مجله مطالعات فقه و حقوق اسلامی
پیاپی 35 (تابستان 1403)

In the modern era, with the rapid advancement of science, genetic engineering has provided a suitable foundation for producing transgenic animals to achieve important scientific objectives. However, despite the increasing production of these organisms, one of the prevalent issues concerning them is the examination of their permissibility or prohibition in terms of consumption, and subsequently, the approval or disapproval of using their products in Islamic societies. Therefore, given the necessity of investigating this matter, the present research, through a descriptive-analytical method, explores the effectiveness of genetic modification in permitting the use of transgenic animal products. The findings suggest that if genetic modification affects the nature of the transgenic animal, this process could influence the legal ruling regarding the animal, and consequently, affect the permissibility of benefiting from such organisms' products. Otherwise, even with the occurrence of genetic modification, the process will have no role in determining the legal ruling for transgenic animals.

Fraud (Tadlīs) refers to deceit that occurs when a defect is concealed, or a non-existent perfection is attributed to the subject of a contract. At the same time, the option of defect and the option of breach of description arise due to the presence of an existing defect and a failure to fulfill the agreed-upon description, respectively. This shared characteristic might make distinguishing between these options in similar cases difficult and lead to errors in the application of the relevant legal rules. However, most legal scholars distinguish fraud from the option of defect and the option of breach of description by considering the element of intent and willful deception, treating the relationship between them as one of generality and specificity from a particular perspective. Nonetheless, from a jurisprudential perspective, such a view seems to conflict with the purpose of the Sharia in establishing options to compensate for the damage caused, and in some cases, it may result in the failure to compensate the harmed party. Therefore, in order to fulfill the Sharia’s objective of ensuring compensation for the injured party, we have sought to examine the nature, effects, and rules of each of the mentioned options in order to accurately explain the relationship and possible differences between them.

The main issue investigated in the current research is the application of the rule of Eghtefar to the terms and provisions of contracts. The rule of Eghtefar, literally meaning "forgiveness," in legal terms refers to leniency in the conditions required for the validity of stipulations compared to those of the main contract. The present article is a descriptive-analytical study, and the mentioned subject has been examined using the library method. The results of the article indicate that, despite the predominant argument of civil law scholars regarding the applicability of conditions for the validity of the contracts to contractual terms, such an argument contradicts the rule of Eghtefar. In other words, the application of the rule of Eghtefar to contractual stipulations demonstrates that the criteria for the validity of stipulations do not necessarily follow the conditions applicable to the main contract. This study has substantiated the provisions of the rule of Eghtefar and highlighted its profound impact on the validity of contractual stipulations. In particular, it has been proved that the rule of compliance of stipulations with the condition of validity of the contract, which is considered an indisputable rule in the general rules of contracts, is contrary to the rule of Eghtefar, and this rule negates the rule of compliance of stipulations with the conditions applicable for the validity of the contract.

One of the most astonishing achievements of humanity in recent decades is the interventions and manipulations carried out by scientists in the field of genetics. By discovering modern gene-editing technology, specialists have gained the ability to treat diseases by removing or editing undesirable and disease-causing genes in the human body or to instill desirable traits in individuals. The ruling on the permissibility or prohibition of such practices remains ambiguous and is a subject of debate among contemporary jurists. This study, using a descriptive-analytical method, examines the legitimacy of genetic interventions in humans by exploring the views of both opposing and supportive jurists. The findings suggest that the permissibility of genetic optimization can be justified with arguments such as the principle of permissibility (Asl al-Ibaha), the principle of treatment and healing, the rule of preserving life (Hifz al-Nafs), the rule of authority (Taslit), and the application of secondary rulings (Ahkam al-Thaniyah). Consequently, the study concludes that necessary changes in the human genome—whether in the area of gender or otherwise—are permissible under certain conditions, provided they are accompanied by therapeutic purposes, yield rational benefits, and promote the physical or psychological development of the fetus after birth. Additionally, the study recommends the establishment of regulations and supervisory laws over this technology.

Procedures are known by a set of formal rules and forms, and for this reason, procedures and formality are tied to each other. Today, one of the characteristics and rather the principles of procedures is its formality, in such a way that the "judicial system" cannot be imagined without the existence of formalities. The main question is, what is the relationship between formality and Islamic procedure? Is formality one of the principles, or at least one of the characteristics of Islamic procedures? A group of writers have denied the existence of any forms and formalities in Islamic procedures and on the other hand, some other most detailed issues of procedures have been considered to have a jurisprudence basis and documentation. The present article, in a descriptive and analytical way, tries to evaluate the place of this important and widely used establishment in Islamic procedure while examining the concept and basis of formalities. The result of the research shows that, due to the substantive-centered nature of the procedure, the formality in Islamic jurisprudence are not "principles" and are merely a tool for obtaining substantive rights. Therefore, Islamic procedure are considered to be one of the least formal procedures.

Permission (''Idhn'') is a frequently used concept in the jurisprudential and legal systems of Iran. Identifying and explaining the legal nature of permission is the first step toward analyzing this legal concept, as well as the different areas in which it plays a role. The widespread applications of permission have made it challenging to choose a single nature for it. Scholars who have aimed to identify the legal nature of permission have often focused on its permissive aspect, assigning it a single nature. They then extend this chosen nature to the permission found in ''permissive contracts.'' Accordingly, scholars have argued about whether permissive creation stems from will or legal provision; some consider permission a unilateral legal act (Iqa’), while others see it as a legal event. Viewing permission as a unilateral act or legal event seems accurate only in cases where the granting of permission results in permissiveness. However, in cases where permission becomes a source of representation—or, in other words, when permission leads to the creation of agency, as in contracts of agency—the nature of permission cannot be regarded as a unilateral act. Defining permission as a unilateral act in such cases leads to inconsistencies and fails to align the selected nature with instances where permission forms the basis for agency. Thus, to determine the legal nature of permission, it is necessary to distinguish between the nature of permissive permission and that of permission as a basis for agency (i.e., in permissive contracts) and to examine them separately. According to the authors, the legal nature of permission as a source of permissiveness is unilateral, while permission as a source of agency holds the nature of a contract.

In the complex, multifaceted, and critical arena of marriage and family institutions, one influential factor in the quality and longevity of family life is the set of explicit or implicit conditions that spouses include in the marriage contract. By agreeing to these conditions and relying on the commitment of the other party not to breach them, couples enter into a shared life. In today’s economic, cultural, and social context, the condition of not having children-whether for a specified period or permanently-and maintaining a two-person family has been incorporated into some marriage contracts and has captured the attention of some young people preparing for marriage. This study, setting aside the reasons why such an idea has arisen among those contemplating marriage and family formation, adopts a descriptive-analytical approach to explore the enforcement of this condition and the rights of the conditional party in cases where the condition is breached by the obligated party. By highlighting the ineffectiveness of general enforcement measures for conditions, this article argues that safeguarding this particular condition within the marriage contract depends on establishing contractual enforcement measures.

Regarding temporary detention and interrogation, it is essential to recognize that while the investigation and questioning of suspects are necessary to uphold justice after a crime has been committed, temporary detention inherently conflicts with individual rights and freedoms, leading legislators to impose restrictions on its application. Article 217 of the Criminal Procedure Code of 2013 articulates two principal goals: first, the rationale behind issuing detention orders, and second, the objectives of the criminal justice system, namely the pursuit of justice and the maintenance of social order. This paper employs a descriptive-analytical approach, examining contemporary criminological perspectives and the views of Imami jurists through library research, to explore the legitimacy or illegitimacy of detention and interrogation prior to the establishment of guilt, across various levels of criminal accusations. Although classical juristic sources lack a comprehensive discussion specifically on interrogation, insights into the ruling on interrogation can be derived from the broader discourse on pre-conviction detention.The analysis suggests that temporary detention in Islamic law has a solid jurisprudential foundation, as many jurists have issued favorable rulings that align with legal standards, a stance also evident in the Criminal Procedure Code. Moreover, in the Islamic Republic of Iran, laws that explicitly contradict Sharia are not enacted. This study therefore concludes that the primary ruling on detention and interrogation prior to proof of guilt is non-permissibility unless a specific justification applies. It also argues that the negative impacts of detention outweigh its positive aspects; thus, the presumption of freedom for suspects prior to a definitive verdict should be prioritized, with detention as an exceptional measure. To minimize temporary detention, alternative solutions should be emphasized, reserving detention as a last resort in essential cases only.

"Necessity" is a well-known principle in both jurisprudence and law, categorized as a secondary rule and applied across various legal and jurisprudential domains. When its conditions are met, this principle inevitably influences legislation, interpretation, and adjudication. Its impact is particularly significant in criminal law, where, due to public order concerns, sensitivity, and vulnerability, as well as its unique methodology, it occupies a critical role within the broader legal framework. Since criminal law typically embraces minimalism due to its severe, person-centered sanctions, the occurrence of necessity within the criminal sphere limits the expansion of criminal sanctions and must be interpreted within the framework of the principle of minimization in criminal law. Therefore, given the importance of this issue, the present study adopts a descriptive-analytical approach based on library research to examine the boundaries, criteria, and governing conditions of the necessity principle in the new Islamic Penal Code. This analysis demonstrates that reliance on this principle aligns with the logic and essence of criminal law, facilitating its application in this field far more effectively than in other legal areas, such as civil liability. Accordingly, it is recommended that the impact of necessity on civil liability be approached with greater caution, restricting its application to explicitly defined legal cases, particularly those based on fault-based liability.

With the goal of safeguarding maternal and fetal health, the Therapeutic Abortion Act was approved in 2005 by 40 members of the Iranian Parliament. This legislation, however, contained flaws that necessitated critique, interpretation, and revision, which were addressed in the updated law. The primary objectives of this act included preventing illegal abortions, reducing dangerous pregnancies for mothers, and avoiding the birth of children with severe genetic abnormalities or deformities, which could impose significant physical, emotional, and economic challenges on families and society. International studies reveal that prohibiting abortion does not reduce its prevalence. Instead, restrictive laws fail to halt abortion practices and have contributed to increased maternal mortality rates resulting from unsafe abortions. This article evaluates the jurisprudential and legal shortcomings of Iran’s Therapeutic Abortion Law, with a focus on secondary jurisprudential principles such as la darar (prohibition of harm) and la haraj (prohibition of undue hardship). The analysis adopts a descriptive-analytical methodology to explore these issues comprehensively.

The marriage of minors intersects both the domain of marriage and children’s rights, necessitating heightened scrutiny. In cases of minor marriage, while there is a consensus on the prohibition of sexual intercourse, non-coital sexual acts such as tafkhidh (thighing), kissing, and others, even with an infant, have been deemed permissible, despite potentially constituting child abuse. This paper, adopting a descriptive-analytical approach, examines the relevant opinions and their justifications, arguing that sexual enjoyment pertains fundamentally to a mature wife, not a child. Moreover, in addition to the psychological and developmental harms inflicted on the child, which are prohibited under the principle of la darar (prohibition of harm), reason unequivocally condemns such actions. Consequently, these types of non-coital sexual activities are excluded from the permissive ruling by rational specification (mukhassis labbiy) and revert to their primary ruling of prohibition.  Although some scholars have deemed minor marriage entirely invalid to avoid the aforementioned harms, this paper contends that such a marriage may be valid if it serves a rational purpose; otherwise, it should be invalidated. According to general principles of transactions and marriage, the contract remains valid if these conditions are observed. The primary objective of this study, which represents a novel and exclusive contribution, is the application of mukhassis labbiy to resolve a significant legal and jurisprudential issue (the examination of non-coital sexual acts involving a minor wife). While this discussion has traditionally appeared in jurisprudential texts in the form of simplified examples, it has rarely been invoked explicitly in legal rulings (fatwas).

The significance and distinctiveness of administrative litigation, compared to other forms of litigation, stem not only from the specialized nature of administrative disputes but also from their political dimensions. According to some scholars, the Administrative Justice Court in Iran was modeled after the French administrative litigation system. However, significant differences exist between the administrative litigation structures in Iran and France. The central question of this article is to what extent the reasons for establishing an independent structure separate from general courts for handling administrative disputes exist in Iran. Is the creation of such an independent structure necessary to address the specific requirements of administrative disputes? This study examines the structural models of administrative litigation in selected European countries (notably France, the UK, and Germany), American systems (specifically the United States), and Islamic nations based on population size (including Saudi Arabia, Egypt, Turkey, Algeria, Pakistan, and Yemen). Finally, it focuses on Iran’s legal framework to answer the aforementioned questions. The findings suggest that the creation of an independent structure for administrative litigation is primarily driven by political rather than rational considerations. It appears that the political factors necessitating an independent structure for administrative litigation are not significantly present in Iran. Thus, the resolution of administrative disputes within a unified judicial framework, based on the German administrative litigation model, is feasible.

With the growth and rising statistics of economic and financial corruption within the banking and administrative-governmental systems over the past decade, addressing these types of economic crimes has gained significant attention in criminal policy. Given this importance, the primary issue explored in this research is the broad concept of economic crimes, accompanied by various manifestations observed in society, such as embezzlement by government employees, bribery, corruption, smuggling of goods and currency, money laundering, hoarding, disruption of monetary and currency systems, and other instances. These crimes are characterized by their public, widespread, and organized nature, evoking the concept of corruption on earth (ifsad fil-ard) as defined in the Islamic Penal Code and Shi’a jurisprudence. The central question of this research examines the comprehensive authoritarian criminal policy adopted in legislative, judicial, and executive contexts, as well as the procedural framework governing judicial practices related to economic crimes. Accordingly, the study investigates the extent to which laws and regulations, on the one hand, and preventive or punitive measures implemented by the judiciary, along with managerial and executive actions taken by the government, on the other hand, have successfully eliminated the foundations of economic crimes in society. Furthermore, it examines the legal challenges encountered in this process and assesses whether categorizing certain economic crimes under the concept of corruption on earth possesses sufficient legal grounds and deterrent effects. The research findings, based on a descriptive-analytical method, indicate that proponents of applying the concept of corruption on earth to economic crimes justify this categorization through a comprehensive authoritarian model and emphasize its advantages. In contrast, opponents, whose arguments seem more robust, criticize this model, deeming it ineffective in addressing economic crimes.

The most significant jurisprudential challenge regarding joint-stock companies lies in identifying their nature and position among Islamic jurisprudential company models, as well as determining whether a joint-stock company is a contractual agreement or merely an organization formed for conducting business with the assets of a group of shareholders. Among jurists and legal experts, there is a lack of consensus on this issue. Even if the theory of joint-stock companies being a contractual agreement is favored, difficulties arise in aligning this company type with jurisprudential company models. Key obstacles to accepting joint-stock companies as contracts include the existence of assets distinct from the shareholders’ personal assets, the independent legal personality of the company, the mandatory regulations governing company management, and shareholders' adherence to majority decisions.According to contemporary jurists, among Islamic contracts and company models, ‘inan partnerships and mudarabah contracts share the closest structural similarities with joint-stock companies. However, the emphasis of commercial law on selecting board members exclusively from among the shareholders presents a significant challenge to aligning joint-stock companies with mudarabah and ‘inan contracts.This descriptive-analytical study concludes that while aligning joint-stock companies with the ‘inan partnership is feasible, considering them as a new and innovative partnership contract, based on the principle of validity and freedom to enter into legitimate contracts, is more justifiable than other approaches.