پژوهشنامه حقوق اسلامی
پیاپی 35 (بهار و تابستان 1391)

The question of the nature of the rules and laws governing the administration and regulation of the social relations among human beings has been one of the biggest concerns of the reasonable people in the long history of human thought. In response to this question, i.e. the nature of the discipline of law, the present article considers it as a mentally posited matter. The authors firstly give different definitions of mentally posited matter distinguishing the one relevant to law. Then they study the quality and components of the discipline of law. Relying on Allama Tabatabbai’s view concerning the mentally posited matters, and the quality of the formation of the discipline of law, they would achieve the significant issue of the presumption of the reasonable. As a third step, revealing the role of the element of culture in the formation of law and its combination with the presumption of the reasonable, the article would introduce a model concerning the quality of the relation of law, culture, and society elaborating the interaction between culture and law. Through this explanation, the position of the revealed considerations of the divine legislator, and their influence on personal considerations, the presumption of the reasonable, and the relation of law and culture would be clarified.

Exigency, coercion and duress are raised as three elements disturbing intention in the foundations of criminal capacity. Most experts in law study them under two separate titles, i.e. coercion and duress as one and the same title, and exigency as a different one. This distinction has been recognized by legislators before and after the Islamic revolution. So in the relevant articles, coercion and duress have been considered synonyms having the same bearing and conditions. However, these three concepts seem to be different each having its own definition and conditions. Coercion is the outcome of pressurizing somebody by a human or non human agent in which the coerced one loses his free will and freedom. If pressure does not give rise to lack of free will and freedom, in case lack of consent and peace of mind emanates from a non human agent, exigency is the result. Of course, exigency may have an indirect human origin. However, if lack of consent and peace of mind limits free will and freedom not to the extent of their elimination, happening by a human agent, there would be duress. Therefore, coercion and duress are two separate institutions distinguished by their creating agent, and extent of freedom, and free will, having different titles and bearings.

The general policies of the Islamic system aim at creating stability and regulation of affairs towards moving to definite objectives in a macro level and also at taking harmonious steps on the part of governmental powers in this direction, hence a novel institution in the constitution of the Islamic republic. The constitution considers determining these policies as the privileges and authorities of the leader after consulting the expediency council. There is little research on the religious and jurisprudential foundation of determining these policies by the leader. Some are of the opinion that these policies can be analyzed in the same process of the privileged commandments of the Islamic ruler in the Islamic society. The present article seeks to study the relation of the general policies of the Islamic system with the privileged commandments of the Islamic ruler in view of the legal components presented by the constitution of the Islamic Republic of Iran.

The concept of ignorance “jahl” frequently occurs in most of the disciplines of law especially private and criminal law and in some relevant disciplines such as jurisprudence and its principles. The concept of ignorance is of particular significance in these fields. There has not been any serious research into this concept yet. Possibly it is imagined that this concept is not so complex or complicated. However, a survey of different aspects of this concept and the correlation between its different types particularly simple and compound ignorance indicates that due attention has not been paid to this concept in legal researches. Studying various dimensions of this concept, its literal and analytical sense, and its technical sense in jurisprudence, law, and principles of jurisprudence, the present article seeks to share some new material in this regard with authorities in this field.

The judgment or decision of the experts is one of the evidence substantiating claims. The present article is an attempt to study the foundation and authority of this issue in the Shiite and Sunni jurisprudence, as well as the law of some Arab countries. Investigating some relevant issues in jurisprudence and principles of jurisprudence such as the authority of non mutawatir tradition and validity of the judgment of experts in physiognomy and translation, the article aims at substantiating the point that the judgment of experts has an Islamic foundation being considered as an Islamic evidence towards substantiating claims. This is due to the fact that the means of substantiating rights are the ways of adjudication. So in an Islamic legal system, the ways of achieving rights should be Islamic if we expect to have an adjudication recognized by Islam. As a result, the study of historical background of referring to experts views and judgments and their legal validity in the Quran, the Sunnah and the intellect can easily prove the legal validity of this issue as on of the evidence substantiating claims in civil as well as criminal cases.

Civil law in article 1258, considers written documents as the proofs of sustaining evidence and also subsequent to that has defined the document in article 1284 as “the documents consists of any written paper that is attributable in the position of dispute or defend.” The definition of article 1248 of civil law is that the document shall be in objective & substantial form, but the increasing tendency to using of Electronical devices and also expanded trend to application of electronic contract conclusion, and as a result the governments are forced to consider even its legal aspect and enact the appropriate rules in this regard. In our country, the enactment Electronic Business Act passed on 07 Jan. 2004 can be considered as an effective and important step in this field. In spite of enactment of law of Iranian Electronic Business Act, the statues of electronic contracts and following it the electronic evidences especially the Electronical document are ambiguous and this matter made many problems for fair and proper judgment. The main object of present thesis is to reviewing the Electronical documents as a new form of documents subject of article1258 of civil law. This research focuses on this fact that, although civil law has expressively applied the word “written” in the definition of document, but the comparison of traditional documents and Electronical documents make explicit that according to theory of functional equivalences, whatever that can be considered as function of traditional documents, exactly or even in the better manner, provides the Electronical documents.

The law of environment in its current sense is the outcome of environmental crises after the second world war as well as that of the currents opposing modernity. The legal reaction subsequent to the scientific, social and political reactions seeking to settle the serious conflicts between modern life and environment has not been initially derived from religious literature of great world religions. For this very reason, it seems strange to talk about the Islamic law of environment. Since Islam is not regardless of different aspects of human life, this issue is significant. On the other hand, confining human being, Islam seeks to regulate a moderate and perfect relation between human being and his surrounding environment. The present article is a modest attempt towards deriving the achievements of Shiite jurisprudence towards conservation of environment. However, the writer admits that the study of Shiite jurisprudence and environment is imperfect without taking economics, politics, arts and more than everything Islamic philosophy into account. The present article studies jurisprudential rules, jurisprudential institutions, and jurisprudential ordinances concerning environment and its consequences.