پژوهشنامه متین
پیاپی 42 (بهار 1388)

Duress is one of the basic concepts in the law of commitments which falls within the scope of consent. Economic duress is a kind of compulsion which occurs through threat to a financial loss. In this approach, duress is limited to physical threat. Hence the British court has invented the word economic duress in this regard. In Imamiyah jurisprudence and Iranian civil law, threat to property is also considered a kind of duress or compulsion. Hence property duress can be considered as economic duress in these two systems. In Imam Khomeini’s viewpoint duress is lack of consent for transaction. The transactional consent is opposite to refrainment or disinclination which is different from approval. Hence, in Imam Khomeini’s viewpoint the criterion for duress is the threat which causes insecurity to the person under compulsion when its occurrence is rationally possible. This threat can even refer to prevention of a profit which is normally gained.

Stepchildhood is a legal institution according to which a special relationship develops between the step child and step father. In the course of history of law this institution has existed as a means to protect the parentless children.In Islamic legal system lineage is created only through legitimate birth. Therefore, stepchildhood does not lead to contractual lineage.According to the law of protection of parentless children, the childless families, under certain rules and regulations, can adopt children without creation of consequences of blood relations, such as inheritance and prohibition of marriage. However it must be borne in mind that some duties and obligations which are on the shoulders of biological parents such as alimony and custodianship can be stipulated for the parentless children.

Can one pin hope on the emergence of an ethical discipline and a sustainable political consensus in Iran beyond the vigorous cultural-political contradictions and skirmishes? Relying on the processual pluralism, the main hypothesis of the present paper is: the prerequisite to conclusion of more valuable agreements at the social level is public conviction and commitment to communicative ethic and reliance of collective action on a sort of behavioral norms which are accessible through participation in the rational dialogues. This universal ethic, which has its roots in the rational, argumentative Iranian-Islamic culture, besides enjoying positive consequences such as offering practical effective mechanisms to achieve consensus, emphasizes on the equal communicative capacities of individuals, establishment of a comprehensive society and rejection of the negative role of coercive forces in creation of consensus, can also have some negative consequences such as negation of the authority of the sacred and offering an unrealistic plan. Hence, the reconstruction and promotion of institutionalized practical ethic, free from its necessity and significance, requires a thoughtful method in a manner that by preserving the ethical foundations of the present Iranian society, its reconstruction and blossoming becomes possible in an evolutional process.

It is not possible to know the nature of social and political developments or the dominating ideology and thought without paying attention to the form of permutation of social forces and nature of contradictions among them. One of the most important social forces that has played an important role in the politics and government, particularly in the social-political developments in Iran since nineteenth century, is the traditional middle class.The victory of Tobacco Movement and the Constitutional Revolution in Iran owed their victory mainly to this social force. During the Oil Nationalization Movement this force constituted one of the main pillars of the National Front coalition, while the traditional middle class was in the front line of the June 1963 uprising and that of the 1979 Islamic Revolution.The present paper is an attempt to study the effective factors on the hegemonic role played by this organized self-conscious social force in the main sociopolitical conflicts in contemporary Iran.

The present paper is an attempt to study the crime of kidnapping in jurisprudence and law with a special reference to the viewpoints of Shia and Sunni jurisprudents, particularly the viewpoints of Imam Khomeini on theft, including kidnapping of free human beings either minor or mature. Also the viewpoints of contemporary lawyers have been critically studied, while the Articles 631 and 621have been comparatively reviewed.

The discussion of the issue of first creation in philosophy and gonsticism has lead to exchange of views between the experts of these disciplines as well as between the experts of each discipline. The diffrenes become severer when the philosopher mystics or mystic philosophers (theosophists) try to combine the viewpoints of the philosophers and mystics. The present paper is an attempt to study the viewpoints of Imam Khomeini about the first creation in four sections: 1. The principle of single can create single alone; 2. The viewpoints of the phioosphers about the first creation; 3. The viewpoints of the Gnostics about the first creation; and 4. Combination of the viewpoints of the two groups. The fidnigs of the present paper show that Imam Khomeini in one case accepts the combination of the viewpoints of two groups, but in another case while he does not consider the their viewpoints contradictory, he maintains that the status of the topic in thwo disciplines has are different and should not be mixed up.

The issue of fabrication is one of the most important philosophical and mystical issues. Fabrication means creation of an effect by a cause and is synonym with causality, creation and establishing. An important question in fabrication is whether what is fabricated is the existence, nature, or evolution of quiddity. In theoretical mysticism and existential philosophies, particularly in transcendental theosophy, given the originality of existence, fabrication belongs to existence and quiddity is something accidental. Although Imam Khomeini was a renowned figure in theoretical mysticism and transcendental philosophy, he put forth the apparently paradoxical claim of combination of “fabrication of quiddity”, “originality of existence and fabrication of quiddity” and “fabrication of existence and accidentality of quiddity”. Attempts have been made in the present paper to discuss different aspects of Imam Khomeini’s viewpoints about fabrication and the criticisms put forth against it.