نشریه قرآن، فقه و حقوق اسلامی
پیاپی 1 (پاییز و زمستان 1393)

In the present article, the author discusses “marriage” with women from the people of the book (′Ahl al-Kitāb) only from a Quranic view and apart from hadiths quoted from the Infallible Imams (A.S.) in this regard. Of course, hadiths in which the Quranic verses have been mentioned will be referred to, if necessary. From such studies, it becomes clear that, from among the verses of lawfulness, it is only the verse 5 of the Chapter al-Ma’idah (And [lawful in marriage are] chaste women from among the believers and chaste women from among those who were given the Scripture before you) in which a perfect permission may be found; in what the verses suggesting unlawfulness signify, however, may be doubted. Apart from objections which may be put forth against referring to the verses suggesting unlawfulness, what that solves our problem is that all these verses are general ones, while the verse in the Chapter al-Ma’idah is a particular one. On the other hand, in absolute generality and peculiarity, peculiar is conventionally prior to general. Thus, generalities about prohibition of marriage with all disbelievers are limited (specified) by the above verse and the phrase “chaste women from among those who were given the Scripture” according to which marriage is permitted with a group of disbelievers (those who were given the Scripture before Muslims); and now that there are a conventional agreement, there is no need to search for abrogated verses or to discuss “conflict” between verses; and, lawfulness of marriage with the women from the people of the book may be inferred without any problem.

The present article is devoted to study the term “Muđārr” mentioned in the verse 12 of the Chapter al-Nisa. When we refer to the existing studies, we see that there are serious conflicting views in interpreting this part of the verse despite the weak relating resources. These studies also did not discuss all aspects of the verse. For example, they have not made a distinction between the concept and instance of “Muđārr”; nor have they specified whether the negatuion of “Muđārr” is declaratory or obligatory and whether it concerns only the “will” or the “debt”. Finally, they have not specified that whether it concerns this part of the verse or includes all aspects of the inheritance.

Most jurists are of the opinion that the verse “Do not cooperate in sin and enmity” indicates prohibition of cooperation in sin and aggression. Based on this opinion, some jurists consider contracts which are instances of cooperation in sin and that as being invalid contracts. In the present article, this idea has been criticized and it has been said that the true opinion is “the prohibition indicated in the verse concerns a universal and total prohibition (Tahrim) and dislike (karaha)”.

According to the Islamic Jurisprudence, in mere error murder or injury or defect of limb, the paternal-maternal or parental relatives are responsible to pay Diya (blood-money). At the first sight, this seems to be against the principle of individual responsibility which has been emphasized in Quranic verses like: “No bearer shall bear another’s burden” and “Every soul is hostage to what it has earned”. On the other hand, though the prevalent opinion is that responsibility of paternal relatives is a declaratory law, some scholarsconsider it as an obligatory one, referring to the Holy Qur’an and some  hadiths. . Relying on the noble verses of the Holy Qur’an, the author of the present article studies the legitimacy or illegitimacy of the above law and discusses whether it is declaratory or obligatory.

Stoning is one of the Islamic punishments, which has been specified for unlawful sexual intercourse between unmarried Muslim. Some scholars, with different motivations, have tried to consider it as a non-Islamic punishment. More importantly, in their studies, they have accused sometimes the discipline of jurisprudence and some other times the jurists! Since the most important resource of these studies is the Holy Quran, relying upon the noble verses of the Holy Quran the author of the present article tries to find the verdict about stoning in the Holy Quran; and then, based on what he has found in his search, he criticizes the competing opinions and shows that the verdict of stoning, as a primary verdict and apart from socio-political issues and secondary verdicts, has its roots in the Holy Quran. Thus, neither the Holy Quran nor the jurists may be accused.

Usually some disagreements may emerge in the relations between spouses which may result in divorce. The Holy Quran has called these disagreements “shiqaq” (breakdown) and recommended to specify two arbitrators, one by wife and one by husband, to settle the disagreement. Concerning the nature of arbitration, some juridical opinions have been put forth; most eminent jurists have deemed it as “tahkim” (arbitration), and some others have considered it as “tawkil” (power of attorney). While studying and assessing the two above opinions, the author of the present article puts forth a third opinion called “expertise”.

According to the single clause bill of the amendments to divorce law enacted in 1371, to pronounce a divorce formula (whether it is requested by husband or it is based on mutual agreement), a certification should be received from the court according to incompatibility. The court issues such a certification based on the opinions of arbitrators. In this article, the verse 35 of the Chapter al-Nisa has been referred to. If the exegetical and juridical issues put forth about this verse are taken into account, then it may be said that, in formulating the above article, the legislator has accepted the well-known opinion of the jurists according to which, in family claims, there is no need to observe formalities, arbitrators should be chosen, the scope of their tasks should be specified, and absence of spouses has no impact on the ratification of the verdict of arbitrators. Concerning issues such as choosing arbitrators from among relatives of spouses (whether it is necessary or not), conditions of arbitrators and necessity of payment to them, requirements of the age and interests of the society have been taken into account, in addition to the well-known opinion of jurists.