پژوهشنامه متین
پیاپی 55 (تابستان 1391)

One of the methods of prevention of injury or damage to parties to a deal is the practice of option of defection by the person entitled to option. The parties to a deal are entitled to such a right only when the subject of the deal is found to have been defected at the time of contract. But if the concept of defection is not properly defined or if there is no criteria or standard for definition of the concept of defection, then the practice f option of defection becomes difficult. As a result, legislation of the law on compensation of the injury is not practicable. Attempts have been made in the present paper to critically study the definitions given by the jurisprudents and refer to their shortcomings in the complicated industrial society today. Also in order to delimit the concept of defection, attempts have been made to make a distinction between this concept and other close concepts such as lack of attribute, lack of quality, etc.

Great experts of principles of jurisprudence have tried to make a distinction between jurisprudential rules and issues related to principles of jurisprudence. The following jurisprudents tried to solve this problem through different approaches; the late Akhund relied on the prevalence of such issues in jurisprudential chapters, the late Khoie tried to make a distinction between commandments and subjective nature of these issues and also between inference and adjustment, the late Hakim focused on dependability of one subject on another or their independence from each other, the late Naini focused on usefulness of these issues for the religious authority and the followers as well as the generality or particularity of the result therein; the late Imam focused on the independence of the issues. Among the said issues, only the viewpoints of Imam Khomeini and the late Akhund can be used as a comprehensive solution to the problem.

The Holy Prophet of Islam who was addressed by God as: “Surely you are of great morality,” says: I have been raised to perfect moral virtues. One can infer from the above statement that the divine religion and primordial nature are based ethics and morality. Imam Khomeini, the great teacher of ethics, too allocated a part of his book, The Forty Traditions, to the exposition of value and significance of virtues of human beings and ethical virtues. Attempts have been made in the present article to discuss the relationship between primordial nature and morality from the viewpoint of Imam Khomeini. The Imam considers improvement of the society and direction of human beings towards felicity as the main goals of creation. One of the connotations of conception of naturalness of morality is frustration of immoral people who loose their faith in correction and treatment. Hence, Imam maintains that any temperament can be improved and if necessary corrected. Hence naturalness of temperament does not mean that it is not alterable, rather it means that so long as the soul is in this world, it is alterable. Therefore, man can change all his ethical characteristics. Also the Imam refers to the four ethical virtues of wisdom, chastity, courage and justice to encourage people to move towards acquiring divine virtues.

Taking into account the place of the rules of no-injury and no-criticalness in the jurisprudential inferences, attempts have been made in the present paper to find out whether handicaps mentioned in the traditions and jurisprudential texts are exclusive to the mentioned handicaps or they are merely some of the examples. The hypothesis of the present paper is that: since the criterion of the said handicaps is being fatal or inflicting heavy damages, if other handicaps or new diseases such as AIDS or a mental disease carries similar damages, they too are considered among the handicaps that permit abrogation of a marriage contract. Also if one of the spouses contracts leprosy, the other spouse is entitled to abrogate the contract. Today, many diseases can be cured, therefore, if the disease is cured the permission to abrogate the contract is also nullified. In the light of Imam Khomeini’s viewpoints, divorce is not a suitable solution because in certain cases when it causes injuries and damages. Hence, in some cases abrogation is more defendable than divorce.

The theory of absolute guardianship of Jurisprudent is among initiatives of Imam Khomeini in the field of governmental jurisprudence within the framework of Twelver Imamiyah Jurisprudential school of thought. The theory of Caliphate of Raashede Abdurazaq Ahmad Sanhuri which was developed on the basis of general jurisprudence of Sunni School of thought is among important governmental jurisprudential schools. A comparative study of the two theories may prepare the grounds for better interaction between Islamic schools of thought and will develop Islamic general jurisprudence. Imam Khomeini maintains that Wilaya (guardianship) during the occultation of the Twelfth Imam has been created for a just and socially and politically efficient jurisprudent. Its domain encompasses public affairs as well as the exigency of the Islamic society and it is absolute with regard to the divine commandments including the primary and secondary principles as well as the laws enacted by human beings. In Imam Khomeini’s viewpoint, the direct election of the Wali-e Faqih by the nation or his indirect election by the representatives of the people (Assembly of Experts) is within the framework of general appointment of a just and politically and socially efficient jurisprudent. Sanhuri argues that one of the features of guided caliphate is its comprehensiveness and the fact that it encompasses religious and mundane affairs, while commitment to Islamic Sharia and its application within the realm of Abode of Islam (Dar ul Islam) is among the features of Caliphate system. He also maintains that the Caliph must be just and sagacious. According to him, a proper Guided Caliphate system can be formed with the participation of the experts from all Islamic territories to elect the Caliph and also to pledge allegiance to him. He also refers to consensus as one of the methods of election of the Caliph.

Among the significant issues in Islamic law is civil responsibility of people towards each other. There are a number of Quranic verses and traditions which are considered the base of this responsibility. One of these traditions is attributed to the holy Prophet of Islam: anyone who takes control of a property without the permission of the owner is responsible towards the property, and if the property remains intact must be returned to the owner and if it is damaged or destroyed its equivalent or its price must be given to the owner. Jurisprudents have relied on this tradition in many jurisprudential subjects such as usurping, transaction, responsibility, borrowing and mortgage. But since this tradition has not been mentioned in collections of traditions and the four Shia sources of tradition, some jurisprudents hesitate to rely on this tradition. On the other hand, there are differences between those who have referred to this tradition with regard to the domain of its applicability. Hence, it is necessary to defend this tradition and put an end to the diverse viewpoints in this regard by setting an acceptable standard.

The Middle Ages began with the gradual domination of Catholic Church over Europe. The anti-mundane and anti-scientific approach of this religion led to the creation of a situation which is also called the Dark Age. As a result, a man who renounced the world and was inclined to live in monastery, focusing on the hereafter in its catholic sense, was born. In reaction to this approach, humanism and Protestantism were born, which played a crucial role in expansion of modern materialistic civilization and birth of utilitarian human begin who discarded religion. With the victory of Islamic Revolution, the said schools of thought were challenged. The new Islamic approach offered a new human identity based on Islamic thought and practically a new human being was born in our age. The main objective of the present paper is to compare the three said approaches.