Journal of  Islamic Jurisprudence and  Law: 1 (1)

Open Access Article

1 - The Relation of Crime and Sin in Iran’s Legal System
Seyd Mohamadreza Ayati Hamze Esfandiyari

“Crime” and “sin” are among the words used in everyday language assynonyms and interchangeable words. However, in the field of law,particularly Iran’s law, they are looked into differently. As far as history isconcerned, and since Iranian l More

“Crime” and “sin” are among the words used in everyday language assynonyms and interchangeable words. However, in the field of law,particularly Iran’s law, they are looked into differently. As far as history isconcerned, and since Iranian law is under the influence of religious thought,there is a certain distinction between the two terms. Sin is a behaviourcontrary to divine or religious commands and prohibitions. However, crime isa legal term applied to modes of behaviour the prohibition of which is statedin law, no matter whether they are forbidden in divine law and religion or not.Following this attitude, if a certain mode of behaviour is forbidden in terms ofjurisprudence and divine law, but not prohibited in law, it is considered a sin.However, it would not be liable to prosecution in terms of law.Following the establishment of the Islamic Republic of Iran, thisapproach was considered deviation from religion. Thus the article 167 of theI.R.I constitution has removed the monopoly of criminalization from the law.So in default of law, judge is bound to refer to authoritative jurisprudentialsources or valid decrees (Fatwas). This attitude suggests the identity of sinand crime in Iran’s contemporary legal system.Hence, not only the prohibited acts stated in statutes are consideredcrimes, but those stated in jurisprudential sources are also liable toprosecution.Although this view involves a kind of precaution and suggests concernfor application of religious precepts and regulations, it is contrary to theintents of Divine Law as far as foundations are concerned. It also facesnumorous problems in terms of practice. So it seems impossible to findsolutions to these problems, And this attitude is not consistent with themodern process of legislation. Manuscript profile

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2 - The place of Doctrinal Verses in Deduction of Jurisprudential Decrees
Seyd Mohamd Ali Ayazi

The holy Quran is the foundation and source of jurisprudential decrees.So there is no doubt that the Quran is the primary and foremost source ofIslamic law. On the other hand, contemplation of jurisprudential legal versesin various subjects whatsoever, can not be fulfil More

The holy Quran is the foundation and source of jurisprudential decrees.So there is no doubt that the Quran is the primary and foremost source ofIslamic law. On the other hand, contemplation of jurisprudential legal versesin various subjects whatsoever, can not be fulfilled without that of otherverses. Any explanation of jurisprudential decrees of the Quran is the same asother parts of the Quran. Doctrinal issues are raised within jurisprudentiallegal decrees, and the latter are found within ethical material of the Quran.Thus in the process of the formulation of the theoretical foundations of legalverses, one of the important issues in the field of jurisprudential study is thesurvey of doctrinal verses and their place in deduction of legal decrees. Thisclass of material forms the largest part of the Quran. That is why the questionraises itself whether legal decrees can be derived from this class of verses, andif so what is the validity of this derivation.The present article explains the nature of doctrinal verses, theirbackground, and their classification. It also deals with the problems arisingwhen referred to as proofs or sources. Further, the article deals with the waysof referring to these verses and the theories of jurisprudents in this regard.Finally, it explains where and how the doctrinal verses and those concerningIslamic world view may prove to be useful in the field of jurisprudence. Manuscript profile

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3 - A Jurisprudential Analysis and Criticism of Certain Articles of the Islamic Penal Code (on the Liability of Public Treasury towards the Compensation for Murder)
Abasali Heydari

According to certain articles of the Islamic Penal Code and provisionsenvisaged under the same, the Islamic judge, or in other words, the PublicTreasury is responsible to pay the compensation for murder to the avengers ofblood.Surveying the legal foundations of the liab More

According to certain articles of the Islamic Penal Code and provisionsenvisaged under the same, the Islamic judge, or in other words, the PublicTreasury is responsible to pay the compensation for murder to the avengers ofblood.Surveying the legal foundations of the liability of the Public Treasurytowards compensation for murder, the author in this article has reached thefollowing conclusions:1. The liability of the Public Treasury in some cases including thatmentioned in article 236 of the Islamic Penal Code – majority ofjurisprudents have issued Fatwa on the same issue on the authority ofan event of the earlier days of Islamic – is under question and subjectto criticism.2. Considering contemporary common and social conditions which arequite different from the time of the issuance of Hadiths concerningthose liable to the compensation for murder including the PublicTreasury, it is possible to present alternative mechanisms moreconsistent with temporal requirements. Thus it is suggested that thelegislation reconsider the above – mentioned articles and revokearticle 236 of the Islamic Penal Code. Manuscript profile

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4 - A Study of the Causes of the Dynamism of Jurisprudence
Alireza Feyz Batol Hosseini Semnani

The present article deals with the facts which have given rise to thedynamism of jurisprudence under various circumstances and spatio –temporal requirements.As a matter of fact, dynamic jurisprudence is the same traditionaljurisprudence adapting itself with tempor More

The present article deals with the facts which have given rise to thedynamism of jurisprudence under various circumstances and spatio –temporal requirements.As a matter of fact, dynamic jurisprudence is the same traditionaljurisprudence adapting itself with temporal requirements which may bedivided into two categories: internal factors and external ones.Internal factors are those relevant to the responsibility of Muslimjurisprudent with respect to the foundations and sources of jurisprudence, theflexible nature of the Quran and the Sunna, and application of reason (aql) asa source for deriving Islamic decrees.External factors are those relevant to spatio – temporal requirementsunder which dynamic jurisprudence flourishes, government which is thesource and executor of administrative rules within the interests of the Islamicsystem, and the protection of the Islamic territory against foreigners threatsand invasions. Manuscript profile

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5 - A Study of the Role of Theorists of Baghdad Legal School in Institutionalizing “Reason” in the Process of Development of Shiite Studies of Jurisprudence
Seyd Mohamd Mohsen Marashi Shoshtari Hormoz Asadi Kohbad

To fulfill its mission, Shiite jurisprudence has undergone certain stages ofdevelopment according to the spatio – temporal requirements. So it has had itsown features in every age. One of these stages is the brilliant age of Baghdadschool during which prominent sc More

To fulfill its mission, Shiite jurisprudence has undergone certain stages ofdevelopment according to the spatio – temporal requirements. So it has had itsown features in every age. One of these stages is the brilliant age of Baghdadschool during which prominent scholars such as Shaykh Mufid, SayyidMurtada, and Shaykh Tusi founded a new school. Establishing this schoolbased on the great sources of the Quran and the Sunna, they also introducedintellectual method in the field of jurisprudential studies with a specialprudence and applying new approaches.Venerating the former generation of jurisprudents adherent to textualproofs and commemorating their sincere efforts in safeguarding the precioussource of “texts”, they analyzed the former approaches and founded a newschool. The present article seeks to survey the process of institutionalizing“reason” in the methodology of jurisprudence by Shiite jurisprudents. Manuscript profile

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6 - Implied Stipulations of Marriage Contract: Survey and Comparison of Some Examples in Imamiyya and Sunni Jurisprudence
fateme Mirshamsi

Implied stipulation is the very obligation and fulfilment of the same, i.e.each of the parties to the contract may ask the second party for a certainquality, performance or nonperformance of an act, or the result of anothercontract within the contract in question. In on More

Implied stipulation is the very obligation and fulfilment of the same, i.e.each of the parties to the contract may ask the second party for a certainquality, performance or nonperformance of an act, or the result of anothercontract within the contract in question. In one classification, impliedstipulations are divided into valid and invalid ones. Valid stipulation is onehaving the qualifications of the validity of stipulation. Otherwise, it is invalid.Invalid stipulation may cancel the contract when it leads to the loss of one ofthe general principles or conditions of the validity of a contract. The exampleis when the condition is unknown or contrary to the nature of the contract.Valid conditions may be divided into three classes: those of quality, ofperformance of an act, and of collateral events.If one of the spouses has asked another for a certain quality in themarriage contract, in case of nonsatisfaction the former enjoys the right ofcancellation. That is a kind of misrepresentation which brings about the rightof option. If the condition of collateral events is stipulated, the wife wouldhave the power or option of divorce and she can transfer it to the third partyby power of attorney. This condition makes the deputation contract obligatoryand it is a type of absolute deputation. The condition of option is notpermissible in marriage contract. Sunnīs allow deputation and delegation ofdivorce to the wife. They have not considered the right of dissolution ofmarriage contract unique to the holy prophet’s wives. They hold if thehusband makes the wife free to choose between continuation or dissolution ofmarriage contract, and she opts the separation and termination of marital life,the marriage contract would be dissolved. In Imamiyya jurisprudence,optional divorce is known to be the unique right of the holy prophet. Manuscript profile

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7 - Theories Concerning the Commencement and Close of Childhood in Islamic Law
Seyd Abolghasem Naghibi

Inadequate physical, intellectual, and mental growth of a child requiresthe necessity of his extraordinary protection as an undeniable principleadopted in different legal systems. Thus, it is necessary to know thecommencement of childhood which brings about this legal p More

Inadequate physical, intellectual, and mental growth of a child requiresthe necessity of his extraordinary protection as an undeniable principleadopted in different legal systems. Thus, it is necessary to know thecommencement of childhood which brings about this legal protection.Experts in law have raised three theories concerning the commencementof childhood. They are as follows:1. Birth of foetus alive2. Capability to live on its own out of the whomb or in the laboratory3. Formation and development of spermAuthentic and frequently – quoted Hadiths indicate that a foetus bornalive is entitled to inheritance. So the first theory can be established on thegrounds of these Hadiths.Quranic verses and traditions (Hadiths) identify puberty – the stage inwhich sexual organs are capable of reproduction – as the criterion oftermination of childhood. Nevertheless, child’s property should not beentrusted to him after puberty unless his mental qualification (Rushd) isestablished. Thus, mental qualification is also necessary to reach the stage oftermination of childhood in financial affairs Manuscript profile

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