فهرست مطالب

حقوق اسلامی - پیاپی 39 (زمستان 1392)
  • پیاپی 39 (زمستان 1392)
  • 176 صفحه، بهای روی جلد: 60,000ريال
  • تاریخ انتشار: 1392/11/15
  • تعداد عناوین: 6
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  • Mohammad Javad Fazel Lankarani Page 7
    The present writing aims to prove that, according to [Islamic] jurisprudence and Ijtihad, producing and using weapons of mass destruction (atomic, microbial, and nuclear) are prohibited. By weapons of mass destruction, weapons are meant which have an extraordinary destruction power and, in addition to military people, kill civilians. Based on rational arguments, some Quranic verses as well as noble hadiths, it has been argued that even if the enemy has such weapons and uses them, Islam does not allow to use these weapons in war. In the present article, it has been clearly explained that Islam never agrees that Muslims do whatever action against enemies and disbelievers in war. For example, if disbelievers kill Muslim prisoners or mutilate them, Islam never does allow Muslims to do similar actions.
    Keywords: weapons of mass destruction, strengthening Muslims military power, using poisons in war, civilians in war
  • Ebrahim Abdipour, Nasrollah Jafari Khosroabadi** Page 35
    According to Imami jurisprudence, subsistence of wife has not only certain superiorities to subsistence of relatives, its nature is different as well. This difference is the cause and basis of superiorities of wife’s subsistence and wife is protected within this different nature. Unlike subsistence of relatives, wife’s subsistence is one of the provisionaleffects of marriage and wife has a proprietary right towards it. None of conditions of being obliged such as husband’s financial ability is involved in making this right; and if it is not paid, it will be husband’s liability which he has to pay whenever it is demanded. Thus, it is not subject to statute of limitations and it does not cease to be valid.Subsistence of relatives, however, is of an obligatory nature and has no provisional effect; or it is at best considered as a pure obligation. For this reason, even if one who provides the subsistence avoids paying it, no reliability is made for him, unless in cases in which, according to the ruler’s permission, subsistence is paid as a debt by the third party. Results of this study show that differences between wife’s subsistence and subsistence of relatives may be, in Islamic Law, justified on the basis of two institutions of “debt” and “obligation”.
    Keywords: subsistence, wife, relatives, provisional statement, obligatory statement, debt, obligation
  • Jalaleddin Ghiasi Page 63
    After victory of the Islamic Revolution, a great part of our penal laws were taken from jurisprudence. The legislator, while he has been strictly committed to the religious rules, has approved this group of laws in a selective way. Sometimes, he has not mentioned a [religious] rule itself; and, some other times, he has not mentioned its consequences,conditions, and constraints. Here, the author discusses to find when, in such cases, general rules of law should be followed and when a specified religious rule should be followed. Some scholars think that the legislator is committed to the religious rules shows that he acts according to the particular; and, relying upon the Article 167 of the Constitution according to which the judge, on the pretext of the silence of or deficiency of law in the matter, or its brevity or contradictory nature, cannot refrain from admitting and examining cases and delivering his judgment and in such cases he has to deliver his judgment on the basis of authoritative Islamic sources and authentic fatwa, and the case of 'absolute' and 'general' has nothing to do with the above, some others are of the opinion that no act can be taken on the basis of the particular. The author believes that, in this regard, the particular and generally accepted rules differ from those which are disputed. In the former case (for example rules concerning abstainer and observer) one should refer to the specifying religious rules; in the latter, however, general law should be followed.
    Keywords: general laws, absolute laws, religious specifying rule, the Article 167
  • Naser Ghorbannia Page 79
    That whether nuclear weapons may be used or not is debated both among legalists and scholars of jurisprudence. According to the International Court of Justice, nuclear weapon is able to destroy the whole human civilization as well as the whole ecosystemof the planet. As stipulated by the Court in the advisory opinion about " Legality of the Threat or Use of Nuclear Weapons", there is no rule in the contractual or conventional law which explicitly shows that whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence. According to the NPT Treaty "Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament." This important commitment, unfortunately, has been never realized. In the Imami jurisprudence, along with some arguments, there is mention to a rule according to which under urgent conditions and to win a war, tools may be used which are not permitted to be used under ordinary circumstances of war. In the present article, the author has tried to argue for absolute prohibition of using nuclear weapons. The spirit of international law and the main principles governing humanitarian law are never consistent with using such weapons whichever conditions there may be. Principles of rationality, justice, and humanity are not consistent with using a weapon which is one of the distinct instances of offense, violation, and corruption. Some verses of the Holy Quran as well as traditions and Sirah of the Infallibles prove this claim.
    Keywords: nuclear weapon, international law, Imami jurisprudence, legality, prohibition
  • Ahmad Hajidehabadi Page 113
    Though there is no disagreement in acceptance of non-jural admission in civil cases, there is some disagreement about acceptance of such an admission in penal cases. This disagreement is based on the kind of legal system; since, according to the system of spiritual proof (which is based on the judge’s conscience), there is no difference between jural and nonjural admissions; here, it is the judge who evaluates proofs and it is,again, the judge who clarifies the value of jural and non-jural admissions. Non-reliability of non-jural admission in penal cases may be a result of the fact that there is no requirement to accept such an admission and, at the same time, it may be a result of obstacles the most important of which is the term “‘ind al-Imam” in hadiths. It seems that non-jural admission cannot be accepted in very important civil cases as well.
    Keywords: jural admission, non, jural admission, judicial admission, extrajudicial admission, the system of spiritual proofs, the system of legal proofs, the rule of Dara
  • Fatemeh Rajaei Page 141
    The 'right of appropriation' is one of the important juridical institution which has not been independently discussed in juridical books and only when its instances have been discussed, a brief explanation has been provided for it. Thus, to clarify its legal nature- what kind of right it is-, its causes, rules, and effects, the author has discussed it and come to the conclusion that the right of possession is an objective one; but, since itsrules are different for different subjects, it is not an absolutely objective right. On the other hand it is a right established for a person in an object which is not owned by him, but he is permitted to possess it. Thus, others are not entitled to manipulate that object. The difference between it and the right of exploitation concerns causes and subjects of the two. The most important causes of the right of appropriation are as follows: annexation, planning, revival, and allotment. Rules and effects of the right of appropriation have been considered according to its subjects. Its most important effect is prohibition of other's possession in a subject in which one has the right of appropriation.
    Keywords: the right of appropriation, priority, annexation, eligibility of waiving, rights belonging to no particular person