فصلنامه پژوهش های فقه و حقوق اسلامی
سال سیزدهم شماره 1 (پیاپی 46، زمستان 1395)

Legitimacy is the believing that the governing authority of any given country is entitled to issue the command and citizens are obliged to abide by. Some Western scholars believe that the laws of social life can be legislated by observing the social behavior of the human being. But the Islamic jurists believe that no one can legislate other than Allah. The present article has classified Quranic evidence of arising by law to the legitimacy in five groups of verses. The first group of the verses interprets the rules needed that the community as "God's Hudud". The other introduces rules as "God's Orders". The third group envisages ruling to be only "God's bestowed". The fourth category of verses, prohibit legislation without having sufficient knowledge. And last category of the verses, envisages ruling to be special for "ulu-l-amr.

On the basis of the Time-Sharing contract, a person, in a certain course of time, becomes the owner of the substance or its usufruct, or holds the right to benefit from the subject of the contract upon which the agreement is concluded. Under the influence of the Time-Sharing contract, the person holding the above-stated rights, will be able to directly or representatively fulfill his or her rights periodically for a limited or perennial course of time. These contracts are being concluded in a diverse set of forms almost in all of the countries around the world. The main purpose of this research is not to render a clear definition of the nature of the Time-Sharing contracts; but rather is to put emphasis on whether it is conceivable, based on Iranian legal system, to achieve contractual outcomes particular to the Time-Sharing contracts through a special type of Lease contract. In the very meaning of timeshare there is no substantive detachment between the substance of a contract and its usufruct and ownership is considered as a right. However, in the light of the tenets of the Civil Code of Iran and Islamic jurisprudential decrees in this regard, it is conceivable to attain the outcomes particular to the Time-Sharing contracts through a specific kind of the Lease contract or through the assignment of the “Substitutive Generality” to the subject and duration of the Lease contract.

Although Taqas (Offset of debts) is an undisputed precept of Imamiyah jurisprudence and there is no dispute over permissibility of setting off debts from natural person's property by taking the debtor's property -who denies to pay off his debt- without his permission, the issue is to set off debts from government-owned property, i.e. is it permissible for natural persons to set off debts from legal person's property? In spite of the importance of the issue, Imamiyah jurists have not discussed the matter except some hints given in margins of some chapters; or in response to some requests for judicial opinion from Imam Khomeini and some other contemporary scholars. After mentioning the viewpoints in this regard, this paper states the reasons of permissibility of Taqas from government-owned property and discusses them to evaluate the possible objections supporting the impermissibility view and finally according to Sahiha of Davoud Ibn Razin and concerning generality and absoluteness of some other reasons of Taqas consisting of Quranic verses and narrations, it deduces that under some conditions, it is permissible to set off debts from government-owned property.

The discussion about possession of oil and gas resources in Islamic jurisprudence may be inquired along with ownership of mines. It is deduced from total votes of the jurists about possession of mines that there are various comments in this regard whether such a possession is apparent and/ or latent and it will differ if it is assumed as public properties or joint ownerships so these are concerned with ‘Anfal’ and ‘public ownerships. Unlike the well-known impression, through inference from the current criteria for classification of mines in Islamic jurisprudence, oil and gas are deemed as latent mines in terms of change in their substance and application of the subject at present time. The jurisprudential system of exploitation from oil and gas mines will be different whether they are considered as public properties or the joint ownerships. With respect to the interpretation from concept of possession in public properties, such a difference will be further downplayed in this investigation. The mines will be included in administrative possession of Islamic ruler whether they are assumed as public properties or the joint ownerships. And the Islamic ruler may also delegate the mines as copyhold to the competent entities within the framework of the stipulated systems and regulations based on public expediency and interest. Of course, copyhold of mines is employed for permission for use and not for possession. The copyhold of oil and gas mines is maximally beneficent for appropriation in exploitation within definite period of time with possible request for returning them in the case of non- exploitation.

The approach and attitude of the contemporary human being about crime, and punishment of criminals has undergone serious change and transform that is mainly the result of change of human attitudes towards his role, position, rights and generosity. This study evaluates the theoretical position of some Islamic punishments (Hodoud and Tazirat) in the absence of innocent Imam (peace be upon him). The author believes that the change and replacement of the authorized and non-authorized legal penalties with other conventional penalties or reform methods is possible from the point of view of religious rules and principles and is a historical necessity regarding time requirements. The innovative aspect and distinctive feature of this article compared with other articles related to it is the acceptance of the change and replacement even in the case of legal authorized penalties.

Despite of the prohibition of the rebels in the right of intervention by invitation in international law, the rebels in some cases of civil wars, particularly the recent developments and civil armed conflicts in Middle East and North Africa asked for military aid from other governments in fighting against the governing state regarding with the right of people to self-determination. This is about people who are under oppressive, tyrannical and turbulent government and the responsibility that the Islamic governments to help them based on sharia have a double importance. So it seems necessary to examine the legal rules, prohibitions and restrictions governing such interventions from the perspective of Islamic jurisprudence and contemporary international law. Although, the intervention by invitation of rebels have been faced With some obstacles and limitations in international law and Islamic law which will be examined, it seems that international law can, in some limited cases with the permission and supervision of the UN Security Council, accept the intervention by invitation of rebels to fight the oppressive government and the governments that systematically violate their citizen's basic rights. The Islamic jurisprudence with the acceptance and the necessity of intervention in favor of oppressed groups who are fighting with the oppressive governments with ignoring of the present precautions in contemporary international law, give a clearer picture of intervention by invitation of these groups.

From long ago divorce has been accepted in laws and cultures with certain limits and constraints. Also in Islam divorce has got specific sentences and conditions and religious scholars have spent centuries to investigate and explain it. The fact that civil laws are derived from religious orders has not been ignored on the matter of divorce and includes those orders derives from jurisprudence scripts, although we sometimes observe silence and legal gaps or ambiguity in legal acts and this fact is seen throughout some cases of divorce, including mandatory divorce and minor divorce which their nature and orders have been clearly described, but the law has kept silence on determining its origin and type. For that matter and to solve problems and commentary on legal acts on this subject, reviewing from jurisprudence way and its implementation to the low has been a big help and has short its similarities and differences. This article has been edited for that purpose and acknowledges mandatory divorce as revocable and minor divorce as irrevocable.