نشریه دین و قانون
سال هفتم شماره 23 (بهار 1398)

Due to the government's actions, damage may be done to others, however, the first question that arises is whether the damages can be compensated, and the second one is that if the damages are to be compensated, who is responsible for compensating them? The principle of compensation is an issue accepted in the Islamic legal system and it is the responsibility of the person who has a conventional causation relationship between the damage caused and the act, and this responsibility includes the government administration and the exercise of sovereignty as well. Therefore, the compensation, if it is entirely caused by the employee's fault, will be borne by the employee, and if it is entirely due to an administrative error, it is up to the government to compensate it. But if the damage is due to an administrative error and a personal error, the issue of multiplicity of causes arises. If one of these two causes prevails over the other, the predominant cause is responsible and if none prevails and if the cause of their impact is simultaneous and together in the side, both sides are responsible. But if the effect of the causes is longitudinal, then the causal relationship is dominant between them and the one who has caused the damage is responsible

Some large areas of Iranian lands are Mawat lands[1] which are of great economic value. In accordance with traditional fiqh and taking some hadith and narration-based arguments such as «من احیا ارضا مواتا(میته) فهی له»[2] as a maxim, anyone can make mawat lands his own as much as he wants provided that he restores them. Regardless of social requirements and the necessities of distributive and equity justice, this approach is a capitalist approach that allows the wealthy to distribute their real estate to the desired extent, and in fact to deprive other social classes of the God-given blessing of the earth and its products. Because of the misuse of this traditional fiqhi approach by some rich people, some Imamiyyah foqaha especially the recent ones applied narration-based arguments with some purposes such as justice and equity and arguments such as the right of all people on ownership in land revitalization arguments. With the approval of the Bill of Allotment and Restoration of Lands Approved by Council of the Islamic Revolution, three elements of the need of the revitalizing person in restoring mawat lands, and his abilities and facilities in restoring the lands, and the expediency of the society in distributing lands among all citizens were considered as restrictive boundaries on the restoration of mawat lands.

The condition of guaranteeing profit in Mudaraba (commandite) contract and company is one of the conditions that banks and credit institutions today have resorted to in order to earn profit in the form of facilities and try to display these conditions as Islamic in any way. This is while in the substantive laws in Article 558 and Article 575 of the Civil Law, it is explicitly stated that the nature of these conditions are not according to the requirements of the substance of the contract. In this regard, jurisprudence has a clearer expression than the law, and with the difference between Shiites and Hanafis in this field, the researchers have done this study to find correct opinion and reality. Article 575 of the Civil Code proposes the condition of higher profit in return for an action as an exception to the nature of partnership, which according to the jurisprudential assertions in Shia and Hanafi, such an exception is not accepted, and the condition of higher profit in exchange for more guarantee is proposed. In the case of mudaraba, it is also a condition of the guarantee sought by the legislator, which has led to misconceptions about Article 558 of the Civil Code among jurists, and the last part of the above-mentioned article is contrary to certain jurisprudential rules. Therefore, Shi'ah and Hanafi jurisprudence and Hanafi law (Articles 1426-1428 of Majallah al-Ahkam al-Adliyyah[1]) in thisregard are deeper and closer to justice, while unfortunately the Iranian legislature has not acted in this regard, and thus the modification of the above materials is absolutely necessary.

Lawat[1] is a term used to describe a man's wicked sexual intercourse with another man and the making love of the two with each other. It is one of the cardinal sins in Islam that has been cited in Islamic narration and hadith references as a corrupting element of the generation and the society. Due to the high immoral nature of the mentioned act, Islamic law has considered a severe punishment for it; however, there is a difference of opinion among the Islamic foqaha in punishing the doer {the person who screws} and the other doer {the person who is screwed, i.e., the one on whom the action is done} in lawat. While one view considers the punishment of both to be the same, the other view considers the punishment of the first to be different from that of the latter. The Article 234 of the Islamic Penal Code of Iran follows the second view. There is also a difference of opinion in punishing tafkhiz[2]; yet, finally the Article 236 of the Islamic Penal Code of the Islamic Republic of Iran considers the punishment of tafkhiz for the two mentioned doers the same and that is receiving one hundred lashes. The present study evaluates different views and arguments in the punishment of lawat and tafkhiz, and based on Islamic narrations (examining the narrations and hadiths from the viewpoint of their documentation and authenticity ), and the Islamic principles accepts the difference between the punishment of the two doers in lawat and accepts the same punishment of one hundred lashes in the punishment of tafkhiz for the two doers.

The rule of "التعزیر لکل عمل محرم." [1] is one of the most widely used rules of fiqh (Islamic jurisprudence). According to the text of this jurisprudential rule, the religious judge is authorized to execute ta’zir (discretionary punishment) for any wrong action or any wrongdoer. However, the interpretation of Imamiyyah foqaha (Shia jurists) from this rule is not the same. Some of these foqaha have considered any forbidden act to be punishable, while some others have considered only the cardinal or major sins to be punishable. There exists also another group of foqaha who have made the punishment of ta'zir conditional on the sinner’s or wrongdoer’s doing or not doing the forbidden act through prohibition, reprimand, and preaching. In addition to these three groups of foqaha, some believe that ta’zir for committing a sin or doing a wrong is permissible only when the sinner or wrongdoer violates public order and disrupts the order of affairs in a community. In this study, while examining the various arguments of the above four approaches, it is concluded that in addition to the possibility of finding the link between the mentioned rule from Sunni caliphate fiqh and the rule from Imami school fiqh, despite the capacities assisting the government in recognizing the sins and wrong actions which violates public order, there is basically no need to adhere such a rule of thumb, and relying on the exegesis from such a rule will not be practically of any benefit.

The design of successful mechanisms in Islamic socio-economic institutions depends on clarifying the system governing Islamic contracts. Asking the help of fiqh, the present article seeks to respond to this prerequisite for policy-making with the assistance of jurisprudence. According to the findings of the study, the realization of dynamism in the creation and amalgamation of contracts, in accordance with Islamic goals, depends on having a clear picture of the structure and network that governs contracts. To meet the mentioned prerequisite and as a preliminary proposal, three images can be proposed for the contracts’ network: 1. the network as a tree, 2. the network as a core circle along with attaching circles surrounding it, and 3. the network as a group of points with interconnections. These three images provide a thobouti[1] image of the contract network. The ithbati[2] image of the contract network which is at the same time accessible and can be realized on the basis of religious proof, sees contracts as particles around the target magnetic field. These contracts are the result and output of a table that shows a comprehensive system for the division of contracts.