مجله فقه مقارن
پیاپی 8 (پاییز و زمستان 1395)

The qualities of loving loneliness and sociability in human nature have a deep relationship with each other despite their dichotomy. On the one hand, loving loneliness causes individual independence in a way that one does not accept any violation of community to this internal origin. On the other hand, innate tendency to make social relationship with others forces him to socialize with them. The interaction between these two human natural characteristics with expediency as the source of legitimacy of jurisprudential propositions has acquired realization finding different manifestations in various fields of life according to time and place requirements. Among all other things, the concern of protecting privacy as one of the most important desirable objects of human being has a historical background. Islamic jurisprudence with its substantial foundations is one of the protectors of this fundamental right, and has emphasized it through instances such as ban of inquisition and search, ban of bothering others, etc. Accordingly as long as there is no pressing social need, it is expedient not to reveal people's personal affairs. In the conflict between this interest with public interest, religious holistic and justice - oriented rationality imposes some limitations on individual interests in certain cases based on motivations such as maintaining security, national and governmental interests, social ethics, safeguarding labor law and public health via certain evidences such as the priority of more important things to less important ones, preventing disturbance in the entirety and rule of religion. This rationality prefers defending the public domain, and priority of social interests to jurisprudential foundations supporting privacy rights such as domination, lack of Guardianship, confidentiality, prohibition of inquisition and the things like probate (hisbah).

Some of the Islamic jurisprudents believe in legitimacy of charging fees in return for judgment. So judge is free to make a lease agreement with both litigants (or one of them), Islamic ruler or a third person and count the judgment and fee as considerations. The main question of the article is as follows: Taking the view of the majority of Muslim jurisprudents into consideration holding prohibition of charging fees in return for judgment, what are the proofs of Proponents of its legitimacy? The subject of this article is to analyze the legal arguments to prove the justifiability of charging fees for judgment among the jurisprudents of the five Islamic schools of law. They rely on two types of proofs: general arguments of the justifiability of contracts (including lease) and special arguments of legitimacy of charging fees for judgment. The result is that their special arguments face certain problems and only the generic reasons may be useful in this regard.

“Muqâsa”, “taqâss”, and “tahâtor” are three terms in Islamic jurisprudence. Some scholars regard them as synonyms whereas some others differentiate between them. The intended and dominant meaning of these terms in the study in question is “settling the debts”. Despite the disagreement of certain scholars, the dominant view among the Islamic schools of law is the legitimacy of “muqâssa”. Muqâsa is useful on occasions such as simultaneous settlement of debt, guarantee of debt, and reaching one's right. It also has its practical importance in the following cases; reducing the risks of transmission of money, accelerating transactions, and simplifying the payment of debts. As to the essence of muqâssa, some scholars regard it as a way to terminate the debt, and some as an exception to recoupment, and still some as a way of domination on other's property while others have considered it a way of extinction of obligations. Some have also mentioned more details about it. Some scholars see muqâsa allowable only in debts while some others allow it in both property and debt. Scholars are not in agreement as to its types: some maintain that it has three types, some four, and some hold it is only one kind. Some others describe it in more detail. Each of these types has its own conditions and consequences which in general results in the liquidation of debts and acquittal of individuals.

There are two differences between mukhabarah and muzaraah (sharecropping) and their legitimacy. These differences originate from two sets of hadiths; in a group of hadiths mukhabarah is prohibited while another group points to the deal of the Prophet (PBUH) with the residents of Khaybar in exchange for the half of the crops of the lands. Those who believe in legitimacy of mukhabarah justify the hadiths prohibiting it so that they can be reconciled with legiltimacy of muzaraah (sharecropping). But those jurists who reject the legitimacy of mukjabarah and muzaraah because of the similarity of mukhabarah with muzaraah, believe that prohibition hadiths abrogate legitimacy hadiths. Some others consider the Prophet deal with the residents of Khyber as receiving a land tax. Schools of Islamic jurisprudence agree on the illegitimacy of land leasing against the value of some of its products; because they have considered it as an example of gharar because of the unknown amount of the crop, unknown time of receiving it, and uncertainty about the ripening of the crops. But there is a difference between leasing and sharecropping. As in leasing the rent should be known, but in sharecropping remuneration should be shared, not based on presumed or specified portion of the product. Some of Sunni jurists who believe in legitimacy of sharecropping, have interpreted sharecropping as a contract of partnership between the operating company and the owner, hence solving the problem in some way.

There are two viewpoints about the possession of khums; one is the dominant view among Shia jurisprudents who believe that the person of Imam is the owner of Khums. The evidence for this viewpoint are based on the verse concerning Khums in Sura al Anfal and some traditions on this subject. The counterpoint of this view, is the opinion of some jurisconsults like Imam Khumeni who believe Imam is not the personal owner of Khums. Rather it is related to the office of Imamate and the Imam should use it for the promotion of Islam. The authors hold that the second view is consistent with the principle of justice. In other words, justice requires the authenticity of the second view.

One of the novel issues in the Iranian legal system is that of posthumous fertility. This phenomenon, along with the spread of artificial insemination, is that of the freezing of the gamete or embryo expecting posthumous fertility. There are divided views among Shiite jurists about the legitimacy of this phenomenon. To reach the real verdict in this field, it is necessary to take the disputed views of jurisprudents into consideration. Relying on certain evidence such as traditions suggesting the continuation of matrimony relationship after death, some jurists regard it valid and legitimate. In contrast, others question its legitimacy based on their own arguments suggesting the lack of matrimony relationship after death. There are also differences among the Sunni scholars in this field. Their view would be studied and analyzed in this article too. Finally, based on the signification of certain Quranic verses and traditions as well as according to the spatio-temporal requirements and the necessity of reproduction, the legitimacy of this issue seems to be more probable.