نشریه دین و قانون
سال سوم شماره 10 (زمستان 1394)

Being family-oriented”, a legal requirement for lawmaking, executive, and judiciary systems, is an expression which has recently entered the legal literature of the Islamic Republic of Iran. The expression has been used in both private law and public law of the family but with two different implications. Despite the importance of the issue of “being family-oriented”, it has not been attended by the scholars of law, nor has it been explained in the true sense of the word. The present study aims at clarifying some legislative requirements for “being family-oriented” in both private and public law. It also examines family-oriented legislative development process.

Khetabat-e Maqasedi is a very important approach which has been proposed in the field of Shiite fiqh in recent years. Although the experts in the field of Shiite tafaqqoh are cautious in utilizing such an approach, there are some experts who have a tendency toward it; yet, they often do not suggest any adequate reason compatible with Shiite fiqh for employing the approach. The present study is going to take the first steps to present such an adequate reason. The main question of this research is “What role can be assumed for khetabat-e maqasedi in fiqh?” It seems that in spite of the existing prevalent opinion, a big role for khetabat-e maqasedi can be assumed, yet, its entrance to the scope of khetabat-e hokmi can be prevented. As such, the present article defends the idea of evidence-centeredness with a tendency toward maqased. In this ideology which has been supported by some well-known scholars of jurisprudence such as Muoghaddas Ardabili and Ibn-e Idris Helli, khetabat-e hokmi is counted as the pivot of ijtihad on which the issuance of all religious decrees occurs. In case of the existence of the reliable khetabat-e hokmi, faqih never puts the related contexts aside; however, he may consider the purposes (maqased) and the overall interests of the religion, and with regard to the necessity of the human nature and existing conditions, the faqih can deduce a religious decree from khetabat-e hokmi. In the study, the researcher responds Ayatollah Alidoust’s critique against him and also brings his own argumentation to support his views.

With the establishment of the Islamic Republic of Iran, the researchers in public law faced some new types of questions. One of those questions is “Why do citizens have to obey the law?” The dual ‘worldly-religious’ nature of the ruling system of the Islamic Republic of Iran has made such a question even more interesting and challenging. Reviewing the commentary reports of some scholars about the nature of law, the present study attempts at figuring out what type of interpretation the scholars have presented for the nature of law as a binding proposition per se. Can we assume any jurisprudential nature for the law, as what we know about the law that can bring about the law binding? It seems that jurisprudential interpretations regarding the nature of law are all incapable of establishing such a relationship. The non-jurisprudential interpretations of Iranian scholars regarding the nature of law are either attached to the issue of the social contract or to the happiness. Seemingly, from among them, the social contract has ever remained to be the most efficient interpretation of the nature of the law. If fuqaha hold that the law enjoys a jurisprudential nature, and thus it is binding for everybody regardless of being a Muslim or non-Muslim, then they should present a new interpretation [model] which does not possess the problems commomn with all previous interpretations.

The documentary credit is the most prevalent methods of paying the costs of goods in international trade wherein the payment is done through financial intermediary of the seller’s bank and the buyer. The documenary credit includes three pillars:  applicant, issuing /opening bank, and the beneficiary. The present research aims at studying the roles and commitments of the issuing bank as one of the pillars of credit. Taking features and conditions of the documentary credits into consideration, the contract made is a type of contract whose conclusion is subject to the satisfaction of the three parties, that is, the applicant, the beneficiary, and the issuing bank. However, conclusion of the contract is upon the request of the applicant and the acceptance of the bank issuing the credit. Opening [a letter of] credit, taking deposit from the applicant, examining documentary with regard to the credit, issuing the credit in the beneficiary’s favor, paying the credit  benefit,  and delievering the documents to the applicant and full payment to him upon presentation of the correct documents, all are some of the responsibilities of the issuing bank.Taking these issues into closer consideration, one can obviously see that such committments are not in harmony with the duties of  the offeror /agent in ju’alah . Nonetheless, based on the validity of contracts’ principle and the autonomy of the will, the issuing bank, through a contract, can oblige itself to shoulder some responsibilities whose burden can not be unshouldered since it violates the principle of contract enforcement.

Assassination and terrorism are of the phenomenons which have been these days attended to by goverments and different social currents and political parties on one hand, and mass media, news and information technology networks on the other. The issue has been abused, espaecially in the recent decades, to the extent that Islam has been accused of supporting assassination and terrorism, and Muslims are unfairly introduced as terrorists. Therefore, to defend Islam against its enemies’ propaganda, there exists a dire need for a thourough jurisprudential review of assassination and terrorism and their concepts from the viewpoint of Islam. As such, in the first place, the present research studies the concept of terrorism in the old and new literatue of the Arab’s Philology and morphology, and then, it analyzes the jurisprudential concepts of some related isssues such as moharebe[1], fatk[2], eghtiyal[3], and erhab[4].

Nuclear weapon, the most advanced military equipment of the century, is the most powerful weapon in destructing the foundation of human, animal, and plant life, causing a wide and deep annihilation where the explosion takes place.  The production or stockpile of the nuclear weapons, whether with intent to use them or threat and deter the enemies, is one of the controversial issues which has been focused by many thinkers and scholars in recent years. The viewpoints of Islam about the production of such weapons can be educed from the textual and rational reasons. The interpretation that nuclear weapons are effectively important from a security as well as a strategic point of view is the main cause of the claimants for issuing the production license of nuclear weapons. Sometimes the proponents of the nuclear weapons production support themselves with interpreting and overgeneralizing some texts from Quran. Discussing both the reasons for permitting or prohibiting the producing or stockpiling the nuclear weapons, and also expurgating and modifying them, the present article aims at clarifying the viewpoints of the legal system of Islam about this contemporary challenging issue.