مجله فقه مقارن
پیاپی 18 (پاییز و زمستان 1400)

The study of performance of the media, which is now known as religious, has shown a kind of dispersion and chaos in the way of presenting Islamic knowledge, and observing the results of the measures taken to improve the current situation, indicates that virtually none of these measures in providing a single and index definition of the desired religious media, accurate knowledge of its nature and finally issuing appropriate practical jurisprudential rulings and compiling media jurisprudence accordingly, has not been effective; and at best, these measures have only led to the need to accept and follow a single fatwa in various areas of contemporary jurisprudence, including media issues. The main reason for such problems is the confusion in understanding the nature and meaning of the media and not paying attention to the relationship between the two important words “a‘lam” and “da‘wah”. The purpose of the present descriptive-analytical research was to find appropriate answers to the questions “What is the desirability index of religious media?” and “How is it achieved?”, “What has been the achievement of the jurists of Islamic denominations on this issue?” and “Is there a practical achievement or not?”. This study obtained the following answers to the above questions: 1. Explaining the relationship between the two words “a‘lam” and “da‘wah” and the types of views related to it is necessary to understand the nature of religious media and then express its desirability. 2. The theories issued in the field of religious media by scholars and jurists are based on one of these existing views. 3. It is necessary to extract a clear and uniform definition from the religious media before issuing jurisprudential rulings and fatwas.

Emergency is a secondary title and it is one of the common jurisprudential rules used in different areas of jurisprudence and law. Jurists have mainly raised the issue of emergency in the field of foods and drinks and it has not been raised in the field of hodud and qisas and its arguments and reasons have not been addressed in a focused manner. Since emergency is a rule mentioned in the Holy Quran and narratives, in the present article, the Quranic arguments and evidences are fully and accurately discussed through a descriptive-analytical method. According to the Quranic verses, emergency is a justified reason for crime and the action conducted by someone in emergency is not seen as crime eligible for punishment provided that it enjoys mentioned conditions in Quranic verses. It seems that considering Quranic arguments, one can say that in hodud and canonical punishments, emergency is one of the justified reasons and the person in emergency is not punished. In qisas, also, emergency is seen as a justified reason in some cases such as crime against a body organ.

One of the judicial issues in the most important legal systems of the world is how to select judges who have jurisprudential and legal aspects. The election of judges based on public opinion is one of the most efficient ways of recruiting judges in these systems. For this reason, understanding the jurisprudential foundations of the theory that implies the selectivity of judges is very significant. The majority of jurists did not consider the public opinion to play a role in appointing a judge. Among contemporary jurists, some of Grand Ayatollah Khoei’s followers and some Sunni jurists believe that public opinion is involved in the appointment of judges. The main reason for the theory of electing a judge in the jurisprudence of Islamic denominations is the appearance that they have had from some verses and hadiths. Some of the reasons for this view are common in Imami and Sunni jurisprudence and other reasons are specific. Citing some verses of the Quran as well as referring to the system of “Judges as Arbitrators” to involve public opinion in the election of judges is one of the standard arguments between Imami jurisprudence and the jurisprudence of other Islamic denominations and in this regard, there is a proximity between Islamic denominations. In the present article, while explaining the views on the appointment of judges, some objections to the theory of electing judges are also mentioned.

The jurists of Islamic Denominations, while recognizing the right of lien for the wife in marriage, believe that the husband's ability to pay the marriage portion does not affect it. The Iranian legal system, following the well-known opinion of Imami jurisprudence in Article 1085 of the Civil Code, has recognized this right for the wife. Also, the Supreme Court in its decision of unity of procedure No. 708 dated August 12, 2008 considering the application of Article 1085 of the Civil Code and the well-known opinions of jurists, has not considered the husband’s insolvency in paying the marriage portion and apportionment of the marriage portion by the court as an obstacle to the wife’s right of lien. Therefore, the wife can refuse to obey until the last section of the dowry is paid, citing the right of lien. The following article uses a descriptive-analytical method to examine the difference between the concept of lien in a marriage contract with other reciprocal contracts and analyze the views of  Imami and Sunni jurisprudence regarding the reciprocal or quasi-reciprocal nature of marriage, to determine whether the right of lien is exercised completely and similar to other reciprocal contracts, it is difficult to enter into a marriage, and it seems that in cases such as the  insolvency of couple’s marriage portion or the marriage portion payment installment sentence, it can be considered to be abrogated by invoking jurisprudential rules such as the rule of i‘sar and la dharar.

It is not permissible for an unmarried pregnant woman to get married until she gives birth, unless he marries his ex-husband, and if the pregnant woman marries while knowing this deed as haram (forbidden), that man will be forbidden to her forever. However, at present, an unmarried pregnant woman who has been pregnant illegally marries an adulterer or non-adulterer during pregnancy, and sometimes the husband even finds out after the marriage that the woman is pregnant by someone else, and its ruling is not very clear. Therefore, the research question is that “From the point of view of jurisprudence of Islamic Denominations, what is the ruling on the marriage of an unmarried pregnant woman as the result of illegal relationship during pregnancy?” There are different viewpoints between denominations whether the marriage of a pregnant adulteress is permissible or not; According to the denominations of Maliki, Hanbali and Abadhi, and some Imami jurists, marrying the adulteress is not permissible and she must wait until she gives birth. According to the most of Imami and Shafi‘i jurists, getting married to an adulteress is permissible and intercourse with her is also permissible. However, according to the Hanafis and Zaydis, marriage to an adulteress is valid, but intercourse is not permissible, and one can have intercourse with her after giving birth. This descriptive-analytical study shows that jurists prefer not to permit that adulteress to marry during her pregnancy, since the main reason for those who believe in its permission, is the common texts, however, based on the combination of the evidences, the narratives that refer to adulteress marriage as impermissible are more reliable and the narratives referring to impressibility are specific narratives.

One of the challenges facing the current Islamic societies in the field of economy is the issue of usury in loans. The principle of illegitimacy of usury is a consensus among all Muslims and even it is considered to be one of the necessities of the religion. Invoking the verses and narratives relating to the prohibition of the usury, the most well-known Islamic jurists have regarded usury as absolutely forbidden. They did not elaborate on its types, however, since about a century ago, referring to some evidences, a group of Muslim thinkers have divided usury into two types namely the usury in consumption and usury in production and have declared the usury in consumption as forbidden and the usury in production as permissible. Accordingly, if the usury in loan is for production, trade and the like, is permissible and not forbidden. The findings of the research demonstrate that the reasons for prohibiting usury include both types of the usury in loan and the claim that usury is permissible in the productive usury is invalid.

Transactions during mortal disease, whether he dies or not, has been a controversial topic among jurists, as well as a popular theory among Shi'a and Sunnis. On the other hand, in the Civil Code of Iran, illness is not one of the reasons for dispossession in Article 1207, but regarding the divorce and marriage of a sick person, it is mentioned in Articles 944 and 945 of the said law. Therefore, the search for the criteria included in the mentioned materials and the assessment of the patient's charitable and loving actions related to death it is necessary that the history of dispute in it goes back to the long life of Islamic jurisprudence. Therefore, according to Article 167 of the Constitution and Article 3 of the Civil Procedure Law, it is necessary to analyze the jurisprudential descriptions of the issue and search in the wise statements of the jurists in order to resolve the ambiguity and brevity of the mentioned laws. According to this approach, the criteria mentioned for marriage and divorce are different from the criteria for other financial possessions of the patient connected with death. This difference also has reverse effects; including the evidence of the claimant and the denier in the assumptions of Articles 944 and 945 of the Civil Code. And their variability in other acts of charity and love of the patient is related to death. In comparing the issue with Sunni jurisprudence, in addition to stating the criteria in line with the previous theory of Shafi'i and Hanbali jurisprudence, the reputation of the issue in Sunni jurisprudence, which believes in the method of unity of ways with extra will, has been investigated in a comparative manner. Therefore, among the mentioned opinions, the criterion of not harming the owners of the rights, in other cases of marriage and divorce, is introduced with the mentioned description of the criterion of influence of the owner's monarchy; However, in this case, the claimant and the denier are the opposite, contrary to the appearance of the patient's actions; And it is measured by proving the poverty of the heirs.

According to the Qur'anic criteria mentioned in the verse: “حتی إذا بلغوا النکاح” (Al-Nisa’/6), puberty is a natural phenomenon that comes to the fore with the development of reproductive power, but in traditions, various signs have been expressed to interpret this stage of sexual ability, and several ages have been introduced to determine the maturity of girls and boys. This lack of unification of the basis and criterion in determining the age of puberty has caused the plurality of opinions of the jurists regarding the issue; And the result is that the Imami jurists act differently in following the hadiths of the Shia imams (pbuh) and the Sunni jurists in dealing with the Sunnah and the policy of the heads of their religions. The findings of this research show that in the field of understanding puberty narratives, what has not been paid much attention is audience analysis at the time of issuing narrations and traditions. As we see that, the Holy Prophet (PBUH) and the infallible Imams (PBUT) have always expressed rulings specific to a specific event based on the diverse characteristics of the audience and according to the influence of their specific requirements and the questioners of rulings that consequently, are not general.

Jurisprudents of different Islamic schools of thought, according to the type and combination of raised capital, have divided the types of partnership into four categories: ‘Inan, A‘mal, Mufawadha and Wujuh. Regarding the definition, effects and rulings of these kinds of partnerships, there are fundamental differences of opinion among the jurists of different Islamic schools. Due to the difference of jurisprudential and legal views and the silence of the civil law, the scope of these differences of opinion has also been extended to the authenticity or inauthenticity of Mufawadhah partnership. Those in favor of the correctness of the Mufawadhah partnership insist on reasons such as the existence of some hadiths, silent consensus, the similarity of the main nature of this kind of partnership with the two legally permissible contracts of sponsorship and representation, and the emphasis of the Islamic religion on participation and cooperation. On the other hand, the opponents of the validity of the Mufawadhah partnership have pointed to reasons such as the absence of an explicit Shariah reason about the validity of this company, arbitrary and consensus. In this article, with a comparative look at different Islamic schools of thought and with an emphasis on the jurisprudence books of Imami jurists and with the benefit of a descriptive analytical method, after defining the Mufawadhah partnership, by analyzing the reasons for and against the validity of this kind of partnership, with an emphasis on the answers, the solution and the violation that is given for the reasons of the opponents and supporters of the validity of the Mufawadhah partnership, in the end, the result is obtained that according to the silence of the law and despite the opposing opinion of some jurists, according to the opinion of jurists such as Tusi, Shahid Sani And Mofid, participating in negotiation in its famous meaning in Imami jurisprudence and following it according to Article 4 and Article 167 of the Constitution is invalid in the current laws of Iran.

The implication of prohibition for the contract corruption is one of the issues in which the Islamic jurists do not have a single opinion. The disagreement in this issue has significant jurisprudential effects. Amedi, one of the most famous theologians, same as the majority of Islamic jurists, believes that if prohibition belongs to the essence of the contract or its necessary description, the prohibition means corruption of contract. However, if it belongs to an external description, it does not have such an implication. Contrary to most proponents of this view, who consider the basis of corruption to be lexical, Amedi, citing some theological principles and rational and lexical arguments, considers the basis of corruption to be reason and concept. Sharif Al-Murtadha, one of the forerunners of the Imamiyya, believes that the prohibition itself does not imply corruption of contract, and the claim of corruption requires the external evidence. However, in the Shari‘a prohibitions, there is a principle called the custom of Shari‘a, which implies corruption, unless proven otherwise. Sharif Al-Murtadha’s main bases are rational and lexical arguments. There are also signs of theological foundations in his view. The absolute implication of the prohibition for corruption and the promise of the difference between invalidity and corruption are two other views, each of which has its supporters. The most justified view in this regard seems to be the view of those who believe in the literal meaning of the prohibition of corruption if it belongs to the essence or the necessary description of the contract. This view is mostly in accordance with religious and lexical arguments and rational and customary requirements.

In Iranian criminal system, imprisonment is the main and primary punishment for many crimes as in the past. It is sufficient to review Article 19 of the current Penal Code in this regard, which is at the top of all penal punishments, regarded as imprisonment. Since, this way of punishment has caused many challenges, alternatives for imprisonment and reduction of penal servitude are among the most important legal solutions. In addition to the requirement in the fourth principle of the Constitution of the Islamic Republic of Iran, based on all laws based on Islamic standards, the Islamic punishment law, as the main law of this criminal system, has been explicitly attributed to Islam. However, this fact that “imprisonment should be the main and primary punishment for many crimes, and if there is corruption or expediency from the point of view of attribution to Islamic law and it is necessary to consider an alternative or reduce its amount” requires investigation in terms of being attributed to the Islamic legislator. This research is of double importance because by imprisoning, the freedom of the person in all contexts are excluded not that restrictions are imposed only on the crime committed; hence its broad utilization may be incompatible with the human right to freedom or other natural rights. In this regard, the required data were collected by documentary method from religious evidences and the studies of Shia and Sunni scholars, and according to the results of analysis, it has been proven that its broad use in the form of the main and primary punishment with reference to legitimacy of imprisonment in religious narrative evidence and accordingly in comparative jurisprudence or by referring to the absence of imprisonment in the exclusivity of examples of punishment is not allowed. Hence, it is suggested that the same appropriate punishments to be the main and primary punishment for crimes. This is the right way to prevent imprisonment, which is incompatible with comparative jurisprudence.

One of the narrative terms is Ha’ishat, which has rulings and jurisprudential effects. This research, with descriptive and analytical method, is trying to answer this basic question: what is Ha’ishat and what is its jurisprudential ruling? The author has tried to discuss this issue according to its meaning in two dimensions; sedition and fear. Therefore, if someone is killed in seditions and riots; It should be examined from two aspects of religious rules (ghusl and prayer) and financial rules (diyah), where three cases are envisaged: first, if the victim was killed to fight sedition; He is considered a martyr. In the second case, if the victims are ordinary people who were killed by accident, they should be bathed and prayed, and their diyah is the responsibility of the treasury so that their blood is not trampled on. In the third case, if the victims are one of the seditionists, in this case there is a difference of opinion, but they are bathed and prayed. Also, if someone is killed or injured due to the fear of night or day, his diyah is the responsibility of the public treasury, provided that there are no accused persons. In this study, the jurisprudence, narration, and interpretation of rulings of the Sunnis were paid attention to. Of course, in the Sunnis texts, the ruling of the victims in seditions was mentioned, but nothing was said about the victims due to fear.