مجله فقه مقارن
پیاپی 20 (پاییز و زمستان 1401)

The importance of the reason of revelation in the interpretation of all the verses of the Qur'an, especially in the explanation of the jurisprudential verses, can't be neglected due to its direct influence on the practice of Muslims and is of special importance. Using the historical, descriptive-analytical method and collecting library information, this research compares the viewpoints of Religions on the causes of revelation. The researcher aims to examine the narrations of the causes of the revelation in the interpretation of the Majma al-Bayan Tabrisi, Asbab al-Nozoul Vahedi and Labab al-Nuqul Soyuti, to explain their point of view under the jurisprudential verses in two areas: the effect of the causes of the revelation on the correct understanding of the verse and the scope of sharing and differentiating the views of Shia and Sunni and the origin of their differences and from this passage, he will find their common points in this regard. The author has first mentioned the investigation of the position of the cause of revelation in Tafsir, and in the following, the viewpoint of these three thinkers has been investigated. The common method among them is the descriptive and reporting method, and in the meantime, Tabrisi has paid attention to criteria such as the general validity of the text, compatibility with the appearance and context, the criterion of history, the criterion of religion, and adherence to his Shiite point of view. Vahedi has based his foundation on the transmission of narrations, and in most cases, the narration explains the cause of revelation in detail, although sometimes he has stated the reason without a document and sometimes with interpretations such as mostly, and Soyuti used criteria such as Makki and Madani, the evidence of narrations, and attention to Ibn Hajar's opinion to prefer the reasons of revelation. In the researcher's opinion, the difference between these three books in the quality of using the sources of the revelations of movables comes back to the criterion of the authenticity of the hadith. It seems that there is a difference in the acceptance criteria of the narration.

It is clear that regarding to the political system of Islam, not every individual can take over the affairs of Muslims and govern over them, but must be the most worthy person in the society and have the necessary conditions, characteristics and serious responsibility for this major position, because growth and the excellence of a society or its decline and overthrow are the consequences of their actions. One of the main purposes of this article is to answer questions such as: at what extent have the jurists of the Islamic Denominations referred to the prevailing conditions and characteristics? Or what are the differences between them in this case? Accordingly, after explaining the concepts of the present study, related to and in line with the discussion, would have explained the views of the votes of Islamic Denominations. First of all, the consensus conditions have been explained: being a Muslim, have the power and act of leadership and courage, being a man, Intellect and maturity, health of body organs and being free, and in these circumstances there is not much difference among the jurists of Islamic Denominations. Then, the disputed conditions have discussed which they are: justice, the qualified jurist, and the ruling science. This article is analyzed by descriptive-analytic method with the aim of examining the conditions and characteristics of Islamic governor.

One of the challenges of couples after marriage is the desire or unwillingness of one of them to bear children without consultation and coordination through Azl (withdrawal) or one of the common nowadays methods , which causes quarrels between couples and referral to judicial courts, and sometimes leads to divorce. Expressing the issue of reproductive right in Azl is worthy of reflection from the point of view of tradition and from the perspective of human rights, and it is necessary and important to deal with it in the present era. Based on the perspective of the four Sunni and Imamiyyah denominations and observing the rational and narrative evidences, the present research explains the relationship between the permission of the wife in Azl and various common methods with childbearing and raises the question whether marriage will create a right for a woman to bear children or not. The results of the research show that women have the right of fertility based on the traditional evidences and having children is a mutual right between couples.

The allocation right (The right of appropriation) that is in fact the right to take advantage of and manipulate things which are not regarded as someone's property both traditionally and canonically, is mostly related to the objects without financial value; most of discussions on proving allocation right for such objects are related to impure things, defilements, and forbidden matters that on the one hand taking advantage of them is canonically forbidden and on the other hand they may have some halal (legal) advantages; however proving allocation right in other objects without financial value (e.g. broken pitcher, old and scrap objects, etc.) is not difficult and done based on judgment of the wise. The term allocation right is not often found in primary jurisprudential texts, rather its definition and related canonical orders are only found in discussions about “taking advantage of impure things, defilements, and forbidden matters”. Islamic jurisprudents believe in the continuity of “allocation right” with “license for taking advantage”; however, considering “license for taking advantage” and “license for selling” opinions are different regarding their continuity. Shiite jurisprudents do not believe in it, therefore in such cases they consider “gift” as a solution. However, in some Sunni denominations like Hanafite continuity between “license for taking advantage” and “license for selling” is accepted, so they consider selling of defilements and sometimes-impure things acceptable, because of some halal (legal) advantages existed in them. It is appeared that license for taking advantage of impure things, defilements, and forbidden matters must be restricted to situations of necessity and emergency when there is no other solution, so allocation right for them does not proved in situations that are not emergency.

The presumption of Ferash, is considered as one of the oldest and most used presumptions to prove lineage. This presumption is sometimes in conflict with judicial presumptions, such as the opinion of an expert, including the opinion of physiognomist, or the theory of forensic medicine, and sometimes it is in conflict with the same presumption, and it is where the wife had legal intercourse with two men and gave birth to a child who can be attributive to both. In the upcoming research, we are trying to answer this question with descriptive-analytic method which is the favored in the mentioned conflict? The result of the research is that the opinion of a physiognomist is a presumption, Shia jurists have not approved it, and Sunni jurists except Hanafi consider it valid. Both legal systems of Iran and Egypt do not accept the opinion of physiognomist, based on the Holy Sharia. On the other hand, accurate laboratory data in DNA testing is prioritized, because it is science-based and science is superior to suspicion resulting from Ferash presumption. In the conflict of the presumption of wedlock Ferash with another Ferash, the precedence of the second Ferash for attributing the child with the traditions from the Imams, which is the most important reason, and the principle of the delay of the incident has priority in Iranian law and Shia jurisprudence, and in Egyptian law and according to Abu Hanifah, the first Ferash takes precedence over the second Ferash.

Halving the spouse's property on divorce as one of the significant issues in Iran's legal system, assuming validity from the perspective of Imami jurists, has a strong jurisprudential support and foundations amongst the Sunnis too, one of which can be mentioned is the right of al-Kad and al-Sa'ayah. Now, in the case that a husband has increased his wife's property due to his wealth and behavior, is there any possibility for him to reject the condition of halving? According to the numerous reasons on the wife's financial independency and the unity of the criterion for the lack of effect of receiving quantum meruit on halving, in accordance with Iran's legal system and Imami jurisprudence, it can be claimed that the issue of increasing the wife's property will not have any effect on the legislator support for her, based on the condition of halving the husband's property on divorce (which is also examined in this article through a descriptive-analytic method and a comparative viewpoint). Although some believe that according to the rule of justice and fairness, such an increase has some effect on the condition of halving, so that the wife does not have any right to receive the half of her spouse's property, the rule of justice and fairness is not authentic in terms of jurisprudence and law.

The insolvency Khiyar, which is derived from Islamic jurisprudence and has been cited by jurists despite not being explicitly mentioned in the law, is an option that have been discredited in current law. Because the forthcoming research shows that, on the one hand, there is a lot of speculation about the scope of this Khiyar for every insolvent person, and on the other hand, the possibility of exercising this Khiyar against the insolvent person is in conflict with the rights of his creditors. In jurisprudential sources, the most important evidences for the existence of this Khiyar is the prophetic tradition that has not been studied and in the opinions of jurists who have been influenced by jurisprudential opinions, principles such as the necessity of contracts, the principle of equality between creditors have been ignored. The approach of this article is based on: The impossibility of invoking the insolvency Khiyar and even the impossibility of returning the goods in sale (without exercising the right of dissolution) against the insolvent person is based on observing the principle of equality between creditors and accepting the existence of entail for the seller by refusing to deliver the goods in sale.

One of the conditions for establishing preemption in Islamic jurisprudence and civil law is the definite ownership of the preemptor during the transaction of the copartner. One of the important challenges in Islamic Jurisprudence and legal system is that simply transferring preemptor before legal actions can be a proof of preemption forfeiture. The purpose of this article is to examine the issue that if the preemptor is the owner of the share during the sale of contribution not in cash, but before applying preemption, he transfers his share to another, the interference of the preemptor's knowledge and ignorance in the transaction of the partner's share, in preemption or the loss of preemption can be effective. This issue has been disputed among Islamic jurists and Iranian jurists, and the civil law does not have an explicit text to determine the law text on this issue. Descriptive-analytic method and use of library sources have been used in this research. The result of the present work, after reviewing and criticizing the opinions of Imamiyyah jurists and Arba'ah denominations and jurists and their reasons, is that if the transfer of the preemptor's share is done by sale and at the same time as the sale of contribution not in cash, the entire share will be transferred to another, this act of turning away the right is considered as one of the examples of implicit cancellation and preemption is canceled. On the other hand, if the preemptor is ignorant of the sale of contribution not in cash or if a part of his contribution transferred to another, his preemption still remains.

According to the general principle of faithfulness to the promise and the execution of the contract, the full implementation of the obligation intended by the legislator, and the violation of the contract or the failure to fulfil its provisions are accompanied by the application of guarantees that are included in the text of the law and leads to compensation for damages. The efforts of all legal systems, including Iran and Egypt are to implement the contract as much as possible, and in this research, an attempt is made to use a descriptive-analytical method, considering the divisibility of the right of dissolution of the contract, the rights of the contracting parties in case of non-implementation of a part of the contract or its contrary and unreasonable implementation, and also in case of having the right and the multiplicity or inheritance of the right of dissolution has been researched in the civil law of Iran and Egypt that in these circumstances (nullification or dissolution) the violation is only on the same part of the contract and the rest of the contract and the whole contract remain valid, unless the violation of a part of the contract causes a fundamental violation, in which case there is a right of dissolution the entire contract.

One of the less known principles which has been less approached in spite of its use in jurisprudence, law and principles of jurisprudence is the jurisprudential principle "Al-Saghet La Ya'ud" (what is extinguished shall not return). The interpretations of this principle and its uses in Imamiyyah and Sunni jurisprudence texts suggest some sort of discursiveness, which necessitates the investigation into this context more than ever, because this principle can take on special uses in jurisprudence and legal issues and contribute a lot to the solution of emerging and new problems. The present research was based on a descriptive-analytical method and the use of library resources according to four connotations put forward by jurists in relation to the rule " Al-Saghet La Ya'ud": 1- non-returning of the kind of the extinguished object, 2- non-returning of the extinguished object and person, 3- non-returning of the extinguished object or person at the time of being extinguished, 4- non-returning of the extinguished rights, of which the reasons of proving or disproving as well as the exclusions came under discussion. Similarly, regarding the principle “Zaval Al-mane” (impediment removal) and Al-Saghet (the extinguished), some discussions have come up as to the idea that impediment removal can be in force where the requirements of a judgment are available. Therefore, impeding causes can't be effective and the judgment can be enforced only after the removal of the impediment. Thus, the principle "the extinguished" is enforceable where the requisition of a judgment is obliterated, which means the distinguished judgment can by no means return due to the lack of requirements. As far as the choice of the impediment and the extinguished rule is concerned, the impediment more often prevails, because the origin of the uncertainty is indeed the doubt over the idea if the impediment only impedes the effect of the requirement, or it repudiates the requirements and prevents the restoration of it unless if some new causes arise. The former is certain but the latter is skeptical, and the principle implies the lack of the latter case.

Over time, placing prison in the category of the main punishment has reached a point where not only the goals that the prison was supposed to fulfill have not achieve, but also it has turned into a higher problem that caused many challenges for the prisoners, their families and the governments. The present research focused on de-prisoning from the perspective of the comparative jurisprudence of the Islamic Denominations and was carried out with the descriptive-analytical method and the method of collecting library and documentary information. The obvious result of this approach will be a new theory to reduce the ever-increasing population of prisons and prevent corruption and the consequences of imprisonment. Based on the findings of this study, the imprisonment can be considered as a broad meaning that includes putting a person under care, which we called "imprisonment in the general sense". On the other hand, taking into account that "imprisonment in the special sense" (confinement in a specific place) causes harm and is against self-sovereignty and the principle of personal punishment, and not only it does not usually lead to the realization of the desired goals and philosophy of the Shariah; On the contrary, it has effects against it and has shown its ineffectiveness in practice, "illegitimacy" can be accepted as a rule and the first principle about it. Based on this, if in a certain case, imprisonment is specified in the Shariah evidence, it is necessary to consider its alternative if it is optional, and if it is determined, other examples such as care with new tools and devices should be considered (imprisonment in the general sense); Except for rare cases where the definite necessity of imprisonment in the special sense without considering its function.

The influence of the knowledge of history and its events on various sciences is undeniable. Among these sciences is jurisprudence, which plays an important role in the personal and social relationships of humans. Although the majority of Muslim jurists have not made much use of historical events in their jurisprudential conclusions, in an unintended or unwritten way, these events, people, and sectarian views have had a significant impact on jurisprudence. This article intends to show examples of the role and influence of historical reports and events on Muslim jurisprudence by examining the pivots of early Islamic history. The question is what role did history play in expanding jurisprudence and documenting it, and how did a historical report or event become a jurisprudential ruling? It seems that various historical reports and events of the Prophet's life and the actions of the Companions and Caliphs have influenced the mentality of Muslim jurists, and sometimes they have stopped them from looking beyond history.