مجله فقه مقارن
پیاپی 15 (بهار و تابستان 1399)

The decrees which are issued by the Wali al-Faqih in accordance with the expediencies and requirements of the human society, observing some regulations, are called the governmental decrees; and the absolute expediencies which are considered as expediencies for which there is no text, are called consideration of public interests (Masalih al-Mursalah) in the Islamic law. In this research, which is conducted through a descriptive-analytical method, we are going to assess the governmental decrees with consideration of public interests (Masalih al-Mursalah), in order to clarify the contingency aspects. The findings show that governmental decrees and consideration of public interests, despite the differences in views, on the fundamental aspects such as reason, expediency and objectives of the law, are compatible with each other, and certain religious and rational frameworks cannot be deprived in them. Therefore, the compromise in Shiite jurisprudence can be the examples of reason are based on the rational tradition. In the community, which is the place of the events of the Almighty, the duty to meet the needs of the obligated and to eliminate their distrust to the mujtahids, the necessity of the explanation of this issue, in addition to the purpose of the approximation of religions and views, is doubled.

In all legal systems, the items of the contract are binding for both parties; however, sometimes unpredictable conditions like war, sanction, etc. take place which dramatically disturb the economic balance and equilibrium and although enforcing the commitment is not impossible, it is followed by much difficulty and loss. In such cases judicial moderation of the contract is suggested that the rule of prohibition of detriment, rule of distress and constriction negation, Ja’iha Hadiths, cancelling the rent due to lessor and lessee’s excuse and the rule of “العقود تابعه للقصود” law have been applied to prove it. With the carried out investigations it can be concluded that Ja’iha Hadiths and canceling the rent contract due to the lessor or lessee’s excuse have not been accepted by Imamiyyah and among the Sunni schools of thought, Hanafis and Shafi‘ies do not believe in Ja’iha Hadiths. Malikis and Hanbalis are not in agreement about the degree of Ja’iha and Malekis’ statement is more adaptable to Judicial Moderation. Moreover, the majority of Shafi‘i, Hanbali and Maliki Jurists do not consider the lessor and lessee’s excuse as a cause for cancellation, but in Hanafis’ opinion it causes cancellation that in any case this excuse is not capable of justifying judicial moderation of the contract, since even in case it is accepted, it causes the contract cancellation not its moderation.

The attempt to fully compensate for the losses incurred by the victims may be seen as the most central principle of civil liability. The origin for many developments in the field of civil liability has been the attempt to maximum compensation for losses and not leaving any damages to persons without remedy. An examination of the criteria of tortious liability in Islamic jurisprudence shows that this system of thought and its capacities are rich enough to fully compensate for the undue losses inflicted on persons. However, some legal writers consider the scope of material compensable losses in Islamic jurisprudence to be very limited and they believe that moving around the jurisprudence circuit in the field of civil liability would mean leaving many material losses to individuals without compensation. Investigating the reasons and evidences of this claim and a comprehensive examination of the subject in various  Islamic schools of thought shows that this theory disregards the reality of the views expressed in jurisprudence of  Islamic schools of thought, because this limitation of the idea for ​​compensation is mainly due to the Hanafi jurisprudence, which sometimes due to its narrow interpretation of considering objects as property and sometimes for specific jurisprudential reasons or specific interpretation of certain rules in Islamic jurisprudence, has practically limited the circle of the losses to financial affairs, that cannot be generalized to all Islamic sects. Though, the scope for recoverable financial losses are not the same in other Islamic schools of thought.

Although the existence of Qisas (retaliation) is an undeniable principle in criminal Islamic jurisprudence, there are inconsistencies about its conditions and rules among jurisprudents of different schools of thought. The issue of avengers of blood’s and injured party’s expanse of right is one of these inconsistencies in the quality of retaliation of the murderer or the criminal. There comes out a question that whether the right of retaliation is only limited to the effect of crime or it is extended to the similarity in quality and characteristics of crime? In other words, are avengers of blood or the injured party allowed to retaliate murderer or criminal to the same quality as she/he has committed the murder or crime? Answering such question is also important from other aspects, since two issues of “retaliation through organ donation” and “anesthetization of organs during retaliation” are totally consistent with the issue of similarity in the quality of retaliation enforcement. The findings of this descriptive-analytic study showed that although famous Imami, Hanafi and Hanbali jurisprudences have not credited similarity, represented evidences are not able to confirm such assertion and similarity is documented to stronger evidences.

The respect for the right to private property and the protection of it, in all legislative systems is one of the goals of the legislature, and even in the opinion of some philosophers of the social contract, it is the only necessity to justify the establishment of government and the abandonment of part of individual liberty and its transfer to the government. The protection of souls, generations, and rationality, along with the preservation of religion, is mentioned as one of the Objectives of Shariah Law (Maqasid al-Shariah) in the Islamic criminal law. At the same time, the Treasury of Muslims is the mainstay of the economic system of the country, which must be protected from theft and abuse. In the Islamic criminal law, the violation of the right to private property of individuals is subject to extreme penalties in order to prevent unfairness and, consequently, economic corruption in society. However, the different interpretations of the title and instances of public treasury and the existence of some doubts as to adaption between the definition and conditions of the theft of private property to the capture of public treasury, has led some jurists to consider this crime as Haddi Theft and others have not considered it as Haddi Theft but as Ta‘ziri Theft and some others have presented some specific details on their jurisprudential approach in this regard. The legislator has not considered the crime to be Haddi Theft, however, in other ways, under the title of spreading corruption on Earth or through different Ta‘ziri punishments, this crime has been considered by the specific criminal support of the legislator. The preferred verdict is that if someone steals from the public property or treasury of Muslims, he should be punished by Hadd if there are the conditions of the Haddi Theft.

Due to different opinions on the characteristics of growth in Islamic jurisprudence, analysis and interpretation of such opinions seems inevitable and essential. Considering such a necessity, the present paper has attempted to clarify the concept of growth, mechanisms of determining growth and the relationship between growth, maturity and wisdom. The paper has also addressed the significance of growth in civil and criminal issues and defined concepts such as perfection of wisdom on the basis of Islamic jurisprudence. The paper has ultimately dealt with foundations and evidences of necessity of determining growth in the fulfillment of criminal liability. The findings indicate that growth and maturity are two different concepts. Growth is the outcome of perfection of wisdom and intellect while maturity is the outcome of perfection of body and physical abilities. Hence, the criterion for the fulfillment of liability (civil and criminal) should be growth rather than maturity. Furthermore, rational evidence shows that criminal issues are much more important than financial issues, so determining growth in criminal affairs is as significant as determining it in financial issues.

Transference of gamete after the death of couples that has actually come to realization thanks to technological advances and assisted-reproduction techniques is one of the recent developments in the field of medicine. In this technique, physicians use the gamete of the deceased person to fertilize the surviving person. Drawing on ijtihadic reasoning, leading Imamite and Sunnite jurists have argued that the legitimacy or illegitimacy of this act depends on the continuity of matrimony after death and have actually used this argument as a basis to determine if the afore-mentioned act is legally permissible or not. Regardless of the legitimacy or permissibility of the afore-mentioned act, determination of the lineage of the child resulting from Post-mortem insemination which actually has a significant effect on the child’s financial and non-financial rights such as inheritance, alimony, and custody, guardianship and privity (mahramiyyat), is of vital importance. Thus, in the present study attempts are made to explore the religious decrees issued in this regard from the perspective of Islamic schools of thought. Using library studies and adopting an analytical-descriptive approach, the researcher has finally concluded that insomuch as the permissibility or legitimacy of the aforesaid practice has no effect on the in-law relationships and given that this relationship is incipient in nature, a child born as result of Post-mortem insemination should be religiously subjected to relationship by blood and enjoy all the rights thereof.

A group of Imami jurists, based on the well-known definition in which selling (bay‘) is defined as “ownership of a definite object instead of a definite alternative”, have opposed the purchase and sale of “financial rights” due to its non-objectivity. Among Sunni jurists, Hanafis have also considered the sale of rights as a problem due to its lack of financial value; while the scholars of Maliki, Shafi‘i and Hanbali jurisprudence believe in the validity of the sale of intangible property, such as interests and rights. In addition, some other Imami jurists have confirmed consideration of financial rights as the price of a sale; they perceived the selling of such rights as a price within the concept of sale. This research, which has been conducted through an analytical-descriptive and comparative method, aims at investigating the possibility or impossibility of selling financial rights in the jurisprudence of Islamic schools of thought. Since there is no certain definition of “sale” (bay‘) or “property” (mal) in the Islamic Shariah, and the explanation of the meaning and nature of the two has been left to custom, it is necessary to analyze the nature of sale and property with the presence of modern custom and re-examination of the proponents and opponents’ arguments on the sale of financial rights. The findings of the research, after reviewing the jurisprudential principles on the sale of financial rights indicate that the theory correctness of selling such properties is valid.

Endowment is of a particular status in Muslim societies and endowers play an effective role in promoting Islamic rituals and furthering the governmental objectives. Sometimes it happens that the endowers conclude the contract of the endowment in a way that the first receivers of the endowment are valid and existent while the next ones are invalid, or in a case where the endowment to the next receivers becomes illegitimate as in endowment to the infidels. If this is the case, there is a disagreement between Imami jurists and Sunni thinkers over the status of the endowed property after the death of the endower or the beneficiary. The jurists who provide response fall into these groups: Some of them consider the contract intrinsically invalid and illegitimate, while some call it valid. The ones who consider it invalid are of two views: 1. the endowed property on the account of the durability of the endowment contract should be devoted to the charity. 2. The endowed property should be returned to the heirs of the beneficiary so that the endowment would find continuation. Results of the study demonstrate that the contract of endowment is abolished by the termination of the ones the property is devoted to and the endowed property is given back to the endowers. The present study has been conducted through a descriptive-analytic method and by means of reliance on the library resources.

The patient’s marriage which leads to death and its effects, is one of the matters of dispute between Imami and Sunni jurisprudents. In order to prevent lose on heirs by the husband, Imami jurisprudents have considered sexual intercourse as the condition for the validity of marriage contract and accruence of dowry and inheritance, and in the case of the lack of sexual intercourse and death of the patient, the marriage contract is considered invalid. However, real invalidity is not intended here, but the intention is that the rules of the marriage contract like dowry, inheritance, viduity period or Iddah (waiting term) of death do not apply to marriage; because if real invalidity was intended, it would lead to contradiction and circularity, whereas Imami jurisprudents have not considered sexual intercourse as the condition for the validity of sick woman’s marriage. Most of Sunni jurisprudents, except Maliki jurists, have considered marriage of sick man or woman valid; whether the marriage has been consummated or not. In their view, in the case of the husband’s death, the wife deserves to receive the specified marriage portion and inheritance and the husband also deserves inheritance in case of wife’s death. The Maliki jurists distinguished the case in which the woman is aware of the man’s illness from the case in which she is not aware of. They believe that marriage contracts are void in both cases, but in the absence of awareness, the wife can receive her dowry after the husband’s recovery from the disease.