usage. But today, with the creation of cities, the establishment of wastewater treatment plants, and the optimal use of wastewater, the lawful (ḥalāl) use of it has become possible.

The development of passageways, streets and communication networks are the framework of cities in general. They are one of the main factors shaping the structure of the city that play the role of its vital arteries. There is a clear relationship between the development of the city, the growth of its land price, the dynamics and economy of the city, and all the activities of the inhabitants of the city with the passageways network. The development of societies, the expansion of urbanization, and the emergence of many problems and restrictions in inefficient urban contexts, have created the need for policy-making, planning, and the implementation of public and development projects in the urban context. To solve this challenge, improvement and renovation plansconsider widening the passages as one of the appropriate solutions. Regarding the implementation of the principles and rules of these plans or not, there is a conflict between public rights and interests and private rights and interests of individuals. In this study, the reading of ‘LāḌarar’ maxim with the approach of the governmental jurisprudence of Imam Khomeini and Ayatollah Sistani is introduced as the appropriate criterion for solving this conflict.According to this theory, the maxim of ‘LāḌarar’ represents the authority and duty of the Islamic judge (ḥākim al-sharʻ) in denying harm (ḍarar) to the public.Accordingly, there is no doubt that the municipality has public power, but based on the theory of governmental jurisprudence, the municipality is appointed by the guardian-jurist (walī al-faqīh) as the arm of governing. In the course development process, the municipality does not have the right but the duty to widen the passageways. To resolve the conflict between private rights and public interests, the municipality is obliged to act in favour of public rights and interests wherever the denial of harm (ḍarar) to the public is proven, even if it is to the detriment of private rights and interests. The results of this view provide better and greater protection for the general rights of citizens and in cases of refusal and withdrawal, there is no need for a governmental decree, because the plan approved by the municipality, assuming it has legal conditions and the approval of the highest official of this institution, is the same as the governmental decree of the ruler.
Keywords: Widen the Passageways, Urban Management, Conflict of Rights and Interests, the ‘lā ḍarar’ Maxim, Governmental Decree, Governmental Jurisprudence, Ayatollahs Khomeini and Sistani.

The issues of urban and urbanization jurisprudence are new and challenging in the field of jurisprudence. The rapid development of cities and urban communities, the growth of the quantitative and qualitative level of urban life, and consequently facing new topics that are intertwined with urban life advocates jurisprudence in order to respond to the questions and issues of urbanization in accordance with the new issues and needs of urban dwellers in the construction of jurisprudence and sharīʻah. The place of memories in urban society in terms of identity and economy and their effective role is one of the urban issues that can be addressed. On the other hand, taking care of these places requires the enactment of laws that sometimes conflict with the individual jurisprudence of the citizens. Also, spending money from the public treasury to maintain these places, which are sometimes related to non-Islamic historical and civilizational periods, is itself questionable regarding the issue of whether it is legitimate to spend public funds to maintain these places or not. The jurisprudential view of this issue is very important in the Islamic urban society and the correct analysis of the jurisprudential principles can be the solution and response to many challenges, conflicts and questions in this field. This study uses a jurisprudential analysis from the perspective of evidence to prove the need to maintain the place of memories in urban communities.

One of the problems that cities of the world today face, especially large cities, is high-rise construction. High-rise construction, as a set of advantages and disadvantages, has proponents and opponents with various and sometimes corresponding arguments. A review of these advantages and disadvantages also provides a comprehensive view of the jurisprudential study of this issue. The main question of the present article is “what is the primary ruling of high-rise construction in an Islamic city.” To answer this question, the opinion of Āyatollāh Moḥsin Arākī will be examined and criticized. From the jurisprudential arguments including the maxim of Lā Ḍirār (“do not inflict injury”), the following five basic rules can be mentioned: the necessity of human use, the proportionality of the height of the building with the level of religious places, attention to religious identity and aspect, non-destruction of cultural heritage, and attention to the right of tranquillity for high-rise construction. By observing these rules, high-rise construction is jurisprudentially permissible and also preferable if the quality of life is improved and citizenship rights are preserved.

The peaceful coexistence of citizens in an Islamic society can appear in many forms, one of which is the provision of appropriate bicultural opportunities. Facilitating the affairs of religious minorities’ places of worship is one example of this. However, some critics may portray the granting of permission to non-Muslims, in this case, to be incorrect as it relies on socio-cultural influences or the illusion of cultural domination. Therefore, it is necessary to adopt both rational approaches by examining the theoretical contexts of the discussion and to prevent going to extremes by explaining the position of Islamic sharīʾah in this area. By critically examining the jurisprudential opinions and relying on documentary analysis, the present study has considered the Islamic judge in the agreement based on the interests of the Islamic society to have the necessary and sufficient authority in this regard while rejecting the basis of prohibition and its evidence and based on the principle of freedom of thought and action of citizens in Islamic society. This study examines this problem by presenting the approving proofs for this opinion with a permissible approach and solves it. Therefore, this study first rescinds the principle of prohibition (aṣl al-ḥurmat) in this issue by scrutinizing the four main approving proofs of prohibition in each of the hypotheses of construction, maintenance, and restoration through rejecting the evidence, then relying on the two principles of ibāḥah (permissibility( and concomitance of permission to the object with permission of its essential necessities, it considers the recognition of expediency as the main basis in resolving this problem by the Islamic judge in the circle of the freedom of action and the principle of thought.