نشریه فقه و حقوق خانواده
پیاپی 28 (زمستان 1381)

After defining the formulaic principle of under protection of law, our article in the previous edition emphasized the need of the protection of an individual’s right to live to be pursued in accordance with the administrative jurisprudence. The administrative jurisprudence stands out as a separate methodology within the religious jurisprudence, which is also comprised of the family jurisprudence, and laws on punishment, agreements and religious observance, among other things. In the methodology of the administrative jurisprudence, not only the individual but also society is the factor affecting the religious jurist’s efforts to infer the specifics of a verdict on the basis of relevant sources.Doing this, he has to take into consideration the proper purpose of both the Shari’a law and the religious principles, together with their complete fulfillment. For this reason the law of the religious jurisprudence assumes, in the same way as any other Islamic law does, a new meaning and role in directing the process of defining the specifics of verdicts.However, the important thing to examine is the fact that the principle given above contradicts some of the categories of verdict in the Islamic law of punishment.In the present article some of the categories are surveyed from the points of view of the religious principles, the prophet’s traditions, and Shi’a jurisprudence. Similarly, the following items are of significance for the survey: the reasons obtained by way of the methodology of the administrative jurisprudence, the sciences of the religious principles and the religious jurisprudence, considerations about the traditions at the time of their issuance, and the historical conditions affecting Shi’a jurisprudence, as well as their effect on the religious jurisprudence.

In accordance with article 1133 of the Iranian civil law, established on the holy Shari’a of Islam, “a husband is, at any time, able to divorce his wife”. Iranian legislators consider new regulations necessary for restricting the modes of the interpretation of the article, and limiting a husband’s right to divorce as well as protecting the rights of a woman approaching a divorce. The husband has to observe some formalities, which limit his right to divorce, such as having a marital court issue a certificate of the lack of any chance of a continued marital life. Some laws passed are imperative, and are defined in the 1371 amendment law of regulations for a divorce. These laws are comprised of the following four items: the payment of the marriage portion in accordance with the rate of inflation, an obligatory gift apart from the marriage portion, the quantum meruit, and the alimony for the period of the abstention in the case of divorce.In contrast, other laws are not imperative, but make the fulfillment of a condition obligatory on a mutual agreement upon it at the time of making the marriage contract. One of these laws is the agreement about sharing, with the wife, the property that the husband accumulates during the marital life. The agreement is one of those that the Supreme Court proposed and included in marriage contracts by way of its instructions 1,34823 and 1,31823 of the years 1361 and 1362, respectively.

One of the characteristic features of our era is the constant development of the ways to use the most modern inventions of means and methods. In an attempt to redress the balance in the modern way of living, this has in its turn, made the modern individual confront serious problems. In seeking solutions to them, it is necessary to prepare practical laws in order to ensure the harmless use of modern technology. Such laws will support her in the world of relations on individual, social, and international levels, enabling the person to solve the arising problems. It is an absolute necessity to bring about such changes in dynamic Islamic thinking so that sound and appropriate interactions can take place. The religious jurists who are concerned about people’s need of interaction and the arising problems are to a great extent responsible for new religious jurisprudence. In this paper the religious jurisprudence, the dynamic religious jurisprudence, and the necessity of concern for modern issues are surveyed from various relevant points of view.

One of the most important distinctive features of the eternal Shari’a is the harmony of its regulations with changes that naturally arise in human life. As a matter of fact, religion is the flexible model and way of life.Considering the flexibility of the religious principles, it seems necessary to examine the secondary principles as one of the things permitting change. In differing the inflexible from flexible principles, on the one hand, and considering the reasons triggering the change of the principles, on the other hand, any change in the appellation of a principle changes a primary principle into a secondary one. As religious principles are sometimes dependent on their specific appellation, the change from the primary into secondary principle becomes necessary if the principle has been given a new appellation due to the specific circumstances existing for the person observing the principle, even though the principle itself has not undergone any change.This way of initiating change in the religious principles is performed by Shari’a scholars, and the justifying evidence for its righteousness assures its place in the rank of observable principles. In consequence of this, the reason for the preference of a secondary principle over a primary one as such is important. In taking the oral justifying evidence into consideration, the preference of the secondary principle is due to the dominance of its justifying reason over the preliminary principle. Considering, on the contrary, the logical justification, the principle is dependent on the strongest evidence. Then the conflicting laws for a principle are necessarily attached importance to rather than the oral justifying evidence.

The Iranian code of the civil law has been established on the Islamic law and Shari’a beliefs. Despite the difference of opinions among the Islamic scholars, the civil law has adopted the foremost opinion of the Shi’a religious jurists. Subsequently, the sources of the Iranian civil law have to be sought for in the Islamic jurisprudence. In probing into the sources of the Islamic jurisprudence it is, similarly, necessary to examine the religious principles. Having an interactive effect on each other, the Iranian civil law and the religious principles are of obvious significance.The present article aims at surveying the issue of istishab, legal presumption of continuity of the status quo in doubtful cases, from the viewpoints of law, its interpretation, and the ways of putting the civil law into effect. It also explains as to how the sources of the religious principles of this specific concept are reflected in the laws on property, individuals, and evidence in substantiation of a claim.