نشریه فقه و مبانی حقوق اسلامی
سال پنجاه و سوم شماره 2 (پاییز و زمستان 1399)

The legitimacy of creating a unilateral obligation is a disputed matter. According to the opponents, non-recognition of such institution in the law, violation of the dignity, guardianship over the obligee and violation of his independence prevent its acceptance. According to the proponents, such institution can be ruled as legitimate according to legal principles and social necessities, such as the rule of will, justice, social realities, donation of unilateral possession, presumption consent, and necessity of facilitating donations. This article, while preferring the views of the proponents, considers the matter as a case beyond law and jurisprudence and related to the philosophy of law. In England, there are various opinions in favor of the legitimacy of this institution. In Iran, most judges have judged it as legitimate. The basis of acceptance in the two countries is the sovereignty and freedom of will and the principle of irrevocable and correctness in the unilateral legal act.

Negation of constriction rule (qā‘ida-yi naf-yi ḥaraj) is one of the indisputable and imtinānī (state or quality of being beholden) rules which, by ruling on the initial arguments, removes the obligation to perform difficult tasks. There is no doubt in the rule of ḥaraj over obligations, but no consensus has been reached on its relation to the basic arguments of prohibitions. Some jurists are seemingly declaring the rule of the above-mentioned provision on the arguments of prohibitions, according to which the obligated person can commit prohibitions based on constrictions (ḥaraj). This view will bring about unacceptable consequences in jurisprudence and is incompatible with morality. In this thesis, while stating the arguments of the proponents of this statement, its principles have been criticized and evaluated. Considering the non-application of the argument of no constriction (lā ḥaraj) to non-existent matters and also, taking into account the evidences of urgency, it seems that the arguments for prohibitions (muḥarramāt) are specifically beyond the scope of the mentioned rule. In case of doubt, the non-elimination of the arguments of prohibitions will be considered.

Muḥāraba is considered as one of the crimes for which the holy shari‘a has set a limit for its punishment. Muḥārib commits murder, injury, looting property, and disowning security by pulling gun on people and his penalty is hanging, amputating hand and foot, and exiling. However, jurists had two different perspectives in selecting four types of crimes since long ago, some of which believe that a judge can select one of the four crimes, which is known as takhyīr approach, while others express that observing the proportion between crime and punishment determines the kind of penalty, instead of the judge's choice, which is known as tartīb (order) approach. Based on the article 283 in Islamic penal code, the judge can select each of the four cases. The results of the present study indicated that the harmonization between the tartīb (order) approach with the rule of justice and fairness, and unity of precedent by assessing the reasons of parties and using rational and narrative evidences, which can be a useful support for correcting Islamic penal code and a step for clarifying issued judicial rulings.

From among four reasons, the lowest identical point is about wisdom. The various meanings of this word and its position not being elaborated in the chapters of the principles of jurisprudence have increased the ground for unfolding misunderstanding. In this situation separate examination of the views of each expert can reduce the probability of being ensnared in equivocation and help reaching mutual understanding. Mullah Ahmad Narāqī, one of the important uṣūlīs in the early period of the revival of uṣūl (principles of jurisprudence), meticulously discusses the dimensions of reasons for wisdom. But his ideas have been less noticed. Despite accepting the authority of wisdom and its theological and uṣūlī bases, he has expressed contemplative conditions for invoking this reason and has important considerations about the rule of concomitance, whose result is the systematization of the ruling by means of wisdom and he jurisprudent's adherence to them reduces the efficiency of wisdom in drawing inference. Narāqī has also criticized the invocations of other jurists to reason by relying on his uṣūlī principles. In this paper, with a special approach to a lesser known work of Narāqī, his views and critiques about the reason of wisdom are discussed.

Since retribution is a non-financial right, and each right has different effects such as resignation, abrogation, transfer, etc., talking about the possibility of realization or non-realization of transferring the right of retribution is the main question of this article. That the claimants of the right of retribution have the opportunity to manifest all the effects of the right or they can only seek retribution is something that needs research. Many jurisprudential and legal sources regarding the development of the authority in the form of transferring of the right of retribution have not considered it as among their authority, whereas some of these sources have implicitly considered its possibility. By researching and examining the transferability, it can be realized that since it causes the right of retribution in a contingent manner and its consistency is not dependent upon the claimant of blood, some effects of the right, such as transferability, are entailed thereby.

By famous ignoring it is meant that renowned majority of jurists despite the knowledge of a hadith of a sound sanad, have ignored and decreed against it. From the standpoint of many jurisprudents, the renowned avoidance of the sanad of a hadith by the earlier scholars causes its weakness; however, their ignorance of hadith’s implication is not offensive. On the contrary, some other jurisprudents believe that the renowned avoidance of the sanad or implication is not regarded as offensive and insist on reasoning authority of hadith. This article is carried on by regarding the influence of these two prospective in issuing different decrees. With a strict analyzing, criticizing and studying the presentation of evidences on authority or non-authority of renowned avoidance principle, it is concluded that the renowned avoidance, whether regarding the sanad itself or regarding its implication, does not cause any sort of offense.

According to "lien" the wife (zawja) can refuse to fulfill her duties toward her husband, so long as she has not received her marriage portion (dower). It is based on verses, traditions, and the similarity of marriage contract and commutative contracts. Nevertheless the legality of "lien" is controversial. Supposing that it is legitimate, the domain of "lien" is important. Most of the jurisconsults believe that the domain of this right is wedlock. So the wife must obey her husband, and exceptionally she is allowed not to obey him in wedlock in order to receive her dower. Unfortunately, 718 procedural unity vote has developed the domain of "lien" which causes wife not to obey her husband at all and deserve alimony at the same time. On the other hand, 708 procedural unity vote says that the installment of the dower does not affect the "lien". The viewpoint of the majority and paying attention to the husband's hardship for delivery of the dower to his wife,  result in the observance of the rights of the married couple and also the right of the husband for continuation of family life.

Article 279 of Islamic Penal Code regards “creating insecurity in the region” as result and final element of muḥāraba. According to the relevant jurisprudential principles, this phrase includes creating an atmosphere of fear and deprivation of public security. The legislature has laid down the “intention to kill, robbery, or rape, or intimidating people” as mens rea to that. Intimidating people is intention of a part of result intention. And the former three intentions are in fact specific motivations. In addition to the objections of writing the law, the legislature’s standpoint concerning the final element of muḥāraba is fundamentally criticized. Because according to Qur’anic and hadith evidences and some Shi’a jurists’ opinions, muḥārib must have at least stolen a property. The above-mentioned article has enjoined capital punishment for the one who has not committed murder, robbery or rape, regardless of the rule of “proving guilt beyond a reasonable doubt” (darā’) and “prudence in bloods“ (damā’) and based on confusion between the principles of Sheikh Mufīd and Sheikh Ṭūsī.

Iranian civil law, which is basically formed by the analysis and interpretation of Iranian civil code, is unable to explain and determine the underlying theories (theory of property transferring or theory of obligation) in the field of contracts and non-contractual commitments. Heterogeneous adaptations of French Civil Code, Islamic jurisprudence and Swiss Law led to conflicts in the provisions of the Iranian Civil Code.  In this article, an attempt is made to examine the view of jurists as an effective factor in regulating the articles of civil code on the acceptance or non-acceptance of one of the two theories. It seems that many provisions of the Civil Code are based on the theory of property transferring accepted by the Islamic jurists, and in order to resolve the conflict in the provisions of this code, it is necessary to amend some provisions that are apparently based on the French theory of obligation.

Majority of jurists believe that denial of confession is not acceptable, except in the case of murder and stoning, and have ordered the execution of ḥadd and the legislature is subject to the same view. Another group considers the denial of confession to cause the Imam to choose performing ḥadd. The third theory considers denial of confession acceptable and causes ḥadd to quash, just like the case with stoning and murder. This article while critically studying the foundations of existing perspectives, accepts recourse to confession to a certain degree, after analyzing its documentation (ijmā‘, narration of jamīl, the rule of dar’, assimilation of denial after confession with repentance, tolerance of ḥudūd) presents tanqīh-i manāṭ (refining reason) and the legislator's attention to the issue of blood as a new reason for this theory in confirmation of it and accordingly, it proposes to amend article 173 of the Islamic Penal Code.

Legal personality is one of the newly-emerged legal issues in Imamī jurisprudence that has been the subject of controversy among jurists. This article addresses the validation of the legal personality of zakāt and other financial institutions according to the jurists' fatwās. The existence of rational credit is sufficient to give credit to the legal personality of financial institutions, especially zakat, and there is no need for the non-hindrance of this credit, unlike other rational structures. Financial institutions act in accordance with what the Shari'a, in today's terms, provides for them as articles of association. In the executive branch, the legal personality of Islamic financial institutions is legitimized by considering the province as the ruler and in his absence the province of the believers. By accepting legal personality in zakāt and other financial institutions, examples emerge in Islamic jurisprudence as institutions with legal personality that have previously been questioned or denied by jurists. Finally, the relationship of these legal entities with public treasury has been examined and this relationship has been drawn as the relationship of parent companies with subsidiaries.

In Islamic and Iranian tradition, virginity is desirable and equal to chastity, merit and decency, so most men consider this chastity as a necessity to start a family. Although lack of virginity is not one of indisputable defects in wives in Shari‘a, but the question of this study is what legal sanction the lack of virginity ensues? Jurists have different views on the lack of this attribute; some consider the right to terminate marriage and others consider it as a right to reduction in dowry, also some believe in detailed specification (tafṣīl). Most lawyers suppose that it would be subject to article 1128 of Iranian Civil Code and one of the reasons for termination of marriage.  Most legal writers have not discussed about the status of dowry if the contract is not terminated but Islamic jurisprudence and tradition show that If the right of termination does not exist or is not used, the reduction of the dowry by the ratio of the difference between the dowry of the virgin women and the dowry of the non-virgin is the effect of the lack of virginity. It seems that necessity of unification in judicial procedure in Iranian family law requires adding a clause to the mentioned article regarding the amount of dowry if the marriage is not terminated.