پژوهشنامه متین
پیاپی 97 (زمستان 1401)

Despite prevalence of jurisprudential discussions on the role of imperative rules in contracts, very little can be found in the works of legal thinkers – and equally – in the verdicts of the judiciary system. Jurists’ inattention to the difference between positive and imperative rules has resulted in many cases in disappearance of boundaries between property law and law of obligations. For instance, some jurists argue that obligation coming from an affirmative condition depends upon occurrence of ownership, also stating that undertaking an obligation in favor of a third party may cause issuance of positive rule of indebtedness. Given the above, the principal question in this study deals with underscoring distinction between imperative and positive rules and the status of either one in the law of obligations. Pinpointing examples of imperative rules in Civil Code with respect to its effects such as dispossession, lack of indebtedness, and lack of inheritance can be effective in interpretation of pertinent laws as well as verdicts of the judiciary system. In this paper, applying a descriptive-analytical method and resorting to library documents, we have tried to review the status of imperative rules in articles related to affirmative condition, interpretation of Article 959 of Civil Code, usurpation, and guarantee of discharging obligations in the light of Imam Khomeini’s opinion. An analysis of imperative rule indicates that first, it belongs to the act of obligee and its subject may be a property or an act, the latter paving the ground for imposition of imperative rule on obligations. Understanding Imam Khomeini’s opinion on this can create an appropriate ground for legalization of customary guarantee based on the guarantee of discharging obligations.

Governmental decree and the authority to issue it has long been the focus of attention of Shia jurists and scholars as reflected in their works. The power of Vali-e-Faqih (Guardian Jurist), as a fully qualified jurist, to issue governmental decree is directly linked to the principle of Vilayat-e Faqih or guardianship of the Islamic jurist. Therefore, given the jurists’ approach toward guardianship of the Islamic jurist, the issue of authority to issue governmental decree will be of broad and narrow interpretations. The importance of discussing such broad and narrow interpretations concerning issuance of governmental decree will be brought to light in dynamicity and accountability towards demands in Islamic society upon requirements of time and place. Whether these rules enjoy only executive status of the primary rules or maximum power of issuance, that according to Imam Khomeini’s opinion, shall be prioritized over primary rules upon expediency, or according to Shahid Sadr, the issuance of these rules is restricted to cases facing absence of Sharia law – that do not prescribe priority over primary rules; also assurance over enforcement of these rules to prevent annulment of their issuance, nature of these rules in maximum authority for issuance of governmental decree, and finally on what basis has this maximum power of issuance been prescribed, are among the key discussions in this paper

Intertextuality is a method of convergence of texts based on interdependent ways in which texts stand in relation to one another, where the meaning of one text is shaped or influenced by its relationship with other texts. In other words, intertextuality refers to taking influence from previous texts to influence the next texts. According to Gerard Genette, in its brief definition, intertextuality is the simultaneous occurrence of two texts in each other. His definition of intertextuality falls into three levels: a very clear level or quotation, less clear level or plagiarism and least clear or implied level or allusion. Allusion implies such concepts as allegory and metaphor, without its hints it is impossible to fully understand a text. This work is a qualitative research work developed through a descriptive-analytical method and based on library documents meant to clarify implied intertextual clarification of the Holy Quran in Imam Khomeini’s poetry. Therefore, we have reviewed those poems by Imam Khomeini that, according to Genette’s classification of intertextuality, they have an implied intertextual relationship with the words of the Holy Book. Findings of the paper indicate a broad-based relationship between Imam Khomeini’s poetry and the verses of the Holy Quran.

The principle of Al-Zati La-Yo’allal (Self-evident essence does not need proof) is one of the important philosophical doctrines which falls into three philosophical rules. This paper intends to review Imam Khomeini’s analysis of this principle with a glance at the lexical connotation of the word Zati. In view of Imam Khomeini “an essence needless of proof”, the core concept of this principle, is an essence coming from logical reasoning rather than accidentality. Indeed, Imam Khomeini is of the opinion that “an essence needless of proof” is a truth inseparable from inherent essence whether it is imbedded in inherent essence (Isagoge essence) or detached but associated with it. Imam Khomeini continues with explaining about why self-evident essence does not need proof, i.e. he argues “an essence needless of proof” through logical reasoning. Therefore, paying attention to his precise opinion on this principle can help answering many philosophical, theological, etc. questions. Apparently, Imam Khomeini has underscored this point that since it is imperative to carry self-evident essences and attributes of essence on essence itself, and because any attribute affixed to its subject is needless of proof, the self-evident essences and attributes of essence do not need proof at all, hence any question on its proof shall be meaningless.

This research is an attempt to study the viewpoints of Shahab al-Din Sohravardi and Imam Khomeini about the issue of the leadership of the Islamic society based on their philosophical and mystical principles (ontology, epistemology, and anthropology). Sohravardi, through combining Islamic mystical and philosophical viewpoints, monarchical philosophical ideas, and the concept of the perfect human being, tries to formulate the most suitable preference for the leadership of an Islamic society. Imam Khomeini, through combining jurisprudential, philosophical, mystical, and theological notions within the framework of the concept of the perfect human being, looks for the most suitable preference for the leadership of an Islamic society. The argument of this paper that due to the fusion of the notion of perfect human being and power, which are respectively two mystical and political concepts, the ideas of the “theologian philosopher”, and, the “rule of jurisprudent” (Vilayt-e Faqih) were respectively formulated by Sohravardi and Imam Khomeini. Comparative-descriptive research method was employed and similarities and differences between the viewpoints of the two thinkers were discussed. The findings of the research indicated that the concept of the ruler of Islamic society was the outcome of the fusion of mystical and political viewpoints of the two thinkers.

Protecting patent rights as principal example of industrial property rights and granting material and spiritual rights to the owner of the invention papers and the history of legislation of the issue in 1921, before ratification of such laws as Civil Code and Trade Law, indicate legal protection of patent rights. However, despite enactment of various domestic laws as well as many international conventions such as Paris Convention for Protection of Industrial Property (1883) and Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) with Islamic Republic of Iran joining some of these conventions, jurisprudential and legal foundations of this right in terms of lack of history of the issue in Islamic Law, as well as novelty of this branch of law – that is among the newly emerged issues according to some jurists – have created different challenges and viewpoints which are sometimes contradictory. This paper first reviews opinions for and against this branch of law, and while readdressing Imam Khomeini’s opinion concerning the subject, analyzes some legal foundations of the issue.