مجله پژوهش های تعلیم و تربیت اسلامی
پیاپی 3 (تابستان 1387)

Article 1167 of Iranian Civil Code with accordance to Shiite jurists dominant opinion proclaims that “an illegitimate child does not belong to adulterous parents. ” From the point of view of an ordinary observer this law indicates that between a natural child and his-her adulterous parents there is no legal relationship and the effects of such relationship, as rights, responsibilities, inheritance, guardianship, tutorship, and alimony are not applicable. Of course, there is an exception foreseen in civil law which is related to interdiction of marriage and in this respect there is no differences between legal and illegal parentage. But in the year 1997 a compulsory decision is rendered by the Supreme Court of Iran which brought a great reform in Iranian law, with regard to consequences of illegal parentage. This decision, according to a minority of Shiite Jurists and Imam Khomeiny’ s opinion, accepts the equal rights for natural and legal children, and specifies that the adulterer is the temporal father of the natural child and in conclusion, all the fatherhood’ s responsibilities like getting birth certificate for the child must be conducted by him. But just the inheritance laws according to article 884 of civil code, is not valid to them. As a result, today when interpreting the article 1167 of civil code, one can conclude that the main idea of no attachment of natural child to adulterous parents is only because of laws of inheritance. Otherwise there is no difference between natural and legal children with respect to duties and rights.

In this essay we will study the sources of dower in the Islamic law؛ and if the institution of dower has been created initiatively by Islam or it has existed previously and Islam has confirmed it? And in which cases men are charged with dower? What is the philosophy of dower in the Islamic law and the civil code of Iran? And what is its quantity? The result of this study is that dower is an institution existing before Islam. It has been presented different views about its philosophy, but none of them is decisive. Its sources in Islamic law are Quran؛ the tradition (sonnat) and the consensus of opinions (Ijma). Islamic jurist’s view is that the causes of dower are correct contracts, invalid contracts provided that penetration has been happened, and doubtful penetration؛ but the civil code has not mentioned the recent. Neither in the Islamic law nor in the civil code, the quantity of dower has not been appointed. But some of Islamic jurists do not permit dower with quantity more than dower of the prophet’s daughter and women. (Mahrossoneh). At the end we have concluded that the institution of dower is a useful one which is applied badly؛ and the legislator must interfere and discharge this useful institution from this libertinage by enacting some reservations or corrections.

Adultery only proves by confession plurality and repetition. This is a theory which is accepted by most Imamieh jurists. Ibn Aghil Omani doesn’t accept this theory. He believes that it is provable by one confession.The author chooses the third theory by reviewing and analyzing documents of two first theories. He believes that one complete confession is enough to prove mentioned crime. He also points out four confessions are only necessary to prove adultery according to the existing traditions.In this article, the author tries to prove his theory.

Insurance, as a new subject, has been considered by Islamic jurisprudents. The legal aspects of insurance have been discussed according to the principles of Islamic jurisprudence sources. In general, Shiite jurisprudents have regarded insurance as a legal contract. In their view concerning insurance they made justification for its validity in two ways. Some of them compared insurance to other specified contracts such as guarantee, amicable settlement, conditional donation, contract of reward and argued that insurance can be a case of one of these contracts. Others considered insurance as an independent contract and have concluded that it is a legal contract according to comprehensiveness of the rationales of the validity of contracts. In this paper the view of jurisprudents who have considered insurance as an independent contract and their rationale have been accepted and studied.

The writer of this article after defining of idiomatic concept "mortal illness" and explanation about its basis distinction from viewpoints of famous jurists and contemporary lawyer and determination of applicability for transactions during mortal illness, looks into religious laws for this kind of illness including testamentary disposition, onerous transactions, and his/her limits of freedom from viewpoints of Shiite and Sunnite jurists and lawyers and analyzed their opinions. the writer finally unlike of common opinion of latter jurists reaches to this absolute donative dispositions are valid and operative except case into which correct narrations asserting: testament have not be more than one- third of property.

The first automobile entered Iran in the time of mozaffareddin shah in the year 1275 of the Islamic solar calendar. Like other parts of the world, Use of automobiles spread rapidly. certain regulations, although brief, were developed concerning driving accidents in the first volume of The Iranian civil cod which was passed in 1307. these regulations were Based on ‘‘objective responsibility’’ which constituted the basis of the Civil code with regard to civil responsibility.In 1339, the law of civil responsibility was passed and introduced the Theory of ‘‘tort’’ to our legal lexicon. In 1347, the law of ‘‘ obligatory Insurance for land motor vehicles’’ was passed and founded the responsibility of the owners of land motor vehicles on the basis of ‘‘objective responsibility ’’. It required the owners of such vehicles to Insure their responsibility against the third person. the proponents of The tort theory tried to explain that law also based on the tort theory. However, their effort was fruitless.In 1386, the Law of amendment to the ‘‘obligatory insurance’’ was Submitted to the Islamic consultative Assembly (Iranian parliament). The initial proposal of that law contained conflict; its first article and Some other articles were based on objective while others relied on the responsibility, based on tort. As a result of certain measures taken With the assistance of the esteemed Guardian Council, this conflict Was resolved and the said law was passed based on the objective responsibility, which is needed by the risk – ridden society of today. Now it can be claimed that the responsibility based on the tort theory No longer occupies an important place in our law. There are some useful innovations in amendment to the law of obligatory insurance Such as attention to the ‘‘collective responsibility’’, which is deeply rooted in our Islamic law.

Civil right is a modern notion and the rights of citizen are nowadays essential for every democratic society. Civil right as an issue has become increasingly prominent, because the traditional boundaries of the nation-state in the world have been profoundly challenged by global developments in the organization of modern societies. For the first time, civil rights have been stated by the Declaration of citizen and human rights of France. The universal Declaration of Human Rights has also emphasized its importance. There are two views regarding the relation of Islam and the civil rights. One view is that, Islam is not competent to ascertain rules regarding civil rights, because Islam can not cope with the necessities of the modern life. In fact, it is frequently assumed, as well as stated, by many advocates of human and civil rights that civil rights can exist only within a secular context and not within the framework of religion. The other view, which has been proposed by some Islamic scholars, argues that Islam has its own rules regarding requirements and duties of individuals. It has been argued that Islam, as a religious tradition, has supported values and structures which are incompatible with the assumptions which underlie the civil right as well as Universal Declaration of Human Rights. In this paper we have tried to provide evidence that both of these ideas are erroneous. Individual's relation with Allah and his orders is like achieving rights. The stipulation of Islamic duties is for the reason that Islam aims to provide people with their rights. Accordingly, the duties refer back to the individual's rights. Islam, thus, is not against civil rights but on the contrary, it emphasizes the fundamental requirement of citizen's rights to achieve their objectives in the society. Also Islam can respond to any new needs, since wisdom is a very important source of Islamic laws, and there is a vital affiliation between wisdom and Islam.

There are two views for determining the applicable law in international oil contracts. The first is that these contracts are governed by international law or Lex Mercatoria and by the second that they are governed by national law of host countries. In the second view it is believed that the principles of administrative law should be applicable in such contracts by which the state has certain special powers to modify the nature of the work or the performance of the contract in favour of general benefit of community. Anyway it seems that both have accepted the right of state in such modifications but it is argued if it is acceptable to restrict such right by stabilization clause. The practice experience has proved that all the states have utilized such right and it is completely legal and legitimate and no agreement is eligible to restrict the right of nations to have permanent sovereignty over their natural resources.

Appearance and existence of religious courts in the structure of judgment and legal system of the history of the Islamic Iran is quite obvious and undeniable. In the present study, it is attempted to describe and elucidate the function of above ¬mentioned courts in the Qajar dynasty qualitatively according to the research methods in history. Findings indicated that in the Qajar time religious authorities had important role in arbitration of legal amlirs-beside secular courts and authorities in the different private or public rights dimensions- such as offences against dignity and retributive affairs under the appellation of Mojtahcd, Sheikh-ol-Eslam, Ghazi, Ghazi Askar and Sadr. Afore-mentioned authorities, except Mojtahed, were selected by government and limitation of their duties and their interrelationship to each other and sometimes to secular authorities were not manifested distinctly.The total function of the religious court's authority is assessed with appreciation and criticism.

There are two basic concepts in Allame Naini ’s political thought according to his book titled “Tanbih al Omma and Tanzih al Mella” arguing about constitutional government in Iran: one is the Authority Concept (he means “governing according to Sharia”) and the other is priority of constitutional government. Reasoning about the constitutional government he emphasized on priority of this type of government (not being according to Sharia). Examining Naini’s thought, writer argues that his juridical reasoning about the authority of government makes no difference with other Shiite jurists. The only difference he reasoned is that constitutional government is better than other types of governments such as autocracy.