مجله پژوهش های فقهی
سال یازدهم شماره 3 (پاییز 1394)

Today, free trade is considered as, one of the most important issues in international trade around the world... However, adherence to the principle of free trade and reduce tariff barriers, will confront many countries with the risk of dumping. Dumping as one of the negative consequences of free trade, which used as a means for illegal competition to expand foreign markets the and in some cases, destroy domestic product of importing countries. The trade in Islamic legal system is based on. morality and virtue and emphasis is made on equity and justice to provide a means of public welfare in the Islamic community. Dumping as an, unfair trade practices deemed to be in contradiction with some Islamic legal rules such as the principle of abuse of right and la zarar and the rule of disruption of the economic system.

Regardless of the main utilization of roads, the conclusion of different jurisprudential viewpoints is being permitted of any possession provided there is not any loss. Blocked roads and alleys are also deemed as allocated states of Taklifi Hokm of constructing shade: conditional permission on loss of damage, loss of damage with lack of opponent and absolute illegality. In this research, we have tried to justify the second view on several bases: the equality of right of possession among people, lack of priority against each other and the application of LA ZARAR principle. Without any doubt, VAZIE HOKM of the issue, is also the permission of construction providing any damage. Legal prohibition of occupying passages and the observance of civil construction regulations, are, legally imposed to preserve civil and citizenship rights and that confirms the mentioned subject which its origins has been detailed in this research.

Surveying historical books reveals that building status has a history of thousands of years. Gradually, this art developed and in the Arabian Peninsula it turned into building and worshiping idols, idolatry at the beginning of Islam, the majority of people in the region worshipped idols. After the eradication of idolatry through Islam, in the Islamic countries, the negative look and attitude towards making status continued and the Islamic jurisprudents (Faqihs) relying on narrations (hadiths) issued the prohibition of building statues. Therefore, the artistic aspect of building statues is still a challenging issue in the Islamic nations. The present study attempts to investigate and criticise the arguments for and against building statues and reveal that the reasons for the prohibition of building statues are not valid and the y can not be relied or considered as authentic.

In various subjects of Islamic jurisprudence, especially in the maxim “any contract in which there is responsibility for its valid one, there is responsibility for its void one”, the responsibility for valid contracts has been discussed by Islamic jurists. As regards the notion of responsibility, three stages could be regarded for a valid contract: formation, perish of considerations before delivery, and perish of considerations after termination. The main concern of this article is with the first stage although the other two stages are studied too. As to responsibility in this stage, there could be seen various attitudes among Islamic jurists: some ignore the notion of responsibility in valid contracts, some believe in contractual responsibility, and others interpret a valid contract so as to include non-contractual responsibility. This article deals with responsibility in a valid contract of sale; however, the discussions may be extended to other valid contracts with some appropriate modifications.

Political thinking in Islam is seen as an integrated system with lean and holy teachings and special guidelines to rune social, political and educational affairs of people. Hence, one can see many today social ideas in the narratives and statements by both Shiite and Sunny Islamic thinkers as a benchmark to evaluate and analyze their different attitudes. An idea is citizens’ participation right in society’s macro management that its ongoing record and prevalence in any political system shows its superiority, efficiency and utility. In the same framework, participation theory has a well – established status in Islamic political thinking which indicates the long history of this theory and justifies the necessity to evaluate it in Islamic political jurisprudence. However, one should note that the bilateral nature of participation – consultation in Islam differs from what seen in western democratic systems irrespective of some similarities. In fact, in Islamic thinking, participation – consultation is based on institutionalizing religious enthusiasm in people through mechanisms as “allegiance”, “public supervision”, “the right of advice”, “invitation to wellness”, and “enjoining good and forbidding wrong” recognized as the variables of political participation in its relevant concept in political literature. In present paper, by focusing on analyzing the role of participation in Islamic political thinking in three angels (the origin of participation theory in Islamic resources; reflects of participation in the decrees by Islamic thinkers; and highlighting the legal status of participation in upstream laws), the participation theory is assessed in Islamic political thinking.

Marriage is a special institution which is formed on the basis of sexual and emotional relation between woman and man. In choosing their spouses, people are compeletly free; the effects of this contract [of marriage], however, are specified by laws and there is no room for rule of two parties’ wills. One can rarely find a case in which wife and husband is able to eliminate the conventional effects of [the contract of] marriage. In this respect, contract of marriage is other than other contracts. One of the rare cases in which woman and man are entitled to specify effects of their marriage concerns ‘conditions [to marriage]’. According to the Article 1119 of the Civiil Code ‘the parties to the marriage can stipulate any condition to the marriage which is not incompatible with the nature of the contract of marriage or the Scripture or Sunnah and require the other party to accept it …’ Based on the situations of two spouses, various conditions may be stipulated one of which concerns non-disagreement of the husband with wife’s education. The present article tries to find how this condition may be included in the contract of marriage and what its sanction is. Of course, attention paid to the condition to attain this goal should not be an excuse to neglect the easier way to attain this important goal which is observance of moral virtues.

In Islamic law, confession is among evidence to prove a claim considered as based on the principle of ‘’ confession by the sane about himself is allowed’’. Even, it can be said confession has a higher demonstrability as compared to other ones in such a way that it is included among the most assured evidence to prove claims. In Islamic criminal jurisprudence, to prove many crimes, the repetition of confession is the necessary condition. However, there are discrepancies regarding the number of demonstrative confession about some crimes such as declaring war on God, apostasy and discretionary punishment. Accordingly, the question arising here is whether in questionable cases, a single confession cans considered based or the repetition of confession matters? The article 172 of Islamic penal code based the single confession whenever no clear wording exists. Through evidence assessment, this study tries to show that in disputed cases, crimes related to the Rights of God are out of the generalities and prediction of confession evidence and the repetition of confession are needed to prove them. But in proving the crimes considered as the Rights of People, the predictions and generalities of confession evidence should be considered and single confession should be enough to prove them because of theRational principles no errors, no reluctantly and no caution, Cases in which lawyer precisely commanded the repetition of confession are excluded.

In the family system bringing child is a major challenge of wives in the modern time. There is no disagreement among Imamites (Shi, as) jurisprudents about this issue that bringing child has no legal nature and is not considered a natural requirement of marriage contract. Sometimes wives have different views about bringing child and this makes them worried and upset. One way to lower these concerns is that wives make bringing child a binding guarantee; in such a case the parties to the contract has no right to violate this binding condition and in the case of violation, litigation is the only legal solution. comment on this article jurists about childbearing (estilad) as well. the first expression of one of the purposes of marriage from the perspective of verses and hadiths that childbearing and survival is the generathion evaluated، then a brief reference to the position of the child in Yat. V tradition، the next requirement was nature and refers to marriage and in the view of scholars have expressed about having children. it was concluded that having children was a religious nature and requirements of each application of the marriage، but couples can be provided in the contract or collusion on the territory of childbearing marriage and the requirement guarantee backed Apr legal turn.