مجله فقه مقارن
پیاپی 19 (بهار و تابستان 1401)

In Imamiyyah jurisprudence, for the children who were born illegitimately, there are laws in which reproductive purity is considered a condition for enjoying some social rights and benefits. It may be supposed that the laws related to children of adultery are a form of oppression and discrimination against such children, and the condition of reproductive purity is apparently against divine justice and fairness. In this research, according to the effect of Sharia’s purposes and wisdom in the enactment of Islamic laws, the condition of reproductive purity and the reason for the enactment of this ruling has been looked at from a different perspective, and the conclusion has been made that deprivation of the children of adultery from some rights and their limitation to assume some positions are acceptable; Because the Sharia has the right to prescribe rules according to the interests and corruptions that exist, and this does not mean oppression and discrimination; From the viewpoint of Sharia, the importance of preserving the health of the lineage is one of the purposes of Sharia, and in order to preserve these purposes and prevent such illegitimate relationships, these differences have been considered.

This research, through the use of a descriptive-analytical method, has analyzed the article 365 of the Islamic Penal Code in the following two theories: a) the popular saying that the new penal code was established based on it and accepted the right of pardon from retribution for the victim. b) The unpopular opinion based on which Article 54 of the former Islamic Penal Code was established and considered the right of pardon to belong to the owners of blood. This article has proved the second promise by referring to Quranic, narrative, rational evidences as well as the theory of “consolation of heart”. The aim of the research is to prove that the unpopular theory, that the right to retribution for the owners of blood does not expire with the consent of the victim before his death, and the owners of blood of the deceased can demand retribution or blood money after the death of the victim. The result of this research is the analysis of Article 365 of the new Penal Code, from a criminological point of view and proving that the right of retribution does not expire with the consent of the victim before his death, and the owners of blood of the deceased can demand retribution or blood money after the death of the victim.

The Rule of Prohibition of War is a fundamental principle and an authoritative law in Islam and contemporary international law, based on which, countries are prohibited from waging wars and resorting to force to interfere with each other’s affairs. Consistent with Islamic laws and international law documents, any invasion or resort to force under such headings as preventive measures or defense against an imminent attack is prohibited. The observance of the said principle helps preserve the sovereignty and independence of the countries and establishes international peace and security. In essence, from the Islamic perspective and international law, reducing the consequences of war and its impacts are positive measures aimed at eliminating wars; however, since this is impossible, attempts are made to limit the outcomes of the wars. These measures include determining rules and regulations as humanitarian laws, which the parties should observe during armed conflicts or defense. This issue has also been set out in international documents, conventions and resolutions. Following the Islamic Revolution, the legislator, citing the Islamic jurisprudence and international law, has envisaged any unauthorized or unpermitted invasion or military action without counter-measures or following the order of cessation against military forces or nationals who are not in conflict with Iran to be arbitrary as outlined in Articles 34 and 35 of the Criminal Code of the Armed Forces, setting out heavy punishment for the commanders. These laws have problems, and they need to be modified. This research also expressed theoretical basics of Islam and international laws to ask:  Have the Iranian military laws paid attention to this? Furthermore, can they affect international peace? Here, the author uses an explanatory and analytical method to enumerate the advantages and disadvantages of this issue and uses a descriptive-analytical method via library sources to gather data.

There are many differences of opinion in Hanafi jurisprudence regarding the legitimacy of the conditional sale. There are at least three theories about this: Legitimacy of conditional sale as a mortgage contract. Invalidity of that due to the inclusion of a condition contrary to the nature of the contract. Nullity of conditional sale due to the conformity of its reality with a usurious loan. The last theory has affected to the nullity of the conditional sale in the civil law of Egypt, Jordan and Syria. With influence from the first theory, the Iraqi and Algerian civil law has legislated the conditional sale as a mortgage. In Imami jurisprudence, by referring to the general evidence of transactions and also to specific traditions, the legitimacy of that has been proved by analyzing its nature as a conditional sale contract. In this article, the arguments of those who claim invalidity, Nullity, being a compound contract and being a mortgage of conditional sale in Hanafi jurisprudence are criticized. According to the general evidence of transactions such as “Keep your promises”, “Your transactions should be based on agreement”, “God has made the sale lawful” and “Believers must fulfill their terms”, the legitimacy of the conditional sale as a contract of sale has been proved.

Iranian legislator has provided the death penalty for four groups of criminals by enacting Article 45 of the Addendum to the Anti-Narcotics Law. Since the approval of this law, scholars and jurists have criticized this way of criminalizing and determining the heavy death penalty, but less attention has been paid to the analyzes and criticisms from the viewpoint of jurisprudence of Islamic schools of thought. Therefore, it is necessary to investigate, analyze and criticize the jurisprudential foundations of Article 45 of the Addendum to the Anti-Narcotics Law with an emphasis on comparative jurisprudence. Based on this, the findings of the current research are that the jurisprudential evidences and foundations do not support the exclusive determination of the death penalty stipulated in Article 45, but the examination and analysis of the jurisprudential foundations and evidences yield other results. The method of this research is descriptive-analytical using library resources.

Insulting the sanctities of religions and denominations under the guise of freedom of speech is a threat to the peace and security of the world, and according to some documents of the International Charter of Human Rights, it is prohibited and is an example of violation of human rights; However, the Western countries have a dual policy about this issue. France, which considers itself the cradle of freedom and human rights, has different positions in similar situations. Respecting the sanctities and preserving the sacred concepts, expands the communications and strengthens the peaceful coexistence of the followers of different religions. Islam condemns the insult to its sanctities, and emphasizes not to insult the sanctities of others. A practical commitment to the declaration and human rights treaties in the world - especially in Denmark, France, etc., with the aim of creating religious and denominational division, insults are made towards the holy Prophet of Islam (SAW) - and to eliminate the legal loopholes of this crime in the country, is necessary more than ever. This research, with a descriptive-analytical method, aims to investigate the insult to sacred concepts according to the jurisprudence of Islamic religions, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Insulting sacred concepts is punishable from the viewpoint of Islamic denominations and Iranian legal system and is also prohibited in human rights.

Committing a crime in public as one of the qualities of intensifying the punishment in Islamic jurisprudence and criminal law has faced many opinions. Therefore, in this article, with a comparative approach and using the descriptive-analytical method, the jurisprudential-legal criteria of intensifying the punishment of crimes in public has been examined, emphasizing the positive and negative statements in a descriptive form among the jurisprudential-narrative texts, and also based on the objective quality from specific aspects and the multiplicity of crimes from general aspects, this issue has been investigated in Islamic criminal law. From the point of view of jurisprudence, it is not possible to increase the punishment of the main crime itself, but it is possible to increase it as ta‘dhir due to titles such as desecration and showing immorality. From the legal point of view, increasing the punishment of crimes in public can be justified from the two aspects of multiplicity of behavior and objective aggravating qualities.

Doubt in committing crimes is one of the factors that causes falling of Hadd (Islamic Punishments) from the viewpoint of jurisprudents of Islamic denominations. Cutting the hand of a woman or man who is a thief has been mentioned as the Hadd of theft as one of the divine punishments. According to type and amount of punishment, theft is classified to two types: Thefts which need Ta‘dhir and thefts which need Hadd as punishment. In order to carry out the theft’s Hadd, it is necessary for both thief and the stolen property to have some conditions. One of these conditions is not existing doubt in ownership of the stolen property. Jurisprudents of all Islamic denominations agree that for carrying out the Hadd of theft, there must not be any doubt in ownership of the stolen property for the thief. According to this condition, Hadd is not being applied to father’s theft of his son or daughter’s property and vice versa, Muslim’s theft of treasury (public property) and partner’s theft of common property and these situations do not lead to cutting hand. The reason of jurisprudents of Islamic denominations for not to applying Hadd in these situations is a speech of Prophet Mohammad that has said “Stop applying Hadd in doubts”. From the point of view of Shia jurisprudents, doubt is classified to two types that are jurisprudential opinion doubt and subjective doubt. Also from the point of view of Sunni jurisprudents, doubt is classified to three types: Doubt in the person who committed the theft, doubt in the place, doubt in reason. In this paper, the viewpoints of jurisprudents of Islamic denominations about doubt in theft as one of the factors that causes falling of Hadd punishment has been studied.

Subject of post-matrimonial increase in marriage portion is one of the controversial juristic and legal topics. This subject that is concerned with this point that if such a measure is basically proper and practical or it is exposed to juristic and legal prohibition is a question to which contradictory and different approaches have been proposed as response in the judicial precedent of relevant courts and institutions. The second question that may strike in mind following of the former is that if such an increase has the nature and regulation of the same marriage portion or specific essence and rules will be applicable to it. Difference of opinion and viewpoint is clearly visible between Islamic denominations in Islamic Jurisprudence so that some groups in Shiite jurisprudence believe in lack of absolute permission for such an increase while the minor group argues in favour of this permission. Another group distinguishes among temporary and permanent marriages and has assumed this trend as proper only in temporary marriage. Increase in marriage portion has been accepted in Hanafi, Hanbali and Maliki jurisprudence (Sunnite denominations), but they disputed over nature and rules of this procedure. Shafi‘i jurists do not basically consider increase in marriage portion as proper. There is also such difference of opinions in Iranian legal system so that even uniform award of public board of Justice Administrative Court and comment of Guardian Council, which have been presented in this regard, could not clearly identify this topic. Using analytical-descriptive methodology in this paper, it has been tried to present, criticize and analyse comments of various Islamic denominations (Shiite, Hanafi, Hanbali, Maliki and Shafi‘i denominations) by documents and related evidences. At the end, it was believed that with respect to the existing legal bases, increase in marriage portion may not be assumed as proper, while it was tried to propose appropriate strategy with regard to time and place expediencies and conditions based on current fundamentals throughout this paper.

Iʿtikāf is a term in Islamic jurisprudence, which refers to a kind of worship the boundaries of which, including its place, are based on religious texts. Accordingly, some jurists believe that iʿtikāf is legitimate in any mosque, even if no congregational prayers are performed in it, but on the other side of the extreme, some have made recourse to hadiths to show that iʿtikāf is permissible only in the four mosques in which the Prophet or his successor performed congregational prayers, arguing that it is illegitimate to perform iʿtikāf in other mosques. In between, there are jurists who argue that this worship can be performed in congregational mosques, although it can be performed in other mosques in hope for a divine reward. In this article, I adopt a theoretical approach and a descriptive method of research to study the grounds of different views about the place of iʿtikāf. I examine the relevant hadiths and remarks by jurists to show that iʿtikāf is not restricted to the four mosques or congregational mosques in the technical meaning of the term, but rather is legitimate in all mosques in which congregational prayers are performed.

In the rulings of the religion of Islam, there is no decree to put Muslims in hardships, and wherever this is the case, God has placed openness and comfort in it to be bearable, from among them we can point out shortening of prayer of the traveler. The jurists of the Five Islamic Schools of Thought agree on the legitimacy of Qasr Prayer while traveling and that it is specific to four-rak‘ah prayers, but they disagree on the description of this legitimacy, whether the Qasr prayer during travel is Azimah (Obligation) or Rukhsah (Concession)? In other words, is it obligatory for the traveler to perform the Qasr prayer, or it is optional for him to choose between the broken prayer and the complete prayer? Therefore, the purpose of this research is to examine the sayings and evidences of each denomination regarding the obligation or non-obligation of Qasr prayer while traveling. Examining the jurisprudential opinions and sources of the schools of thought indicates that jurists of Imamiyyah and Hanafiyyah, based on verse 184 of Surah Al-Baqarah, various traditions, and consensus, are of the opinion that the Qasr prayer must be performed, and on the other hand, schools of Malikiyyah, Shafi‘iyyah, and Hanbaliyyah, based on verse 101 of Surah Al-Nisa’, traditions, and consensus, believe that it is permissible not compulsory.