نشریه فقه و حقوق خانواده
پیاپی 29 (بهار 1382)

One of the questions arisen about Shi’a legal deduction is how the Shi’a jurisprudence with its limited sources is able to deal with the current issues brought about by development.In continuing our survey of issues on Islamic legal deduction, it is necessary to look into the methods found in the teachings of the infallible imams in order to give an answer to the question. Thus, we will give an account of the role of the rich system of Islamic legal deduction, which not only has its special principles and rules but it is also dynamic and can grow and conform itself to the demands and accommodations of the time in any issue. After elaborating on this role from the point of view of the infallible imams, the methods will be applied to solving women’s issues to prove its usefulness.The study concentrates on the following topics: First, giving importance to Islamic legal deduction at the time of the infallible imams. Second, the effect of the demands of the time on the instruction of the methods. Third, training experts in the various sciences within Islamic jurisprudence and Islamic legal deduction. Fourth, presenting the general principles and rules of Islamic legal deduction as well as the methods of their application to current issues. Fifth, differentiating between the sound Islamic legal deduction from that based on an individual’s opinion. Sixth, the infallible imams’ views with respect to Islamic legal deduction based on an individual’s opinion. Seventh, instructing the methods of the application of Islamic legal deduction to current issues with the help of the Holy Quran and the Prophet’s(PBUH) traditions. Eighth, putting emphasis on moderation while renouncing all sorts of insufficiency. Ninth, the importance of rationality of Islamic legal deduction. Tenth, the preference of solid knowledge over unsolid knowledge. Eleventh, taking stand against Islamic legal deduction without scientific sources. Twelfth, accounting for the conditions set for the scholars and experts in Islamic jurisprudence and Islamic legal deduction. Finally, the emphasis put by the infallible imams on women’s scientific and jurisprudential expertise to solve their own issues.

Women’s destiny, as the half of the world’s population, has faced various upheavals during the epochs of human history. Since societies’ conception of the world has formed the basis for the ways of behavior towards them, women have sometimes been subjected to sanctification as the source of reproduction of generations, allowing them to enjoy a special status. At other times they have been assaulted, sexually abused and threatened on various grounds such as mental sensitivity and relative physical weakness.In connection with social changes during the European era of post Renaissance, women’s deprivation from their prestige-related and pecuniary rights aroused sensitivity in some sectors of society. Aiming at recognizing and protecting women’s rights in public forums as well as giving them their pecuniary and non-pecuniary rights, certain theories were raised and gradually defended, which paved the way for the signing of a series of international treaties.Not all of these changes have been to the benefit of the woman as they have lessened their problems while others have increased them. Simultaneously, however, they caused the legislation procedures on women to be revised by governments or made them accept certain international treaties.The convention against women’s discrimination is a subject stressed by international organizations on the above-mentioned grounds. The question of whether to accept to join this convention or not is much debated globally. The present article considers the subject matter from various aspects, particularly as certain articles of the convention are in disagreement with the Iranian constitution as well as the Iranian civil law.

Making a marriage contract sound in accordance with the relevant religious and civil laws arises rights and dutied for the wife and the husband. Their due observance plays a fundamental role in stabilizing the family system. These rights and duties are referred to as ‘the effects of a marriage’. Some of them are related to pecuniary issues, others are issues non-pecuniary by nature and supportive of human prestige and security.Some differences can be seen in the allocation of duties to the wife and husband by the Islamic law. These do not in the least arise due to discrimination but have been established in the system of law due to their specific reasons of origin. As the matter is logically explainable, it resists any kind of reflective thinking. Moreover, it simultaneously makes plain the accuracy and all-inclusiveness of the whole Shari’a law based on the wisdom, justice, kindness and mercy throughout the family law. This, in itself, reflects conformity and harmony between the Shari’a law, creation and human nature. In view of the Islamic ideology behind it, the necessity of leadership is seen and protected as a duty to establish goodness and justice as well as a duty to consult and give advice to perform things accepted in its view as the norms. Thus, there is no violation of others’ rights, extremism, violence, totalitarianism or harm inflicted. This way of thinking, inchoated by the ideology, comprises both the emotional and psychological needs of the human being. Therefore, the whole way of thinking can not only be referred to in the framework of obtaining the rights solely.The present article attempts to analyse woman’s non-pecuniary rights in the family in view of Islamic thinking. Not only the origins of the laws but also the roles of psychological security and respect of woman’s human value are elaborated on.

Only the division of husband’s property with the wife is a proviso proposed by the Supreme Court by way of its instructions of the years 1361/1983 and 1362/1984 to be included in marriage contracts. In accordance with the right given to the bride and the bridegroom to free will, this proviso is put to effect if both of them have consented to it at the time of making their marriage contract, as this is required by article 1119 of the Iranian civil law.Thus it is only on the condition given above that the husband has the duty to transfer to the wife half of his property accumulated during the marital life, in case he wants to divorce her.

In the analysis of the formulaic principle of under protection of law, which is a binding obligation of the Islamic government to protect, the individual’s right to live and the guaranty of putting the punishment into effect are of the greatest significance, on the one hand. On the other hand, the analysis takes into consideration the necessity of the rationality of things related to the issue, such as the necessity of the existence of a center where crime is dealt with and where a rational and reliable criminal policy is applied against crime.Rationally and logically seen, interference by individuals is not permissible as a reaction to some specific punishable deviations and crime, such as apostasy, blaspheming the holy Prophet(PBUH), armed rebellion, disturbance of public peace with use of arms, infidelity of a person who deserves to be fought, and adultery.The derivated formulas, even though rational and in accordance with the Islamic principles, guaranteeing the rights and freedoms, and specifically addressing the individual are not sufficient in considering the effects of the crimes on the collective. If we want to find a new method for this, it has to be based on the traditional principles while it also takes the prevalent conditions into consideration. The newly-adopted jurisprudential method is administrative jurisprudence. In the process of the derivation of formulas for verdicts, this method is itself not only obliged by the prevailing conditions in issuing the verdict but also by the traditional principles of Islamic jurisprudence. It observes both the past and present conditions. It also takes into consideration the proper purpose of the divine law together with its complete fulfillment. Moreover, it conforms to the notion of practical simplicity of formulas. All these are necessarily considered in issuing the verdict.To sum up, the method observes the accuracy of the definition of verdicts and their ensuing effects, as well as it considers the Traditions and the conditions of the time the text was first made known either as a revelation, a saying or jurisprudential teaching. The method takes all this into consideration in order to assure the rationality of the derivated jurisprudential formulas.

The concept of electronic trade refers to making contracts to transfer products, services, money, and trade documents by way of advanced means of electronic communication. The significance of this phenomenon arises from its role in making the world trade change completely, as they affect big sections of societies, such as trade, telecommunications, educational systems and even governments. The failure to benefit from the electronic trade means losing out of the quickly passing opportunities in the world trade and weakening the opportunities of competition in, and even becoming isolated from the international trade.Understanding this point of the matter has made various countries develop electronic trade. Increase in this trade, however, has simultaneously arisen the need to respond to the various legal issues, such as laws for contracts, international qualifications, the choice of laws applied as well as the legislation of evidence in substantiation of claims. Responding to these issues is an undeniable necessity for each system of law.Consequently, various countries as well as national and international organizations are trying to foresee laws to be proposed. Iranian jurisprudents and lawmakers are taking steps to the same purpose. They can apply the experiences and examples from other countries and international organizations.The laws applied for electronic contracts are a collection of articles, the first part of which deals with the meaning, significance, sorts and sources of electronic trade. Issues of security and those related to making contracts and their ensuing effects will be examined more profoundly later on from the jurisprudential point of view.