مجله مطالعات فقه و حقوق اسلامی
پیاپی 9 (پاییز و زمستان 1392)

The obligor may not compel the obligee to accept something other than the agreed object of the obligation، but they may agree that، in fulfilment of the obligation، another thing (property) which، by nature، differ or does not differ from the object of the obligation or with regard to quality or quantity، is equal، superior or inferior to it be delivered. In spite of different opinions، it appears that in this case، an anonymous contract is concluded that، in the same time، is the cause of satisfaction of the obligation and a separate cause for ownership.

By concluding a contract، some obligations might be generated for the parties or one of them. Each obligation_ whether it is the main term or arise from the implied term in contract _ should be performed on time. Sometimes parties in a contract determine the time for performance of obligation، thus the obligation has to be performed naturally and logically at the appointed time. yet، in some circumstances، the promisor probably attempts to perform the obligation prior to the appointed time that is called “Premature Performance”. In this paper، we have concerned to this type of performance comparatively، and concluded that if by considering the contract’s contents or nature or circumstances، it is not known that who will benefit from performance time، it appears that the promisor is the beneficiary in the performance time. Thus، the promisor can perform the obligation prematurely. In shi’ite jurisprudence، the prevailing viewpoint is that both parties are benefited by performance time. Accordingly، the promisee is empowered either to accept or reject the premature performance.

As implied in the heading of this research، we intend to investigate and analyze the capital punishment as a ta’zir (Islamic penalty) from shi’ite jurisprudence perspective. Indeed، in spite of legislative facts and regardless of acceptance of such penalties in our country’s enacted laws، we merely concern to analyze its legal and juristic permission or non-permission. In this paper، comparing the Islamic penalty (ta’zir) with other legal penalties، considering the philosophy of laying down of Islamic penalty (ta’zir)، regarding to some rules dominated the criminal jurisprudence and also with the assistance of principles of jurisprudence، we have answered the negative response to the mentioned question. We believe that enforcement of execution as Islamic penalty (ta’zir) conflicts with legal hindrance، and breaches the main purpose of lawmaker in laying down and legislation of Islamic penalties.

On the punishment of murder and limitations of powers of blood heirs in exerting of it، there is disagreement among the Islamic sectarian jurists. The well-known viewpoint in the shi’ite jurisprudence is that the punishment of murder initially and essentially is retaliation، and taking the blood- money requires mutual consent between blood heir and murder. This viewpoint is، for some، appropriate to the shi’ite school and is claimed that they all agree with it، is known as theory of determination incumbency of retaliation. On the contrary، some jurists believe that blood heir has empowered between the retaliation and taking the blood-money، and he can choose one of them. This theory is also called “theory of selection”. This paper has concerned to criticism and investigation of scientific and jurisprudential principles of these theories in the shi’ite and sunni jurisprudence، and has concluded that theory of determination incumbency of retaliation on the basis of weakness of theoretical principles، on the one hand، and its bad consequences doesn’t enjoy from scientific and practical validity. But theory of selection is based on the firm theoretical backing، and it can better provide the rights of society and blood heirs. Also because of having preferences such as conforming with principle of precaution، consistent with Quranic verses and cause of descent of these verses، it is preceding to the theory of determination incumbency of retaliation.

The fact that governor/government can lay down the decrees proportional to the necessities and interests of certain age and time and place، is accepted by many different jurisprudent schools. The diversity of opinions is in the domain and expanse of governmental authorities. Some believe that the government can just legislate in primary and unconvinced decrees and necessities and decisive social interests، and it proceeds such governmental commandments. Others have expanded its realm and taken into consider the extent of laying down farther up primary and unconvinced decrees but providing the decisive interests. This paper intends to demonstrate the maximum expanse of these decrees، so that it is finally concluded that governmental decrees at first in the respect of subject consist of any social and private matter، and secondly considering essence of decree، it contains the unnecessary decrees in addition to necessary decrees، and in the third place considering the basis and proof of decree، it consists of effort and unnecessary interests beside the necessary interests، and fourthly in the respect of validity of attainment of proof، attainment of conjectural proof is valid too، and attainment of proof (interest) is not limited the decisive attainment.

In Islamic law، prohibition and criminalization is based on purposes and goals that legislator (Allah) puts it in consideration. In this context، shedding light on purposive jurisprudence and understanding of necessity of Shar’ia provisions existence، leads us to its philosophy. The criminalization and punishment of apostasy as one of the subjects in Islamic criminal law have been noticeable for proponents and opponents. Regardless of prohibition of apostasy in Holy Quran and prophetic tradition (Sunnah)، the challenge is that criminalization and punishment of apostasy are emphasized by some Islamic texts، but on the contrary، some scholars believe that based on Islamic texts and shari’ah purposes and in terms of criticizing of hadith texts، apostasy is prohibited and not criminalized، and its criminalization is not consistent with these foundations.

Islamic jurisprudents both sunnis (the public) and shi’ites (the special) unanimously agree on prevention of murder) from inheritance but regarding to the prohibition of accidental homicide، there are different viewpoints among the jurists، that arise from contradiction of received traditions in this field. Thus some jurists deprive the accidental murderer absolutely from taking the inheritance even legator’s blood-money. On the contrary، some believe that accidental murderer inherits all legator’s inheritance and even his blood-money. Third viewpoint، considering the detailed theory، believes that accidental homicide prevents him only to inherit from blood-money that resulting from the murder، but murderer hasn’t been prevented from inheriting the other heritage. In this paper، three mentionned viewpoints and reasons regarding to them have been criticized and mean while refusing the first and second viewpoints، the detailed theory، that is compatible with the principles and rules governing the Islamic criminal law has been reinforced and accepted.