نشریه مبانی فقهی حقوق اسلامی
سال دوم شماره 1 (پیاپی 3، بهار و تابستان 1388)

The aim of this paper is to show that sporadic marriage was legal atbeginnings of Islam. Some people consider it as the practice before theIslam which the Islam accepted it and was the sign constitution. However,temporary marriage in all Islamic religious was accepted and was notrelated to just Shi a. Fore example, Ebne Hazm Andelesi (the main juristof Shi a) in jurisprudence of his book which named Almohalla admit thattemporary marriage was accepted at the beginning of Islam. But the sameas other jurisprudence of Sonni he abrogate it and believe that temporarymarriage is not permissible because the God forbid it till the lastjudgment.Shia is not accepting the abrogation of temporary marriage and accredit toconsensus of opinions. Over all, from the agreement and disagreementideas can find that there is some reality in both group but they did notclearly show the nature and practical application of temporary marriage.The author try to demonstrate the temporary marriage which may help thepeople observed it clearly.

At the beginning of the call of the prophets, religious teachingswere communicated differently and proportionally. However, afterthe institutionalization of any religion, religious scholards used toclassify the teachings establishing new disciplines with giving aspecil title to each of the classes. Two disciplines gasined muchimportance in the teachings of the religion of Islam.One is thetheology dealing with explanatiomn of Islamic doctrines, provingthe theories, and refuting spurious arguments. The other isjurisprudence dealing with the quality nof the behavior of thebelievers.The issues of these two disciplines have sometimes baesdon requirements mixed together and somre thological material haveincorporated jurisprudence. Enjoining the right and forbidding thewromng has a special position in this field. This is because it hasfoubnd a close relation with jurisprudence and little by littleconsidered as a jurisprudential issue.It has been discussed next toprayer and fasting whuich have mainly an individual aspect.However, this issue can be put into practice when the Imam of theMuslims assumes the reins. So it should be discussed consideringthis point.

This writing investigates the prescriptive judgement about surrogacy forwhich four theories are found including: permission, prohibition, apparentexemption and lawfulness. The said theories are based on the validImamites references. Those who believe in prohibition argue thatsurrogacy is illegal. They refer to sermons and arguments, and believe inthe necessity of keeping the pudendum safe, or taking care of if, also, theyargue about the prohibition of putting sperm in the others, wombs andthey think the kinship should be prevented, too. Some jurisprudentsbelieve in its being lawful based on permission and exemption principles.The fourth theory calls it contingent jast as a medical treatment and underspecific conditions. Having investigated the afore-mentioned theories andthe Imamites. Jurisprudents, beliefs and same dependable reasanings, weare led to believe that none of the sermons and narrations aboutprohibition believes in surrogacy and the third theory which is about theexemption, despite the existence of real prevention, is not clear-cut. Thelast theory has no investigatory basis, as it deals with public permission, ifneeded, and also because it presents no independent theory aboutsurrogacy. As a result, in this survey, we will be led to the second theory,that is, the lawfulness based on the real permission.

Obtaining gamete and its transfer through auxiliary ways ininsemination and fertilization is one of the new arising issueslinking medical technologies with jurisprudence, ethics,psychology, sociology, etc. Gamete as one of the benefits of genitalorgans is the principal element in producing human being.Therefore, transfer of gamete is an ethical, jurisprudential, and legalissue more than being a merely medical and scientific one.The transfer of gamete, although done out of reasonable and humangoals and motives, it may face serious challenges due to itsaffiliation with the owners, its special rules, and its legal andreligious consequences in various aspects. In case of presumption ofreasonable and legitimate benefits, separable benefits such asblood, hair, marrow, semen, and its products are capable ofownership and their sale would be valid. Considering the elementsof time and space in changing the usage of the ritually impureobjects is of high importance. Being ritually impure does not haverelevance in the prohibition of sale , nor is of the sufficient cause ofthe prohibition. Capability of an object to be owned depends on itslawful intended profits. Nowadays the reasonable profits of gameteis proven. However, according to divine law, the child born ofgamete is affiliated to the father and this right is not susceptible towaiving. Therefore, gamete lacks some of the essential elements ofproperty and thus lacks the qualifications of transaction.

Revisiting the causes and circumstances of tortious liability and in ajurisprudential approach, the present article studies theirinclusiveness and comprehensiveness. It is quite natural that the titleof “causes of liability “ makes the logical reader expect theircomprehensiveness. Basically, lack of comprehensiveness mayleave a serious harm to a methodological research. Causes ofliability in fact are circumstances bringing liability based on textualproofs, rational proofs , and common usages of the reasonable. Forinstance, liability in the “rule of prior possession” is based on unjustpossession, and in the two rules of destruction and causation arebased on imposing unjust damages directly or indirectly. Theapproach taken in this article may rely on the views of certain greatjurisprudents. For example, discussing the rule of prior possession,some have explicitly stated that most of the regulations of liabilityare based on the prevailing custom. Thus there is no solution but incustom. These regulations are also attributed to the divine law giverdue to his silence toward them. Some others have asserted that therule of destruction is not only a rule in divine law, but it is a rationalrule and one based on the practices of the reasonable. In view of thestructure of this discussion and the above mentioned views, theresearcher mostly adopts either of the following methods.a) He gives semantic expansion to the causes of liability with theirrequired evidence thus including all cases bringing liabilityregardless of their proofs.b) In addition to adopted causes, the researcher raises new ones tocover those not supported with previous causes. This liability relieson the verse of aggression, and rule of prohibition of detriment. Theauthor has taken here the first method. Indicating that the textualand traditional evidence of the causes especially the rule of priorpossession are seriously argued and criticized by somejurisprudents, the author has considered the common usages of thereasonable and rational dictate as the most important and mostconvincing jurisprudential evidence for causes od liability.Therefore the semantic expansion would not face with the problemof expansion in the signification of textual proof. Relying on nontextualproofs in a second step, the author has revisited the causes ofliability trying to give a semantic expansion in the above mentionedcauses covering all causes of liability.

Family is the most essential and the most important human beinggroup with the longest historical record. Love of wife and husbandtoward each other and the affection of parents towards children arethe origin of the formation of the first social institution each ofwhose members experience ethical and legal solidarity preparingthemselves for entering the society. Wife and husband minglemorality with love in order to pave the ground for promoting thelevel of the quality of their emotional life and provide anatmosphere rich in unity and solidarity towards physical andspiritual growth of children. Thus ethical teachings should beconsidered the most important source for the dynamism of thefamily governing the emotional and social relations of its members.Some of ethical rules and teachings have gradually been manifestedas legal rules. The duty of spouses in good behavior and associationand their collaboration towards strengthening the foundations of thefamily and bringing up children is a legal proposition manifested inthe context of the development of ethical rules. The influence ofethics on the legal rules of family law is so wide and deep thatethics should not only be considered as the constituent elements offamily law, but it may be considered first and the foremost in thisfield. Ethical rules play their role in strengthening the foundationsof family to the same extent that they have a role in its formation.Thus ethical rules are a support for the protection of familyinstitution. Recommendation to peace and reconciliation throughfamily counseling centers and the institution of arbitration,implementing justice between the wives, separation and divorce ina moral way, are among the ethical approaches in the “protection offamily “bill. Implementation of ethical rules and principles in caseof a legal vacuum, provision of specialized prosecutors office of thefamily , family police, and the institution of family social workersfamiliar with ethical and social skills are among the mechanisms ofinstitutionalization of ethical obligations absent in the protection offamily bill.