فصلنامه پژوهش های فقه و حقوق اسلامی
سال پانزدهم شماره 4 (پیاپی 57، پاییز 1398)

The necessity of Islamic banking is clear to all today, because the impact and the role of banks are so significant in economic aspects and indeed sometimes it leads to economic behavior of the mass to become truly religious; then, they require banks to perform according to religion and jurisprudential legislation. While the attempts in this regard are considerable and worthy of appreciation, they come across challenges in terms of the education of jurisprudential rules and issues such as superficiality of teachings, lack of attempt to make teachings inclusive, personalization behavior, and the lack of a robust basis upon strong and integrated thinking and philosophical pillars. Sometimes, during a time span, the enthusiasm in implementing Islamic banking is completely tangible, while some other times, there is no attempt. Investment in relevant studies also follows the same path; sometimes a bulk of fund is allocated for such studies and some other times the fund reaches the least possible amount. As a result, teaching jurisprudential issues deeply and inclusively, in addition to emphasizing the research must stand upon a fixed and unchanged foundation, and follow an ascending and continuous line. Only in such conditions, along with solving other problems, it is hopeful that Islamic economy is executed in the manner that bank contracts do not solely remain in the formal mode any more.

Women's employment has become increasingly unavoidable in today's world. However, it is impermissible for a wife to go out for work except with her husband's permission, otherwise it can be considered as her disobedience or her refusal to fulfil her marital duties "NASHUZ''. Concerning the wife's permission restriction to get out of the house, a group of Islamic jurists believes in the absolute necessity of receiving such permission from the male spouse while another group argues that it is permissible for the female spouse to go out unless it contradicts with her "absolute sexual submission". After all, the female spouse can get out of the house and work if needed. All Islamic religious parties are in consensus that if the female spouse employment - whether at home or away - is in full contradiction with the absolute right of male spouse regarding wife's sexual submission, it basically needs the consent of the male spouse in this respect. Shia and Sunni jurists share the same view that female spouse employment should not be conflicted with the interests of the family, nor with the dignity of both spouses, nor with the duty of parenting and strengthening the family. Having responsibility for providing care and support for the family, the male spouse can monitor and manage his wife's commute. Furthermore, according to the principle of free will, the female spouse can take possession of her properties while her husband has no right to interfere in her personal affairs, although the consent of her husband is considered to be a virtue. The employment option and the permission to get out of the house, as the condition of marriage, can be included in the prenuptial agreement or marriage contract by the female spouse.

In the recent decades, criminal policy as a set of measures to control criminal phenomenon has been changed remarkably influenced by the approaches of law schools and theories of criminologists and its widespread concept has been taken into consideration. However, this view is not unprecedented in criminal law history and it has been considered in the Islamic criminal justice especially during the reign of Imam Ali (Peace be upon him). The concordance of findings of contemporary criminologists and law schools with the viewpoints of that criminologist jurist shows this fact. His attention to the categories of prevention, rehabilitation, civil society capabilities, the principle of legality and minimal intervention of criminal law and in brief, special attention to human dignity has caused his penal policies to still meet the needs of modern human beings and to be considered as a unique policy. Therefore, regarding the peaceful coexistence of Imamiyeh criminal law with criminological theoretical data and practical experiences of criminal policy, it’s worthy that the policies of modern criminal jurisprudence follow all the accepted and emphasized principles of Islamic law system for the title “criminal policy of Islam” to be applied.

Medical team of concise cause is among the most difficult issues of jurisprudence. Legal causation relationship is of high significance and there is no clear and certain answer according to that in law systems. In Iran law, there is a special attention towards scientific regulations of choice, paying to treasure, drawing rule, justice and fair rule and liability distribution and in England law, there is attention towards some theories like the rule of all or nothing and financial cooperation, damage and harm risk, simultaneous causation and extensive corporate responsibility. Concise cause in England law is of relative liability and proving the subject is of high significance. The governor proceeds to develop rules according to intrinsic and transverse regulations of law using Islamic law so that the task of courts is defined.

The main axis of this writing and what causes dispute are that in some cases after the fact of two or more successive transactions towards the object of transaction, the transferor of ownership measures for termination of base transaction. Lawyers and tribunals have not consensus in confronting such a case and concerning the circumstances of possession of first purchaser and consecutive possessors, so they issue contradictory judgments that will harm the rights of the third party beneficiary. Hesitation about set of related articles to this subject in civil code especially article 454 and also scrutiny in scholars and lawyers make it clear that legislature follows opinions of lawyers and scholars that separate legal options and contractual options from each other and makes his possessions not operative but it should be noted about executing  legal options by beneficiary of an option that the above - mentioned possession is in lieu of property destruction of contract subject due to validity of possessions by the customer. Therefore, vendor is merely entitled of counterfeit. We tried to consider that various promises and divergence of Islamic jurisprudence and subjected law are classified according to nature of aforesaid possession. They are analyzed by explaining foundations and their side effects and relying on legal provisions and rules and they are also explained correctly. So, the influence of the present analyze on application step (judicial precedent) is undeniable.

All people in the Islamic community need to refer to the religious scholars. In most instances, these scholars are aging, mature and familiar with the principles of religion. If religious scholars are adult, assuming that other condition is met and in fact there is a consensus among jurisprudents over the possibility of allowing people to refer to them. But in the absence of the adulthood requirement, is it possible to conform to the teachings of such a jurisprudent according to demonstrative jurisprudence? In this context, there are three opinions among Shiite jurisprudents. The famous opinion considers adulthood to be a requirement. Others hold that this requirement is compatible with precaution while the third opinion, which belongs to contemporary jurisprudents, does not consider it as a requirement. The findings of this study, which have been done in a descriptive-analytical manner, prove that based on reason and the narrations in Taqlid section, the reasons are provided by the first two opinions and it is possible to conform to the teachings of a non-adult jurisprudent. Moreover, the third opinion which is not famous has superiority over others.

Observing Human Rights is one of the main obligations of the institutions affiliated with the criminal justice system. In this system, bailiffs are representatives tasked with detection of a crime. These officers are required to observe the principles of Human Rights when detecting a crime. The principles of Human Rights which should be observed regarding the defendants at the stage of crime detection include: respecting the rights of the detainee, infrastructure optimization, the principle of respect for the dignity, honor and personality of individuals, the principle of respect for the freedom of individuals and the prohibition of arbitrary detention of defendants, and the principle of respect for privacy. In addition, respecting the rights of detainees include: observing the principle of the legitimacy of criminal interrogation, the right to have an attorney from the beginning of the proceedings, and consideration of the presumption of innocence at the stage of crime detection. In addition to Islamic jurisprudential principles and sources, some international treaties have been signed in this regard, including the Universal Declaration of Human Rights (1948), which contains the doctrines outlined in Islam. In addition to incorporating these principles into the Constitution under Articles 22, 27, 37, 38, etc. The Iranian legislature has addressed this issue in ordinary laws, including both substantive and procedural law. The Code of Criminal Procedure incorporates these principles by making significant adjustments in their foundations and elements.

The intellectual bases of Salafi Takfiri are the preconditions which the group's actions and views are based on. The most important legal-political basis of this currents is the revival of the Islamic caliphate, with the modeling of Rashidun Caliphates. They don’t tolerate any political system in a format other than this, and by dividing the communities into Dar al-iman and Dar al-Kufar, they consider all modern societies. This view has caused the decline of the caliphate status, and the launch of this approach should be accompanied by specific actions and by creating the necessary conditions and measures. From the point of view of Takfiri Salafism, one of the important duties of Muslims towards Dar al-Islam is the necessity of immigration as a collective obligation. But, according to the verses and prophetic tradition, the cause of necessity of emigration is to achieve a place where to serve God and to perform one’s duties. Jihad is the most basic solution of Takfiri Salafi leaders to achieve their desired goals, including the establishment of an Islamic government, and in this regard, they have given to the every one the warrant for jihad, and imitation in religious rules is not permissible. They ignore that this is a popular interpretation of jihad, and that Imitation has existed since early Islamic history.

Iran's legislator, in  2013, for the first time provided the "conflict of evidences in prove of criminal proceeding" in some articles of Islamic Penal Code. In this respect without mention of occurrence terms, some cases of conflicts of evidences are mentioned, and some measures are provided. Although this matter is applicable as the first step to formalization of this conflict, whether in occurrence term or transitional solutions, it depends on jurisprudential-legal notions about conflict of proofs of inference as the root of conflict principles. So, this research in a descriptive-analytical manner seeks to study these point of views, and their convergence or divergence against conflicts of evidences of substantiation of claim. The findings shows that required terms of this conflict, whether for inference of religious laws or on evidences of substantiation of claims are the same; however solutions need more consideration in proof of criminal claim than procedure of inference of religious laws.