مجله مطالعات فقه و حقوق اسلامی
پیاپی 11 (پاییز و زمستان 1393)

the sources of Islamic jurisprudence، Sadaqah has been considered both as acts of worship and a kind of dealing، and it enjoys in both fields، some applicabilities and has، therefore، particular regulations. However Sadaqah، as considered by section 807 of civil code، has exactly a certain contractual nature; a bare contract which is distinct from other contracts، even from gift، and taking possession is the condition of its irrevocability. The realization of Sadaqah depends on a certain dealing intention، which is the intention of making approaches to God. In the absence of this intention، the contract may find another legal description.

The holy legislator، and following it the lawgiver of the There have always been some ambiguity in the criminal law of Iran about the joint ownership، concerning the fulfillment of offences against the right of ownership. The main objective of this article is to cast some light on the problem and consider the ways in which the problem might be solved. We believe that، according to the developements of the Criminal Code، and according to the rules about being offensive in the subjet under disscusion، the generalization of the rule to other fields، which are not mentioned explicitely in the current rules، is in contrast to the Criminal Rule and its commentary. But if the partner takes more than his (her) share (illegally)، the prescribed punishment of hand-cutting is justified and discretionary punishment insofar as the stolen property is equell or less than his (her) share، seems more reasonable.

Having (a) child (ren) is one of the couple''s rights، a right that they can demand it or not. If couples use their childbearing right and bring only one child، is using of right this way، an instance of abuse of right or not? Is it admitted that the parents satisfy their will of being a father or mother، while the feelings of child in having a sympathetic partner in his (her) life will not be satisfied? From the child´s point of view، what would be the answer to this question?

Jourists consider dormant partnership valid، if only it is done through commercial activity. But we are not sure what the commercial activity actually is. It seems it may be generalized to all kinds of legal and authentic economic activities; according to general rules، considering the fulfilment of contracts obligatory، especially those activities concerning some gain and income.

This article explains the content، history and evidence for the jurisprudential rule of ‘Exclusive Authority of Imam to Implement Punishments’. According to this rule، which has been known in modern criminal law as the principle of judiciality of punishment، it is only authorized officials who are allowed to become involve in issues related to punishment. Based on convincing evidence from the Holy Qur’an، the tradition of Prophet Muhammad and infallible Imams (p. b. u. them)، and the consensus of jurists، this article assumes that the rule exists among other strong and certain Islamic rules. Referring to various jurisprudential texts from different historical periods of fiqh، this article demonstrates that even though the rule has been hardly discussed as an independent rule، the content of the rule along with the concept of social order have been among serious concerns of Muslim jurists from the beginning. In the traditional view، however، the rule has not been accepted as a categorical rule and it is often believed that it might allow for exceptions in certain cases. The article has argued in favor of the unconditionality of the rule and suggested that ignoring the content of the rule in practice is an evident example of ignoring Islamic teachings and would lead to chaos and harm to the security of citizens. Moreover، many other basic Islamic legal institutions like the ‘principle of legality’ and ‘presumption of innocence’ are meaningful only when this rule is accepted.

There have been various ideas and opinions by jurisprudents and lawyers regarding the conditions of the revocable contract. One of the conditions that may compromise the parties to this contract is the requirement of time. This condition may be indicated in the text of the revocable contract، in the condition of this contract or be separately brought in other contracts. Some believe that these conditions are absolutely void and ineffective; others consider invalidity as a condition-oriented factor only and don’t specify it to contracts. However، according to others، the terms of the contract are those inserted in the type of contract، and therefore if the contract is necessary، its condition is necessary too، and if the contract is revocable، the condition in the realm of natural appropriateness and main contract will be valid and binding. Considering the modern and early jurisprudents'' opinions and views on various types of contracts and different lawyers in various revocable contracts، the condition of time inserted in revocable contracts، seems not to be absolutely enforceable. However، the inclusion of such condition، provided that such contracts are not broken، is valid. Intransigence and will of the main parties in signing contracts and its impact on the spread and reduction of the scope of the commitments، however، should not be ignored، even though the obligations of the contract are revocable. Because having accepted the rule of law in Article 10، and the commitment to respect the will، the legislatore ensures such commitments.

Casual relationship is a concept related to cosmic world reflected in legal matters. It seems that in Sunni school of fiqh the origins of the concept firstly used when discussing analogy and inferring legal dogmas from their philosophies. The concepts of philosophy of percept (hokm) and percept have been later compared with natural cause and caused. Sunni jurists have slightly tried to distinguish between them. In Shiite school of fiqh from the beginning jurists did not welcome analogy، juristic preference (istihsan) and consideration of public interest as an independent resource for inferring divine percept. Rather they criticized these institutes. According to Shiite jurists، casual relationship in this sense doesn’t work as a base for inferring divine percepts. However، in late Shiite fiqh in different jurisprudential discussions and particularly in social chapters and parts، the idea of causality has been taken into consideration and has helped found strong basis in different Islamic legal issues including making new contracts and unilateral legal acts. Sometimes، however، the precisions of the issue are ignored and casual relationship in legal issues has been assimilated with causality in cosmic beings. The basic problems are coming from the assimilation of casual relationship in cosmic world with casual relationship in legal matters. The problem، in its turn، comes from ignorance of the fact that although human mind takes the concept of causal relationship from the cosmic world، it doesn’t mean that all characteristics of the concept must be precisely and necessarily applied in legal matters. Considering this fact and paying attention to all different aspects of legislation enable us to find suitable and analogical resolutions for legal problems while avoiding the problem of preponderance without a preponderant which is rationally prohibited.

Contract is one of the legal actions with very high usage، which is a means for Legal transfer of property and for providing supplies of individuals and ultimately of human societies and it has been developed and diversified coincide with the increasing of the capital and complexity of the economy. For studying contract in details، it''s needed to be divided because of its extensiveness and diversity، because the short life of human beings does not give them opportunity to study non-specialized matters. Therefore، there are so many classifications of contract that given by legislature، jurists and lawyers and in all classifications، there is a kind of contract that called suspended contract which states about the suspension in the composition، the suspension in the origin and …about event، definitive or contingency، circumstances of validity of the contract and use of suspended contract and … is controversial. Suspension and its impact، which can be said that it is the same suspension at the origin، is accepted by Iranian law. Except Marriage and divorce that suspension is not applicable in them، the existence of two principles، transportation of obligation to liability which is not obligatory («dhiman-e ma lam yajib») in a liability (dhiman) contract، given by Legislator.

The ultimate goal of child custody is the realization of children''s benefits and to keep them out of harm. Therefore، if the parents lack base qualifications and abilities، the child custody will be deprived of them. Also in the article 1173 of the Civil Code، child custody deprivation from its holder is considered. Since one of the qualifications of child''s supervisor is his (her) physical health، this paper، by analysis of jurists'' opinions، is going to examine the impact of illnesses on child custody. It further surveys that if the guardian has an infectious illness، endangering child''s physical health، or he (she) is not able to keep the child due to an incurable disease، his (her) custody will be void. But if the guardian be able to prevent the spread of illness to the child or does the affairs resulting the maintenance and upbringing of the child through an agent for example، child custody will be constant according to the legal rule.

By a comparison between Islamic law and the convention of human rights، we understand that there are some similarities، as well as differences، in these two codes. According to human rights، the marriage is free from the conditions posed by Islam، for example satisfaction of the guardian and being the two persons of the same faith. Though satisfaction of the spouse is necessary in both، and the marriage of the under-age، regardless of his (her) interest is forbidden. On the other hand، duties mentioned in the human rights convention opposes the civil code of Islamic law، according to which، men have been given guardinship over their wives and are obligated to pay maintenance. The convention is also silent towards polygamy and temporary marriage، while Islam has accepted them both. In this research similarities and differences between jurisprudential sources of Islam and documents of human rights have been mentioned، by emphasizing more on similarities، and human and reciprocal rights of husband and wife have been discussed.

The purpose of this study is to evaluate the collaboration of authors in published articles in The Journal of Studies in Islamic Law & Jurisprudence، during 2009 – 2013. This study was conducted in Scientometric Method. Descriptive Statistics and data analysis have done by Excel Software. The results of this research show that 73 articles were published by 136 authors in this journal. From gender point of view، 9. 6 % of authors were women and 90. 4% were men. The finding of this research showed that The University of Mazandran with 11 articles is most prolific among other research institutes and scientific centers. The Universities of Tehran and Semnan، each by 8 articles، place in the 2nd and 3rd positions. Collaboration pattern of authors in this journal shows that the Journal tends to publish collaborative works. Only one article was published by a single author. The results showed that the collaboration coefficient was 0. 4.