فصلنامه فقه و تاریخ تمدن
سال هشتم شماره 32 (تابستان 1391)

The Inclusion of allowed conditions in contracts is only valid if such conditions are in line with the general terms defined for validity of the contract, prouided that the conditions must not be in contrast with the nature of the contract. The concept of nature of contract is a little hard to grasp in some types of contracts, particularly in marriage contracts. There are different opinions on the issue whether or not sexual compliance is a natural aspect of marriage contract. The majority of jurists argue that sexual compliance is in the nature of a marriage contract and any condition made against it will be void because in this concern; but others believe that the main nature of a marriage contract is the creation of a spousal relation between the parties. There fore, sexual compliance is an effect of such a relationship and is therefore among the terms of the marriage contract and may be changed or adjusted accordingly. The authors of the paper argue that though sexual compliance is an aspect of marriage contract, due to its fundamental role in solidification of a family it is a very necessary implication of any marriage contract. Thus, a non-compliance condition, i.e., the total dissolution of sexual intercourse, in fact a condition against the apparent effects of marriage contracts and is, therefore, against the very spirit of marriage in terms of religion and common law. Such conditions may be considered as something opposing the very nature of the contract, and even if not so, it is definitely against the ruling laws and thus illegitimate. But limitation of some aspects of intercourse or limitation of the sexual compliance during a given period of time due to a more significant reason or purpose or due to its contradiction with a social duties of a woman seems to be free of problems.

It has been more than a century since the laws and conventions related to legalization of intellectual property rights have been passed. Though in practice various national and international laws have been made for protection of intellectual property rights and many reasons and arguments have been brought into focus to establish the legitimacy of such laws, yet many countries still have other and different approaches towards intellectual property rights and there is still controversy between experts of law on the legitimacy and significance of such laws. Some experts argue strongly in their defense, while others undermine their legitimacy altogether. Naturally, Islamic law addresses the issue with its own set of principles and jurisprudence tools and forms its own perspective about the legitimacy of intellectual property rights protection. This paper first defines this type of law and the grounds for its emergence, and then proceeds to its legitimacy and significance of protecting intellectual property rights, particularly in the fields of copyright and patent, from the viewpoint of western law experts in a summarized manner. The main topic of the paper is providing a jurisprudent analysis of the concept and naturel of intellectual right. The paper first discusses the issue from viewpoints of Islamic jurists and then reviews the approach of Islamic law to the subject at hand. Because of the uniform international laws and the interlinks of global communities encompassing all sorts of scientific, cultural, commercial and industrial exchanges and interactions, the perspective and the scientific approach of Islamic law towards the rights created in such exchanges and interactions are of utmost significance. The paper eventually tackles the theoretical issues and practical implications of the topic.

Once a religious and Islamic government is formed, one important issue is whether women are allowed or forbidden from taking the position of judges and passing verdicts in courts. This is a very critical topic because according to principles of international law it is construed as a type of discrimination against women, and according to feminists it is a clear deprivation of women from their social and civil rights. Thus it forms the base of criticism and complaint about Islamic law.It is quite clear that according to both Sunni and Shia jurists of Islam women are forbidden from sitting in the judge position; and this is based on rulings of the Holy Quran and traditions as well as rational reasons. On the other hand, there is a ruling in favor of women serving as judges – in absolute or detailed form- which is of course found among some Sunni jurists. The author is of the opinion that though the forbidding reasons may be challenged and undermined to some extent, giving women an absolute right to judge is a very bold action in general. At the same time taking into account all the efforts and innovations in favor of allowing women to sit in the judge position – after gaining the required qualifications and characteristics of a judge of course- for issues specific to women and in cases when they have a right to offer testimony, it is made clear that the grounds are not set for such a ruling, and that the forbidding reasons are in fact quite robust.

The embryo in the mother’s womb is called a fetus. The fetus has a special set of rules and rights and it is given such rights when it is both alive and born alive.The paper reviews the material and spiritual rights of a fetus from the viewpoints of various Islamic sects. Some Sunni jurists have allowed endowment in favor of a fetus, while Shia jurists reject such a rule. From the viewpoint of some Sunni jurists, it is allowed to donate something to a fetus, while some other Sunni jurists, and of course, Shia jurists do not accept such saying as the ability to grasp a property is a vital condition to donation, which is, of course impossible for a fetus. Some Sunni jurists have said that a fetus has a preemption right, but Shia jurists have not opined on the issue.The material rights of a fetus are concerning as inheritance, testament, alimony, preemption right, endowment and donation. All these rights depend on the condition that the fetus is born alive. The spiritual rights cover topics such as genealogical claim, legitimacy of birth, being born safe and sound, duties of mothers in protecting the fetus, allowing pregnant women to avoid fasting, delaying legal punishment on a pregnant mother and preserving the fetus’s right to live.

The realization and occurrence of any thing is the effect of two causes: Fa’el and Ghabel. The fa’el cause in case of dar’e principle is the very existence of a doubt or ambiguity that constitutes the whole subject, and the Ghabel cause relates to the place where the doubt appears, i.e. the defendant or the judge. There is controversy among experts on this issue and its analysis is not within the scope of this paper. The main focus of the paper is studying the means and reasons behind Dar’e principle, which according to a review of textbooks on jurisprudence and law are: doubts due to an excusable ignorance, duress, coercion, necessity, alcohol abuse, sleep or unconsciousness, oblivion, temptation and deceit, claim, evidence and testimony of others, misperception and misunderstanding of legal texts, implied confession, etc. Each of these means may relieve the defendant of some punishment under certain conditions, which are explained in details.

In comparison to ordinal interpretation, topical interpretation is a rather new and emerging phenomenon aimed at discovering the viewpoints of Holy Quran on a given subject or problem. The paper attempts to define the nature of this method of interpretation and points out its concept, fundamentals, and differences with and dependencies on ordinal interpretation. The paper thus proceeds to define the terms “interpretation” and “topical” first, and then explains the various definitions of topical interpretation. Afterwards, the paper focuses on the special definition of Martyr Sadr on topical interpretation and points out its fundamentals and differences with ordinal interpretation based on his ideas. Eventually, the author comes to the conclusion that though topical interpretation is different from ordinal interpretation in terms of goals, the role of the interpreter, approach and beginning, it is never independent of ordinal interpretation when it comes to finding clues and discovering the real purpose behind a set of verses.