نشریه فقه و مبانی حقوق اسلامی
سال چهل و ششم شماره 1 (بهار و تابستان 1392)

Despite observation of regulations and precaution byauthorities and agents، sometimes other people incur a loss because of execution of legal order of senior authorities. This problem is separately discussed because that loss is caused by the order of senior authorities and the harmed person has no role in its occurrence. Also، that loss is peculiar to civil responsibility of the one in authority and is absent in other responsibilities such as those of doctors، producers of goods، and the like. In the latter، loss is caused by doctor’s and producer’s fault while loss in the former is caused neither by authorities’ nor the harmed person’s fault. The major problem، then، is how the government is supposed to approach this problem. Study of traditional rules of civil responsibility gives no general theory concerning indemnification of undo losses; hence، to bridge that gap، establishment of “Guaranteed fund of indemnification of losses of those who are harmed by terrorist activities، and crimes and accidents whose agent is unknown or taking compensation from the agent is impossible anyway” is proposed.

Theorization in the realm of criminal policy is badly needed by the country. Lack of coherent، indigenous pattern of managing activities dealing with offence and deviation causes lack of harmony of governmental institutions invested with administrative affairs، and this will lead to nothing but drop of standards of criminal justice in Iran. Although approaching criminal justice in Iran is primarily and essentially influenced by Islamic teachings، the expression “Islamic criminal policy” is facing several challenges in juristic-legal literature of our country: problems which must be detected and solved، otherwiseone cannot claim preparation for moving in the way of planning “Islamic-Iranian theory of criminal policy.” Study of researches in the realm of Islamic criminal policy indicates existence of some prevailing discourses in this connection; as some epistemological discourses – and not specifically in the realm of criminal policy - can also be detected which indirectly influence essentials، structure، manifestations، and evolution of Islamic criminal policy. Using the method of discourse analysis and reviewing perspectives in the realm of Islamic criminal policy in the research literature of the country as well as recent legal evolutions، the present essay explains detriments of existing perspectives in the juristic-legal literature in the category of Islamic criminal policy – with an emphasis upon philosophy of jurisprudence – and describes what relation can be established between policies governing criminal jurisprudence and Islamic criminal policy. The ultimate goal of this essay is to draw general characteristics of a reading of Islamic criminal policy which، in turn، is a part of a wider theory named “the Islamic-Iranian pattern of criminal policy.”

Discussions of Islamic international law، especially private international law، i. e.، nationality، domicile، legal situation of foreigners، and contradiction of laws are not presented in Islamic jurisprudence under the same titles، and this may lead to the supposition that Islamic jurisprudence has remain silent concerning such problems. The present essay intends to prove incorrectness of that supposition as to the major and the most important subject of private international law، i. e.، contradiction of laws، and that is why it has attempted to expound briefly the reality of contradiction of laws and its key problems in the contemporary، prevalent law first، to survey and criticize reasons of appearance of such assumption secondly، and to expound and draw the most fundamental cause، or ground، of origination of contradiction of laws، i. e.، existence of “private international relations،” from an Islamic juristic point of view finally.

In the legal proceeding، should an oathbe taken in case of lack of proof on the part of plaintiff، it would cause extinction of the claim of the plaintiff. Now، if it was proved that the oath has been false when the definite judgment has been issued، we encounter the problem of unlawfulness of reversal of judgment of the judge in jurisprudence and that of validity of what is judged in the Iranian and French laws. Majority of jurists hold that hadiths reveal that oath of the defendant renders all rights of the plaintiff as to the disputed property null، but should oath of the defendant be false he must naturally return the disputed property to the plaintiff. In case of confession of the oath taker to falsehood of his oath، he is legally obliged to return the property and all rights of the plaintiff، including the right to claim again، will return. In the French law، announcing falsehood of the oath after the verdict has been issued is considered among facets of re-trial، and in the Iranian law it can be treated as an instance of trickery، deception، and a facet of re-trial.

Making a balance between rights of creditors and heirs as to the estate of a debtor deceased is among most fundamental juristic problems which has been taken into consideration by Shi’a jurists from a long time ago. Discussions such as rights of debtors as to the estate،status of definite disposal of the estate by heirs before settlement، and the like can be surveyed in this connection. The problem of the time when the estate is transferred to the heir، however، is among most fundamental problems in such a way that all other problems are considered its branches and results; that is why the said problem has been a matter of detailed discussions. Different opinions are presented by Shi’a jurists and contemporary lawyers in this connection، andthe Article 868 of the Iranian civil code has also dealt with this problem. Detailed presentation of opinions mentioned in jurisprudence and law concerning that problem along with their criticism and survey can assist us in becoming more knowledgeable of theoretical essentials of the civil code. Presenting relative opinions in detail and criticizing them، the present essay indicates that the estate of the deceased transfers altogether to his heirs as soon as he dies – though right of creditors are considered in it before clearance – and deals with juristic and legal effects and results of this theory.

The bride possesses the right as to the dowry as soon as terms of marriage are uttered and is allowed to use it in any way she wishes، including denoting it altogether to the bridegroom and discharge him of his obligations in this connection. On the other hand، divorce before intercourse is considered an independent factor in transferring half of the dowry to the bridegroom based on which، according to the opinion of majority of jurists، bride must pay something equivalent to half of the dowry to the bridegroom. Analyzing opinions and surveying their proofs، the present essay comes to the conclusion that divorce before intercourse only causes removal of entitlement of the bride as to half of the dowry. Also، bride’s denoting the dowry is not absolute، but rather is dependent upon the implied term of continuity of marriage; hence، when the bridegroom violates that and divorces the bride، his discharge of payment of the dowry or ownership of it becomes obviated، or، at least، the bride will have the right to abrogate that denotation so that she still may have entitlement of half of the dowry in case of divorce before intercourse and that of all of the dowry in case of divorce after intercourse.

Ijtihadin the realm of jurisprudence and Shari‘a leads to difference of opinions. There is a disagreement whether dispute over juristic problems is lawful، for Shari‘a has a constant connection with individuals and social life. The result of dispute over Shari‘a would be conflict and separation in the social life and this makes differences of opinions in juristic problems unlawful. On the contrary، there is a perspective which on the one hand considers unity of opinions impossible because of differences of individuals، environments، and perceptions and on the other hand treats unity of opinions undesirable; hence، defends desirability of differences in opinions as to jurisprudence and precepts and considers it lawful. The latter relies on verses 78 and 79 of sura 21 which denote differences of two contemporary prophets in judging one particular case and، declaring differences of levels of knowledge as well as abilities of prophets، considers disagreement of judgments of prophets a practical pattern for social life; it treats scholarly disagreements of scholars in jurisprudence and precepts as the custom of scholars، comments on those two verses، and defends disagreements based on ijtihad – but negates disputes based on rebellion and mutiny.