پژوهشنامه حقوق اسلامی
پیاپی 33 (بهار و تابستان 1390)

In the contemporary world, science and technology is developing by moments or seconds. This process involves quite new needs and requirements. To respond to these questions, it is inevitable that we seek new functions for legal rules and theories in the framework of Islamic sources and foundations. The philosophy of Islamic law attaches a capacity to expediency that can play a big role in this regard. The role of expediency in acquiring interests of this world and the next has given a big opportunity to the Islamic law towards recognizing priorities and even prescription of rules. The present article seeks to study briefly the current views concerning expediency in Islamic law. Explaining the domain of expediency in the Shiite and Sunni jurisprudence, the article points to its functional role in the modern world. The newly arisen issues have stimulated the need for Ijtihad on the one hand and there is the danger of being involved in secularization of jurisprudence as a serious limitation for expediency.

Legislation has always been one of the major functions of the politico- legal system of the society. This issue was investigated first among different scholarly, religious, legal, and socio-political classes about a century ago. Since the Iranian society is one possessing a religious culture and literature, the points of view as well as the theory makings of Muslim jurisprudents concerning legislation are considered among the most fundamental and influential causes. On the other hand, the relation between jurisprudence and law has been one of the most controversial legal issues since ancient times. In other words, while religious rules are available in the Muslim society and jurisprudents are ready to respond to any religious question and need, what makes modern legislation necessary? Thus the present article relies on three principal hypotheses respectively. a. Establishment of an organized structure for legislation i.e. Parliament next to the jurisprudential institution is one of the expediency- based requirements in contemporary time and place. b. Alongside religious rules and regulations stated by jurisprudents a large number of customary and administrative newly arisen issues can be settled through legislation. c. Conventional laws according to expediencies are legislated by the parliament and supervised by a body of jurisprudents satisfying religious interests. Considering the thoughts of the scholars of the constitutionalism era, the article seeks to clarify the point that elements such as custom and expediency are quite essential in legislation. The present article is in three parts dealing with the nature, the causes and the qualities of legislation towards a good explanation of the relation between religion and law.

Religious rules, whether charging or positive, belong to the acts of those liable to religious duties. Some of these rules require capacity of those liable to religious duties over their acts. Such a capacity is" right" in its jurisprudential sense on whose definition there is no unanimity and can be a matter of fact for certain rules. Permissibility of relinquishment and transfer through inheritance is one of the effects of such a consideration. In contrast, there is the term "rule" meaning those religious regulations from which you can not derive capacity over acts. As a result those three effects are lacking in the rules. Some of these rules are termed as " right" in jurisprudential books indicating its literal meaning i.e. affirmation. However, in their deep analysis they are rules due to their lack of the three features. It is worth noting that all the rights are not the same level concerning these features. In some cases there is doubt concerning distinguishing between right and rule. In some other cases there is no doubt that something is a right but there is doubt in possessing some of those features. These situations require a precise criterion towards distinguishing the right from the rule and recognizing the effects of right. The present article is an attempt towards knowing the differences between these two divine legislations through various views of jurisprudents.

A study of the analytical sources of the Constitution of the Islamic republic of Iran such as the proceedings of final investigation parliament, the Council for Revision of the Constitution and the interpretive as well as precedential doctrines of the Guardian Council indicate that the theory of independence of powers in Article 57 of the Constitution is merely presented in order to give a professional distribution of governmental duties among different institutions. Thus it does not have anything to do with the foundations and goals of the theory of separation of powers concerning the necessity of separation of powers towards their controlling and preventing corruption. However, this article -as a structural principle- has had a significant position in the constitutional law of the Islamic Republic of Iran. Leaders of the IRI and the Guardian Council have also emphasized safeguarding the independence of the three powers. Analyzing the sources of IRI Constitution, considering the special focus of the jurisprudent guardian as the delegating institution, regulating and supervising the governmental powers, and observing the customary conduct on the Guardian Council for over 30 years as the official and primary institution of interpretation of the constitution, we can say that the principle of independence of powers is the most important principle in analyzing and explaining the relations between the three powers and should be given due consideration. Thus the extent of authority of each of the three powers is considered a limiting factor for other powers and even specifies or limits the absolute or general authority of other powers.

All juridical acts including unilateral and bilateral contracts require the will and intention of individuals in their existence. In other words, first one should have a knowledge and awareness of a matter of fact and then his will or intention towards a juridical act would be formed. However, the Article 356 of the Civil Code is seemingly in conflict with these general rules. This Article explicitly reads that if something is considered an accessory to the object of sale, its ownership will be transferred to the purchaser even if the parties to the contract be ignorant to them and there has not been any intention concerning it. The present article deals with the following issues: Is the ruling of this Article contrary to the principal rule? Is it counted as an implied legal term? Is implied legal term essentially valid? Is this article consistent with the will and intention of the parties to the contract? Is this article far from the above foundations following another rule?

Self- defense has been one of the controversial topics among the issues of criminal law since the remote past. Its traces can be witnessed in all legal systems and in all ages. This important issue has developed and been enriched through the time due to the prevailing thought over humanities. Nowadays all the legal schools are unanimous in recognizing the principle of self defense. The existence of legal rules concerning self-defense is an evidence towards establishing this claim. In spite of the unanimity in recognition of this very principle, the conditions under which the defensive behavior is regarded legitimate are not elaborated. The nature of self-defense and its influence on criminal liability has also been under discussion and debate in all ages. This heated discussion has led to the development of this concept in criminal law. The root of these different points may be found in the difference in the foundations of defense. The very principle of defense regardless of its foundations influences its nature and conditions. Thus dealing with the foundation of the legitimacy of self-defense is influential and significant towards the conditions and effects of defense. The present article seeks to find the jurisprudential foundations of self-defense through the jurisprudential texts analyzing them based on jurisprudential concepts and literature.

The present article analyzes the issue of removing organs from brain dead patients as a matter of fact and as a matter of law. Giving definitions of life and death, it clarifies the position of brain-dead patients. Referring to the above-mentioned definitions, traditions of the Infallibles, and jurisprudent's views, this article concludes that such a patient is a living human being whose removal of organs are not allowed. The criticism of the arguments of those allowing organ transplant in brain-dead patients is another part of the article supporting the hypothesis of the article.