فصلنامه فقه
پیاپی 108 (زمستان 1400)

The Islamic jurist guardianship in issuing the rulings to prove the crescent sighting and the jurist authority in the arena of politics and management of society and the analysis of its astronomical consequences found a special place after the glorious Islamic Revolution of Iran. Since no comprehensive research has been carried out on the extent of its influence among the Mukalafan (accountable people), the question on the Islamic jurist guardianship in issuing the rulings to prove the crescent sighting and its extent of influence among the accountable people is an issue that deserves an appropriate answer. This study, which has been derived from the analysis based on the generalities and absolutes of the arguments of Wilayat-e-Faqih, indicates the reliance on the most of jurists' viewpoints in the related doubt. Because it must be proved that one of the governmental responsibilities of the Imams was to issue the ruling for proving the crescent sighting in order to rely on them correctly. Considering the completeness of Muhammad ibn Qays' correct arguments, the jurist guardianship in issuing the rulings to prove the crescent sighting can be concluded, and all the objections to it are rejected. Although other arguments in its authenticity have been put forward by some, due to the lack of authenticity of the documents or the reasons, they only play a role in confirming the claimed viewpoint. . According to the above-mentioned correct arguments and the concept of priority, the ruling is valid only if it is based on evidence and generality, and not on the knowledge and vision of the jurist himself. According to the analysis of the accepted phrases of Umar ibn Hanzalah, the rulings issued by the jurist, including the aforementioned ruling - in case of certainty of the jurist's error in the ruling or his error in the subject or knowledge of his error in the documents of the ruling or subject - is valid for all accountable people in the area of the jurist's governance and proving the crescent sighting becomes absolute and the religious effects of this event can be resulted.

Specific object and general object are the concepts widely used in contract law, which, according to Islamic jurisprudence (fiqh), can also be seen in the texts of case law. These two terms have philosophical and logical foundations that have been considered by their inventors. However, later it was neglected in the definitions of jurists and caused the misinterpretation of these two, and became the source of mixing of the types of objects, the effects of which are evident in various contracts, including the pre-sale of the building. Many believe that selling an unbuilt building through forward sale is considered void because it cannot be considered a general object. In the present study, while examining the logical and philosophical foundations of these two terms and the history of their origin and evolution in jurisprudence, it has been shown that the criterion for general and specific object in liability is not the actual multiplicity of external cases, but rather, the validity (in general objects) and invalidity (in specific objects) of multiple cases matter intellectually. In this way, the future building will be considered as a general object and there won't be any problem with the validity of its transfer through forward sale, in terms of the type of the sold object.

Living in a peaceful environment away from war has been one of the most important human aspirations and many efforts have been made to achieve it, including the recognition of the "right to have peace", according to which "living in peace" as "the right of human" has been affirmed and emphasized along with other recognized human rights. However, in addition to the humanistic schools, war and jihad have been emphasized in Islam in some cases, and Muslims are allowed to wage jihad and fight against those with whom they are at war. The question, which this paper seeks to answer, is whether the right to live in peace can be recognized for those who are not at war with Muslims, including non-Muslims. In answer to this question, it seems that by referring to religious arguments, especially the verses of the Holy Qur'an, it can be considered that fighting is permissible with those who are at war with Muslims. Therefore, non-Muslims who want to live peacefully with Muslims have the right to live in a peaceful environment.

There is no doubt in the validity and authenticity of the confession as one of the arguments for proving hadd crimes, but jurists have different viewpoints in the number of confessions necessary to prove such crimes. According to most jurists' viewpoint and Islamic penal code of 2013, it is required to validate two confessions in proving the crimes of qiadat (pimping, or ‘bringing people together for zena or lavvat’ with or without payment), qazf (slanderous accusations of zena or sodomy), drinking alcohol and theft (limit of certainty). Some have considered a single confession sufficient. The origin of most jurists' viewpoint is the comparison of documents of adultery and sodomy, the lack of accuracy in the documents of the adequacy of a single confession, and the great focus on the principles and rules of hudud. The current study is finally detailed using a descriptive-analytical method after reviewing the arguments. According to this study, well-known arguments such as referring to the most jurists' fatwas, the content of narrations, the statements of Sallar Deylami and Allameh Helli, the impossibility of relying on the general rule of confession and other arguments were not enough to prove the necessity of two confessions in proving the crimes of qiadat, qazf and drinking alcohol and a single confession is sufficient. However, in proving the hadd of theft, the documents of those who believe in the sufficiency of a single confession and their problems in the common narrative issues have not been necessarily valid, so the validity of the two confessions in proving the hadd of theft remains in force.

The right to imprisonment is optional for the parties of the contract, according to which they can defer the fulfillment of their obligation to the fulfillment of another person's obligation. The necessity of writing this paper is to explain the nature of the right to imprisonment, since most of the differences in the rulings and the realm of the right to imprisonment are because it remains unknown. Following the discovery of the truth of the right to imprisonment, the present paper has concluded that some differences are due to the confusion of concepts related to the right to imprisonment in Western law and Islamic jurisprudence. By re-examining these concepts in Imamiyah jurisprudence, Iranian law, and international documents, it was concluded that imprisonment is a purely financial right and despite its similarities with objective and religious rights, it cannot necessarily be considered objective or religious rights, but depends on the obligation and is also a kind of guarantee of mutual implementation that takes place in the place of defense and of course, it can be abolished or stipulated otherwise. The present findings are significantly effective in determining the limits of imprisonment, sentences, and its effects.

About unfair damage to a person who is a guarantee, if it is due to reluctance, sometimes Mukrah, sometimes third parties, and rarely Mukrih himself are responsible for the damage. Damage caused by reluctance is in some cases due to reluctant crime and sometimes to non-crime. In addition, reluctance may be related to the loss or aggravation of the destruction or defect or imperfection of another person's property (both guaranteed and non- guaranteed property). It may also force another person to usurp the property, without reluctance to waste, defect, or impair that property, and that person can be forced to take legal action. In addition, being forced to incur material and moral damage in reluctant adultery can be examined according to Article 9 of Iranian Penal Code. In each of the above cases, the question under consideration is "what is the effect of reluctance on the civil liability of Mukrah and Mukrih." The answers to these questions are not the same in all of the above cases. In most cases, reluctance excludes civil liability, but in some cases, it does not exclude him of his liability. In this study, the answers to the mentioned questions have been examined according to Imamiyah jurisprudence, public and Iranian law (with emphasis on Iranian Penal Code and Direct Taxes Code).

Realization of Ihsan (being married) in adultery hadd requires that the person has previously had sexual intercourse with his or her spouse. However, the couple must have the conditions during the intercourse so that they can be sentenced to (Rajm) stoning if they commit adultery. There is no consensus on these conditions. Despite the fact that Article 226 of the Islamic Penal Code adopted in 2013 considers the wisdom and maturity of a person necessary in Ihsan of a man and a woman, and in addition, the maturity of the spouse during the intercourse is valid in the ihsan of a man. However, the findings of the current study, which has been done by descriptive-analytical method, indicate that there is no convincing evidence for the validity of maturity and wisdom during the intercourse as a condition of ihsan, and that a person is mature and wise at the time of committing adultery is enough, although the intercourse with his/her spouse has been occurred in childhood or insanity. On the other hand, the couple's being Muslim is necessary for the fulfillment of ihsan in the case of at least one of them (the husband or wife) is Muslim and the narrated arguments is sufficient for that. Therefore, the provisions of the Islamic Penal Code in this regard should be reviewed.

The legislator stipulates in the single article on therapeutic abortion that if a maternal illness or fetal illness occurs, therapeutic abortion will be possible with the approval of three specialist doctors and the mother's permission. However, the legal statement "abortion ... is permitted with the consent of the woman and the punishment and responsibility will not be on the attending physician" shows that only the permission of the mother for therapeutic abortion can relieve the responsibility of the abortion Diya (blood money) from the attending physician. However, the mentioned legislation is facing jurisprudential and legal conflicts since the permission of therapeutic abortion along with the irresponsibility of guaranteeing diya in Imamiyah jurisprudence is limited to the assumption of the mother's illness and saving the mother's life, not the assumption of the fetus's disease. In addition, according to the note of Article 718 of the Islamic Penal Code, the failure to prove the diya in a therapeutic abortion is subject to abortion for the mother's illness or saving the mother's life. However, "fetal disease" is recognized in the single article of therapeutic abortion is one of the abortion licenses, along with the irresponsibility of the attending physician. The present study uses a descriptive-analytical method to prove that the mother's consent in the case of "fetal disease" is not sufficient for the physician's irresponsibility to have an abortion and the irresponsibility of fetus's diya for the attending physician, also requires the permission of the fetus's father.