پژوهش نامه فقه اجتماعی
پیاپی 20 (بهار و تابستان 1401)

Land is a divine blessing needed by the new and future generations, but today it has encountered a form of corruption called land grabbing characterized by illegal encroaching and changing its use to one’s own benefit. According to fiqh, land and its ownership is subject to special rules. The question is whether it is possible to assume ownership of some land by disregarding legal and sharia conditions? What are fiqh rules of possessing lands out of limitations set by Islamic sharia? The results of the study show that this type of possession signified the fiqh edict about consuming property falsely. Hence there is no right imaginable for the illegitimate land grabbing and this ownership is null and void.

Contract provisions are among useful techniques for dealing with jurisprudential and legal problems in modern banking contracts and alike. According to imamiah jurisprudence, provisions are effective only when they have the necessary qualities one of which is the absence of repugnant condition. The controversial point among mujtahids (Islamic jurisprudents) is how to explain the contract requirements and their effect on the validity and invalidity of contracts. The present study aims at clarifying contract requirements so that the researchers do not restrict them to generally accepted ones but could look on their wider scope and consequences that are different from the accepted types.

According to the unanimous opinion of the jurists of the Islamic schools of thought, especially the jurists of the twelvers, the scope of inference of jurisprudence ordinances includes all the events, both newly emerged and newly not emerged; In the sense that canon laws has issued an order for all human actions and behaviors. However, some jurists and a number of modern religious thinkers have doubted the validity of the above article and have sometimes opposed it. Since the dominant view in the jurisprudential tradition is an inclusivist view, the opponents - especially its jurists - have only addressed the main issue and have not been able to approach the issues with a non-inclusivist view; Therefore, the effects of these theories have not been examined in general. The current research tries to use the analytical descriptive method to examine some of the most important works of non-inclusivist theories regarding the scope of ordinances of the law in the two fields of principles and jurisprudence. The results of these surveys indicate that some of the most important jurisprudential and principled theories will face a serious challenge based on non-inclusivist theories.

The political issue has undergone fundamental evolution from the third century till now in Shia’s jurisprudential history. The article has focused on this using qualitative documentary method based on tracing the process inspired by the related literature. The results show that Shia’s jurisprudence has gone through four different periods, the first being private jurisprudence that, due to the start of Imam Mahdi’s Occultation period , it has given due attention to the nature of government. The second period is mingled with monarchy having as one of its indexes the distinction between “sharia-based issue” and “secular issue”. The third period includes the Constitutional Movement era that was concerned about establishing a semi- sharia-based type of government after the Occultation. The fourth refers to the Islamic Republic of Iran era in which the preliminary steps for establishing Islamic government under the auspices of a qualified mujtahid have been taken and the political jurisprudence steps onto the stage of organizing a system. In general, with the expansion of political issue, the Shia’s jurisprudential domain has undergone some evolution and its related concepts and assumptions have moved from individual fiqh (Islamic jurisprudence) to the practical and systematic one.

Dissolution of marriage has legal and jurisprudential effects that are mentioned in their place. But the basic question in this regard is that should these rules be considered as part of the set of mandatory rules or should they be mentioned as supplementary rules? If these rules are mandatory, it is not possible to agree against them, and otherwise, it is possible to agree against them. The findings of the research indicate that in order to determine the possibility of agreement or non-agreement regarding the financial effects of the decline of marriage, one should pay attention to the aspect of the effects being right or ruling; If we consider these works to be right, according to the nature of revocability and the principle of voluntarism, it is possible to agree against the legal and jurisprudential effects of the subject. But if we consider the financial effects of dissolution of marriage as a ruling, we cannot agree against them. On the other hand, one of the characteristics of financial rights is the possibility of its revocation. Matters such as dowry, gifts and alimony are negotiable in viduity period of a revocable divorce or death, according to the principle of voluntarism and absolute legal power of the owner to exercise dominion or control over property. Men and women can agree on its amount and nature or even cancel it. But regarding the rules governing inheritance, it should be said that in the event of a marriage breakdown due to the death of the spouses or Li’an, since these rules are mandatory, it is impossible to agree against them, and the agreement against them is ineffective.

By government we mean a political system that deals with how to impose rule and wield the political power and since it also refers to managing people’s relation with the government, designing a legitimate and rightful model of wielding power is one of the major concerns both in theory and practice. Based on this, the research question is what model can govern the Islamic system and what the consequences from a jurisprudential point of view could be. The research method is content analysis and tries to seek an answer to the question. It is shown that the Islamic government is a divine trust and is characterized by piety, justice, trustfulness among the rulers and their responsiveness to the people, the necessity of safeguarding the system and people’s votes if the Islamic government is to be sustained.

Committing a crime by legal persons can have many times more harmful effects than natural persons. The credit nature of legal persons and their distinction from natural persons from the point of view of various elements of criminal liability was considered an obstacle to assigning criminal liability to legal persons; But the need to maintain order and social cohesion made it inevitable to identify criminal liability for legal persons. To solve the problem of the obstacles of assigning criminal liability to legal persons, different legal systems, including the legal system of Iran, have adopted different solutions by accepting different theories. Based on this, with the descriptive-analytical method and using library resources, in the first part of the research, the analysis of the manifestation of theories of assigning criminal liability to legal persons, including theories of proxy, equality, responsibility of superiors and employers, collective, organizational culture and power and acceptance , has been discussed in the criminal law system of Iran and it is concluded that in the legal system of Iran, there are manifestations of the theories of equality, responsibility of superiors and employers, and organizational culture. Based on this, it becomes clear that although the acceptance of several theories according to the types of legal persons is not considered a defect; However, lack of coherence and lack of determination of specific theoretical bases for assigning criminal liability to legal persons will have adverse effects. One of the reasons for the inconsistency of Iran's criminal laws regarding the topic of discussion can be considered the development of twelvers jurists' opinions regarding the identification of juristic personality and the attribution of criminal liability to him. In the second part of the research, the analysis of the clear bases for assigning criminal liability to legal persons is done and it is concluded that the jurisprudence rules of preserving the system, no harm, the one who is satisfied with the work of a people is like the one who enters into them and the punishment for every forbidden act, are not only a fine for natural persons and the emergence of legal persons over time will also subject them to these rules.

One of the conditions that there is a difference of opinion regarding its nature is that the payment of the performance bond is conditional on terms such as regretting or withdrawing from the contract. As stipulated in the contract, "If each of the parties regrets, he must pay a certain amount of damages to the other party". Such expressions are misleading and create the impression that its essence is "an option of an indefinite condition". However, you can get rid of this wrong idea. Because, what What shows the will of the parties is that "guarantee of faithfulness to the promise of the other party" which is known as "a condition with the purpose of strengthening transactions" in our judicial practice. Of course, a condition under the title "condition with the purpose of strength" is not included in the contracts, but in the analysis of the conditions contained in the contract, it can be said that a distinction should be made between the nature of the contractual condition and its purpose. The results of this article indicate that in this context, it is possible to take advantage of the capacity of unanimity votes issued by the Supreme Court of the country or to amend Article 401 of the Civil Code.

While public opinion is not satisfied with differentiating between premeditated murder and euthanasia, and in regard to its being rationally contradictory as well, one should employ the imamiah jurisprudential potentials and Islamic Penal Law in order to obtain a scientific and sharia- based conclusion in one’s jurisprudential and medical rights research. Despite the absence of its precedence in Islamic jurisprudence, euthanasia can be investigated in areas dealing with the necessity of rescuing the drowning persons or ordering and abhorring murders on the issue of qisas (Islamic retribution) and the results can be attributed to the case in question. In jurisprudential arguments, consent and order to murder are under scrutiny with subsequent controversial opinions. Euthanasia, having root in the individual’s consent, falls under none of the legal exceptions and is an example of intentional murder, unless it falls within the scope of Act 268 of Islamic Penal Law that refers to exceptions.

The inadequacy of the conventional methods in criminal justice with the focus on punishing or reforming the criminal, which is associated with the imposition of high costs, as well as the inability of criminal justice to repair the material and moral damages to the victim and the society, has provided the ground for the expansion of the restorative justice approach. Nomadic settlement methods are one of the old manifestations of restorative justice, which speaks of the capacities of ethnic and tribal culture to restore relationships damaged by crime and compensate the victims. One of the influential components in the acceptance and stabilization of restorative methods in Iran's legal system is the coordination of these methods with religious instructions. Dedicating a chapter of Seyyed Mohammad Saeed Hakim's explanatory text on the questions of religious injunctions from contemporary imitation sources to the jurisprudential rules of nomadic settlement provides the possibility of examining the jurisprudential approach to restorative justice methods, which is the subject of this article. The separation of nomadic settlement from judgment, the principle of consent, the necessity of not contradicting religious instructions, the necessity of respecting the rights of the victim and the right holders, and using the capacities of settlement of disputes through arbitration are the main points of the jurisprudential approach to nomadic settlement. It seems that usages of the wise can be considered as the basis for the use of nomadic settlements, which of course, like other cases, can be accompanied by change.

The sale of military weapons to foreigners, which is considered in jurisprudence as the sale of weapons to the enemies of religion, has been the focus of jurists since the beginning of the formation of jurisprudence. Regarding its permissibility or non-permissibility, some have attributed up to eight opinions to the twelvers jurists, of which three are the most important. A group that believes in absolute sanctity has issued a fatwa, a group has distinguished between a state of peace and a state of war, and has ruled that the former is permissible and the latter is sacred. Each of the above two groups have based their views on narrations. And the third point of view is the view that Imam Khomeini had on the issue, and based on his government approach, he considered this issue to be subject to the opinion of the Islamic government, which should take a position based on the general interests of the society, and in cases where the sale of these weapons is expedient, it is permissible to sell them. And in cases where there is corruption involved, selling it is forbidden. Therefore, neither peace nor war is the subject of judgment. On this basis, there is a difference between the jurists regarding the status of the issue, and the more correct view is that this transaction is null and void if it is legally forbidden.

A major issue in seeking justice is people’s duty of standing against the officials’ corruptions in the Islamic Government discussed in Fiqh books under the category of ‘enjoining what is right and forbidding what is evil’. In regard to the development and complexity of modern governments, this religious duty cannot be effective individually especially as it concerns the corruptions that widely affect the societies. It is therefore incumbent upon the general public to come into action while abiding by sharia. Nowadays, the expansion of virtual and social media could be the best means for achieving the goal and has to be taken into consideration in Islamic societies. Here, after a brief look at the corruption exposure concept, and the sharia decree against corruption that could extend to acts such as backbiting, libeling the believers and propagation of corruption, and the status of the act as an instance of ‘enjoining what is right and forbidding what is evil’, we have reached the conclusion that if fiqh principles are observed carefully, the act of exposure is totally permitted.