مجله پژوهش های فقهی
سال نوزدهم شماره 2 (تابستان 1402)

Sometimes it is possible that due to some reasons, the heir is prevented from inheriting from the heirs which these are called the obstacles to inheritance. Now, this research seeks to find an answer to this basic question: can the judgment of a murderer who killed his testator and is deprived of inheritance be extended to other similar jurisprudential chapters, such as will? Or if someone kills his excluder to get inheritance or assists in the murder to get inheritance, is he also deprived of inheritance? This article aims at providing a reasoned answer to the above question. To answer this question, using library sources and descriptive-analytical methods, different modes have been considered for the research problem; in the case where the legatee is an heir or not. Assisting in murder and the murder of excluder were also investigated. The opinions of Shi'a and Sunni jurists were examined. Then, by analyzing the opinions and findings of the research, it can be concluded that it is possible to generalize the verdict to other chapters such as the will and the murder of excluder. The reason for its feasibility can be considered as the application of hadiths, the possessing property unlawfully, as well as the abolition of character, custom, Conduct of the Wise, and legislator’s taste. The confirmatory proof for executing the custom of the wise is the application of deprivation in American laws.

Islamic scholars have always disagreed with each other on explaining the conceptual scope of “apostasy” (irtidād) and determining its examples. A glance at the Shi'ite and Sunni exegetical sources shows that the commentators rely on the three bases of “Qur’anic verses”, “narratives” and sometimes “the historical background of apostasy” for explaining their opinions regarding the rulings related to apostasy and the apostate person. Results of this article prove that the conceptual scope of the term “apostasy” in the Holy Quran is more general than its jurisprudential meaning and application. The context and the combination of phrases related to this issue, relying on “conditional restrictions”, has a ruling aspect; Therefore, some exegetes, citing the “applications of reasons of repentance” believe that the repentance of the apostate is totally permissible; regardless of whether the apostasy is natural or national, or whether the apostate is a man or a woman, or whether the “heresy” has occurred with an intention and blasphemous speech, or with an act that requires disbelief. “Apostasy” in the Holy Quran, hadiths and the practice of Imams (AS) does not simply mean returning from religion and changing one’s view, but the apostate is someone who, after consciously accepting the religion, based on stubbornness and enmity with the intention of attacking the religion, denies the “truth” and not accept the divinity of God or the mission of the Prophet of Islam (PBUH). The main origin of the difference in issuing the verdict of “apostasy” is the two factors of “fundamental difference” and “method of inferring from the verses”.

Extinction of religious and legal effects in the form of stipulation is called negative result condition. In the works of precedent faqihs, thus far, there was no explicit mention of this condition, and most of recent faqihs also considered it invalid caused of the opposition to lawgiver verdict except in special cases. This is while most jurists believe in influence and accuracy of this condition. It seems that, since the effects of legal actions are among the inventions of the wise and lawgiver has only given them validity, the diagnosis authority in extinction ability of this actions is the rule of the wise, and they considered that these effects are extinguishable by the owner. In addition, there is a connection between the validity of negative legal positive condition and negative result condition, and since the faqihs considered the first one in correct, they must also consider the second in effect; Of course, it is subject to shouldn't cause the loss of motive of main promise, and it shouldn't be oppose to public order and good behavior. Since the civil law was written under affect by Imamiyah jurisprudence celebrities, can't be presumption from its articles 959, 454, 474, 679 and 120.

Breastfeeding is one of the causes of mahramiyyat (privacy). Utilizing a descriptive - analytical method, the present study endeavors to address the basic issue that to what extent breastfeeding will bring about privacy in Islamic jurisprudence. The author has attempted to make a comparative and critical study of the issue from the standpoints of the Shi'a and the Sunni jurisprudence so as to shed light on the similarities and differences between the Shi'a and the Sunni jurisprudence. The Shi'a jurisprudence addresses breastfeeding privacy in terms of the effect, amount and duration of breastfeeding. The effect signifies the breastfeeding which triggers the growth of flesh and intensification of bones. The duration of breastfeeding denotes one full day during which the infant is not fed on food or other women’s milk any longer. Regarding the amount of milk, there is a difference of opinion among the Shi'a jurists including 1, 10, and 15 times and 15 full days. Nevertheless, the Sunni jurists have different viewpoints in terms of the effect and the amount of breastfeeding. There is no difference of opinion on the effect of breastfeeding between the Shi'a and the Sunni jurists. There are five axioms about the number and frequency of breastfeeding through which Hanafi and Maliki argue that privacy is caused by the mere breastfeeding even in a small amount of milk. Shafi'i and Hanbali consider that privacy is achieved after five-times of breastfeeding. Although, other axioms consider privacy is caused by 3, 4, 7 and 10 times of breastfeeding.

Divorce of a wife by a husband under the threat of death and the effects related to it is considered one of the important and at the same time controversial issues among the jurists of the two main Islamic sects, Shi'a and Sunni. The main question is whether such a divorce is legally permissible and correct? And are there any special conditions governing its authenticity? A sick husband who divorces his wife at risk of death is exposed to the accusation of depriving his wife of her right to inheritance, preferring other heirs, and escaping from the burden of responsibility. For the same reason, Islamic jurists, even though having a feeling of abomination, generally believe that such a divorce is valid and permissible. However, special rules have been legislated in Islam to protect the wife's right to inheritance and the husband's desired conflict. One of the rules is that, if the husband dies due to illness at the time of divorce and the wife does not remarry, contrary to the usual rule, even after the retroactive divorce and even after the final divorce, the Imamiyyah jurists have given her an inheritance up to one lunar year from the time of divorce and the Sunni jurists, except the Shafi'i school, have given her an inheritance without any time limit. The present research uses a comparative method to deal with the fundamental questions of the Islamic denominations concerning fundamental issues and statements of the jurists of the two main Islamic sects with the aim of finding a well-reasoned and acceptable answer.

The increasing progress of states in the military field and their desire to produce and proliferate new war tools and methods have brought new issues and many challenges to the legal systems. One of these issues and challenges is the proliferation of Autonomous Offensive Weapons. Islam and the legal system derived from it, as one of the legal systems, is the flagship of teachings based on global peace and security. The mission and ideal of the Last Prophet, Muhammad (PBUH) for humanity is the realization of world peace. Considering the comprehensiveness of the Islamic religion, it is not unreasonable and excessive to expect to express and determine the task in the newly created issues. Islamic jurists, referring to jurisprudential sources and jurisprudential principles and rules, derive rulings on new issues. According to the findings of the research, among the four evidences of Islamic jurisprudence, the Holy Quran, traditions and reason, are three sources that declare that the proliferation of autonomous Offensive weapons is prohibited and unlawful. Due to the absence of an explicit text from Islamic jurists, the claim of a consensus reached or conveyed by a single news is not effective in the discussion of the proliferation of autonomous offensive weapons. This article, using a descriptive-analytical approach, intends to investigate the proliferation of autonomous offensive weapons systems through the Islamic legal system in the Islamic international humanitarian law.