مجله فقه مقارن
پیاپی 17 (بهار و تابستان 1400)

The progress and development of human society causes new needs, especially in the field of social issues, the need to meet them while maintaining the purposes of Sharia is accepted by the Sharia, if the expediency is approved. The present study is aimed at answering the basic question that: What is the place of public expediency in the rules of Istislah that result in trans-religious governmental jurisprudence? Research findings show that the expansion of human society requires dealing with emerging issues that are based on the public expediency. Therefore, applying systematic Istislah under the authority of the spirit of Sharia is legal and rational and thus this kind of application of Istislah is from the presumptions of Sunnah or rationality that gives the social rulings based on public expediency a trans-religious character, so although Istislah is an unspecified resource, it is a mechanism generally governed by Sharia. Therefore, some Imami jurisprudents in subjects such as insurance, hoarding and intellectual ownership, and the legislator in  issues like public expediency and emerging legal issues that have a governmental aspect, relying on the public expediency, use Istislah in the form of tradition or reason.

Tact of the Guardian Jurist is one of the requirements of the Islamic system, which is issued by the guardian due to emerging issues. The orders and commands issued by the guardian are called “Governmental Rules”. Tact of the Guardian Jurist goes so far that his ruling sometimes leads to change, conversion and even termination of a rule. The present study concluded that the scope of the tact of the guardian jurist from the perspective of jurists of Islamic denominations is wide in proportion to new issues. It should be noted that the ruler and the Islamic government usually issue relatively general and comprehensive rulings to manage the affairs of the society. The issuance and drafting of these rulings are usually accompanied by the titles of legislation or lawmaking. Therefore, the discussion of the right to compose and issue general laws or rulings by the guardian of the Islamic government is the basis for a correct understanding of the relationship between these rulings and the issue of religious legislation. It is necessary to reflect on the various aspects of the Islamic ruling in this sense: The centrality of “Wilayah” or guardianship in the Shiite doctrinal foundations can be considered as the main difference of the Islamic denominations “Shiite jurisprudence and Sunni jurisprudence”.

Following the Islamic Revolution and the establishment of the Islamic System in Iran, a new and vast theorization movement was formed for the purpose of defining security in face of new challenges and in line with the execution of Article 4 of the constitution requiring the compliance of all laws with the Islamic jurisprudence in Iran. One of the Religion-based crimes which was introduced in the statutory Military Criminal Code of Iran is Muharibah or those acts considered or being equivalent to Muharibah without any legal criminalization background in this country. Although this offense is an example of Islamic crimes and deserves to be governed by special criminal approaches particularly as a result of its independent religious bases in the public security and the governmental security realms, the governmental domestic security crimes gradually blend with the security offences against people.  Even, under the category of crimes violating domestic and foreign security committed by the armed forces, the said offence was defined for the acts not similar to Muharibah but related to the Baghy (Crime against the security of the Islamic Government). As the concept of Baghy is beyond the jurisprudential scope and its confabulation with Muharibah, this study aims at explaining the nature and conceptualization of this offense and the crime elements, providing a useful scientific finding to make appropriate criminal policy for punishing those committing crimes against the domestic and foreign security of the government.

Adultery (zina) and sodomy (lawat), as the reason of musahirat, may cause prohibition of Islamic matrimony. In this research, the sayings of the jurisprudents of the Five Islamic Schools concerning the effect of adultery and sodomy on the prohibition of the marriage are studied in a descriptive-analytical and comparative method. There is a consensus among the Five Islamic Schools about the fact that adultery subsequent the lawful marriage causes no prohibition of the marriage of man and wife, since «الحرام لایفسد الحلال» meaning an unlawful act does not make a preceding permitted act unlawful, while there is no consensus about the adultery preceding the lawful marriage. Some Imami jurists, and Hanafi and Hanbali jurists believe that there is prohibition in this case. Some other Imami jurists, and Maliki and Shafi‘i jurists consider the marriage of adulterer to adulteress’ mother or sister permitted. Studying the sayings and evidences of the parties show that the second idea is rejected. According to the sayings of Imami jurists concerning sodomy, the sodomite is not permitted to marry mother, sister and daughter of the sodomized, but the sodomized person is permitted to marry mother, sister and daughter of the sodomite. Hanbalis consider sodomy like adultery in this case and believe in prohibition of marriage due to sodomy. Other jurists believe that sodomy causes no prohibition.

Digital currency is a new term that requires careful study in all aspects especially from the perspective of Islamic jurisprudence. Digital currency is a virtual currency that can be used to transfer large amounts of money internationally and in a shorter period of time than banking transactions. The place of transactions with these currencies is the Internet and it is done without the need for formalities and approval of governments, because basically the purpose of creating these currencies is making transactions without government supervision and intervention. In this article, we seek to answer these questions: “What is the nature of digital currency?” and “What effects does it have on cyberspace transactions from a jurisprudential point of view?” We came to the conclusion that some Shia and Sunni jurists have commented as in favor and others as opposed. Proponents have cited to principles such as the Principle of Authenticity (Sihha) and the Principle of Permissibility (Ibaha). Digital currencies have a financial value and are considered money. The approval or disapproval of governments does not affect the monetary identity of these currencies. Digital currencies have undeniable advantages that the evolution of their structure and the way of using them, can lead to the legal legitimacy of using them. Otherwise, the Rule of Prohibition of Detriment (La Dharar) and the Rule of Denying the Domination of Unbelievers over Believers (Nafy Sabil) surpasses the other proposed jurisprudential rules about the digital currencies and stand against their legitimacy and finally it turns their legitimacy into illegitimacy.

Turning the Long-Term Debt (Dayn Mu’ajjal) to Current Debt or Due Debt (Dayn Hal) is one of the important jurisprudential and legal issues that can be cited as several examples, including; the debt of the deceased, the debt of the guarantors and the debt of the bankrupt businessman. This article has a comparative study of the effect of the bankruptcy on the Current Debts or Due Debts of a bankrupt trading company from the perspective of the Imamis and Hanafis and the Commercial Codes of Iran and Afghanistan. The results of this study showed that there is disagreement between jurisprudents and lawyers about the Current Debts or Due Debts of a bankrupt businessman. According to the Commercial Codes of Iran and Afghanistan, with the issuance of a bankruptcy by the competent court, the debts of the bankrupt trading company will be turned into current debts. However, well-known Imami and Hanafi jurists oppose turning the debts of the bankrupt to current debts and consider it contrary to jurisprudential standards. By examining the arguments of those who agree and those who disagree, the author believes that turning the debts of a bankrupt businessman and corporation to current debts is appropriate to the rule of justice and equality and is more consistent with the realities of life today and the way of business.

The Pre-emption Right is a financial right and one of the characteristics of a financial right is the ability to transfer this right. However, in preemption, the situation is a little different, because most jurisprudents and lawyers, due to the specific nature of the preemption right and referring to the basis of legislating the preemption right, which is avoidance of detriment, consider it non-transferable voluntarily. The present study shows that the study of the voluntary transferability ability of the preemption right, on one hand, requires the interpretation of avoidance of detriment as the basis of the preemption right; Because depending on interpretation of avoidance of detriment as avoidance of partnership or avoidance of a new partner, it will not be ineffective in its transferability; and on the other hand, requires examining whether the preemption right is for or against the Rule of Ownership and the Rule of Prohibition of Detriment (La Dharar). The approach of the present study is that accepting the Preemption as a right, which is considered a common point with Option, leads to support the rule of domination (Taslit) and accepting the theory of voluntary transferability of the preemption right, and on the other hand, paying attention to the basis of the preemption right, i.e., avoidance of detriment as avoidance of a new partner, reinforces the above-mentioned view.

The law of contracts is the law of expectations; expectations which are the content of the secondary confirmation of the two parties to the contract, as interpreted by Usuli scholars. These expectations have different dimensions. One dimension is concerned with the location of fulfillment of the contract obligations. The question is how the parties’ expectations about the location of fulfillment of obligations can be met. Undoubtedly, if the location is determined by the two parties and assuming that recognizing the location of fulfillment of obligations is not problematic according to the tradition, the judge shall have no problem in interpretation of the contract. The problem appears when the judge cannot determine the location by discovering the intention of the two parties or cannot determine the exact position in the tradition. In the latter case, which has been less comparatively examined, as is concern of the present study, there is no agreement between the religious scholars and the lawyers. The well-known Imami religious scholars and Iranian lawyers consider the place of execution of the contract as the location of contract while the religious scholars of the four Sunni religious sects consider the status of bought/sold goods and the place of their submission as the location of the contract. Egyptian lawyers believe that if the issue of obligation is specific by nature, the location of fulfillment of obligations, when there is no agreement or any other rule, must be the same place in which the subject of the contract is available to be delivered on the due date. In other obligations, location of fulfillment of obligations is the place of residence of the obligated party when fulfilling his/her commitment. When the obligation is concerned with a business, the center of operation is the obligated party. It seems that in determining the location of execution of a contract, the intended place is of priority and in the case of doubts about the additional obligations, the principle of innocence (Bira’at) shall prevail.

Sharia rules are characterized by their purposes, as verses and narrations have been laid out for religious Hijab and chastity-related purposes. A review of these purposes could greatly contribute to the correct impression of the minimal Hijab theory. This article uses a descriptive-analytical approach to utilize verses, narrations, and Imami scholars’ views to investigate the concept of Hijab in the Quranic culture and lexicology. It seeks to explain the minimal Hijab theory and its reasons to answer the Purposes of Sharia of Hijab and to analyze its quality in consistency with the six purposes laid out by the Sharia within the framework of Hijab. The six cases include protecting the human life from heat and cold, preserving the generation and the family and community context, preventing corruption and fitna, achieving piety and purification of hearts, completing aesthetics of human creation and preventing harassment, and helping women participate in the society. Thus, the reasons raised by the minimal Hijab theory proponents are incomplete and Purposes of Sharia within the framework of Hijab and chastity contradict the minimal Hijab theory.

In Islamic Sharia, the rule of conflict between principal and prima facie is of high importance. An application of this rule is in trials. Based on the rule of “burden of proof rests upon claimant, and the oath upon who denies”, the burden of proof thus rests on the plaintiff. One of the criteria to distinguish between the claimant and the denier is through paying attention to the principal and prima facie. A claimant is one whose word is against the principal and prima facie. In presumptions where the principal is expressive of a topic and the prima facie is indicative of a topic against the former, the conflict between principal and prima facie arises. If the prima facie is one of the famous proofs of Islamic law and a circumstance passed by the legislator such as a tradition with a single narrator, testimony, confession and the like, there is no doubt about the priority of the prima facie over the principal; however, if the prima facie is derived from indications, customs, preponderance and prevalence and the like, there will be disagreement among jurisprudents as to whether the prima facie takes priority or the principal. Based on the aspect of certainty or the preference in all sheer probabilities (without any evidence) and apparent meanings relying on unfounded causes which are of doubtful validity, the principal is given priority over the prima facie. Even if the principal is in conflict with a probability with weak evidence, it takes priority over the prima facie again. In addition to the cases mentioned above, when both sides of a dispute are regarded as equal by a mujtahid, opinions and views will differ sometimes among different denominations and sometimes among scholars of one denomination on the priority of the principal or prima facie.

Testimony is one of the most important proofs for substantiating an argument to the extent that is considered as a collective obligation. This is because the court judgment is issued on the basis of witness remarks which might have various consequences. If the witness denies his remarks or his remarks are proved to be false, the losses of the one suffering from his witness should be covered. The rules and regulations governing civil liability have provided a good ground for covering these losses. The present study, owing to the importance of comparative jurisprudence which improves the relationships of Islamic denominations and modifies biased prejudices, investigates the factors affecting civil liabilities of witnesses and the similarities and differences between Imami and Hanafi jurisprudence in this regard. The verdicts of jurisprudents of denominations in many issues are similar, such as preserving the verdicts issued by court after withdrawing the testimony by the witness in financial affairs. There are some slight differences between Imami and Hanafi jurisprudence in terms of the lack of responsibility of the witness in Hanafi jurisprudence and the responsibility of the witness in Imami jurisprudence as well as the lack of responsibility of witness in the case of withdrawing the testimony before the court issues a verdict in Shiite jurisprudence and the responsibility of the witness in this case in Hanafi jurisprudence.

The subject of this article is the study of the evidences of jurists who believe that the mere conjecture is sufficient to verify and prove the justice of witnesses. In fact, the main issue of the research is to examine the reasons for the absolute adequacy of conjecture about justice of the witness due to the lack of manifestation of his immorality. According to this view, the criteria for justice is in fact the lack of manifest immorality and being a Muslim. This definition is the opinion of some Imami scholars, and some Sunni jurists, including the Hanafis, as well as some Maliki jurists, have such a view. According to this group, the principle is that people are in a state of mental and moral health and have the criteria of justice, and immorality is a temporary condition and its proof needs evidence, and as soon as a person is a Muslim and no immorality appears in him, he is characterized by the attribute of justice, and in court, if the judge does not suspect the witness of immorality, it is sufficient for the judge to verify his justice. With these descriptions, a just person will not be rare, and it will be easy to verify the criteria of justice. Therefore, the result of this research, which has been conducted through a descriptive-analytical method, is that although justice is an innate attribute, but in reality, it is necessary to verify the morality of people and the good appearance and the lack of manifest immorality or conjectural verification of justice are the criteria for justice.