پژوهش‌نامه حقوق اسلامی

‌Context & Objective: The fundamental issue addressed is the ownership of accretions (Namāʾāt) derived from the subject matter of a sale (Mabīʿ) when that subject matter is destroyed before delivery (Qabḍ) to the buyer under Islamic law. The core conflict arises because while the contract of sale (Bāyʿ) is tmalīkī (possessory) meaning ownership transfers upon contract formation the governing legal rule dictates that if the Mabīʿ is destroyed before delivery the contract is annulled (Infisākh) and the loss is borne by the seller (Bāyiʿ). This situation complicates the application of primary legal principles such as “Al-Kharāj bi al-Ḍamān” (profits follow liability). The research purpose is to analyze the legal and jurisprudential effects of the rule “Talf al-Mabīʿ Qabla al-Qabḍ fa huwa min māl bā’i‘ih” particularly concerning its relationship with the possessory nature of the sale contract and to determine the correct rule governing the ownership of the associated accretions. The central research question asks whether the rule regarding destruction before delivery constitutes an exception to the primary legal rules of contract formation. ‌Method & Approach: This article employs a doctrinal review and analysis of the jurists’ opinions and doctrine examining the concept scope and basis of the rule concerning the destruction of the subject matter before delivery. The methodology seeks to find a principle that is consistent with jurisprudential rules and aligns with customary fairness (Inṣāf) and transactional practice. The analysis delves into the three main theoretical positions concerning the compatibility or conflict between the possessory nature of the contract and the rule of destruction before delivery exploring concepts such as the role of delivery (Qabḍ) as a condition for the perfection (Kamāl) of ownership and the application of the rule “Al-Kharāj bi al-Ḍamān”. ‌Findings: The analysis reveals that the rule of destruction before delivery places the liability (Ḍamān) for the lost asset on the seller. In the context of accretions, the rule "Al-Kharāj bi al-Ḍamān" which links profits to liability is found to be in complete harmony with the destruction rule. Since the seller bears the loss and is deemed the owner for the purposes of the rule the accretions (Namāʾāt) resulting from the asset between the contract date and annulment must logically belong to the seller. This outcome is further supported by referencing the principle of Muwāzanah (balance in commutative contracts) and the necessity of referring to the ‘operative sale’. The operative sale theory based on the primacy of existence in creditable affairs dictates that since the asset cannot be delivered the foundational exchange did not occur and the profits should revert to the seller to avoid the unjust enrichment of the buyer. ‌Conclusion: The most logical and jurisprudentially sound conclusion consistent with custom and fairness is that the accretions (Namāʾāt) belong to the seller. The destruction of the Mabīʿ before delivery necessitates the annulment of the sale contract which results in the return of the subject matter and subsequently its profits to the seller who bore the liability. This principle is encapsulated in the juristic maxim that where restitution of the lost asset is impossible, the profits must still be restored to the seller. The rule “Talf al-Mabīʿ Qabla al-Qabḍ fa huwa min māl bā’i‘ih” effectively signals the seller’s implicit ownership thereby confirming that profits generated from the contract date until its dissolution belong to the seller.

‌Context & Objective: The foundational principle in Islamic contract law is the binding nature of agreements (aṣālat al-luzūm), wherein parties must adhere to their stipulations and any dissolution of the contract requires explicit justification. While mutual agreement can dissolve a contract through negotiated cancellation, unilateral rescission demands a definitive legal basis established by the lawgiver. These justifications are discussed in Islamic jurisprudence under the framework of khiyārāt (rights of rescission). A rescission right may originate directly from a contractual stipulation, as seen in khiyār-e sharṭ (option of condition), or it may be grounded in explicit jurisprudential evidence, such as khiyār-e majlis (option of the meeting) and khiyār-e ḥaywān (option of the animal). However, for the majority of other rescission categories—including the options of delay, inspection, defect, lesion, unfulfilled parts, and impossibility of delivery—the underlying evidence derived from foundational texts, consensus, and the conduct of rational actors remains a subject of ongoing dispute among jurists. The objective of this research is to determine whether these diverse categories of rescission can be systematically traced back to a unified contractual origin. Specifically, the central question addresses whether the remaining types of rescission rights operate fundamentally as implied conditions integrated into the fabric of the contract itself, functioning similarly to explicit contractual options. ‌Method & Approach: The investigation employs the method of qualitative induction by comprehensively examining and synthesizing the established statements, rulings, and independent reasoning of Islamic jurists. By systematically tracking the application of rescission rights across different contractual disputes within jurisprudential texts, the analysis abstracts the underlying rationales utilized by jurists to justify contract dissolution. ‌Findings: The inductive analysis reveals that the foundation of almost all rescission rights can be accurately classified as contractual, specifically operating through the mechanism of sharṭ-e ḍimnī (the customary implied condition). An implied condition represents the customary and consequential implication of the contract's terminology, reflecting the mutual, unstated intent of the transacting parties. Juristically, it holds the same binding authority as an explicit stipulation. This implied condition manifests in various forms depending on the transaction's context, and a breach of any specific manifestation generates a distinct legal category for contract dissolution. For instance, the absolute nature of a contract dictates an implied mutual intent for the simultaneous delivery of goods and consideration; a violation of this customary expectation triggers khiyār-e taʾkhīr (option of delay). When goods are traded based on a specific description, the parties operate under the implied condition that the described attributes exist, and discovering the contrary activates khiyār-e ruʾyat (option of inspection). Furthermore, the customary assumption of financial equivalence between the exchanged values acts as an implicit contractual clause, and any severe disparity results in khiyār-e ghabn (option of lesion). The mutual reliance on the structural integrity of the exchanged items implies a guarantee against hidden flaws, establishing khiyār-e ʿeyb (option of defect). Transactions involving multiple components carry an implied condition of indivisibility, granting the buyer khiyār-e tabaʿʿuḍ-e ṣafqah (option of unfulfilled parts) if a portion of the transaction is invalidated. Finally, the capacity to execute the exchange is inherently implied, meaning that an inability to deliver consideration due to insolvency yields khiyār-e taflīs (option of bankruptcy), while other systemic failures trigger khiyār-e taʿadhdhur-e taslīm (option of impossibility of delivery). ‌Conclusion: The binding principle of contracts dictates that any departure from a finalized agreement requires rigorous substantiation. This substantiation manifests in three primary forms: explicit jurisprudential mandates, explicit contractual stipulations, and customary implied conditions. While explicit stipulations are governed by the principle of contractual freedom and the secondary rule of lā ḍarar (prohibition of harm), relying solely on the prohibition of harm to justify the broader spectrum of rescission rights is doctrinally problematic, as the harm often stems from the transaction itself rather than the binding nature of the contract. Recognizing the customary implied condition as the singular, unifying basis for the majority of rescission rights resolves this jurisprudential friction. Because an implied condition fundamentally qualifies the initial contractual commitment, a breach means the foundational obligation to fulfill the contract no longer applies in absolute terms. Consequently, standard rescission rights do not require exceptional jurisprudential exemptions or secondary rules of harm avoidance; rather, they are the direct legal consequence of violating the unwritten, customary stipulations that structurally define the mutual agreement of the parties.

‌Context & Objective: Corrupt interactions among judicial actors within the criminal justice system can severely undermine the system's legitimacy in guaranteeing the implementation of justice and combating crime. Judicial corruption is recognized as one of the most destructive forms of institutional corruption, bearing direct consequences on citizens' rights, the legitimacy of the justice framework, and the stability of democratic structures. When the judicial apparatus, intended to ensure justice, becomes entangled in corrupt practices, it ceases its primary function and transforms into an impediment to justice. Such interactions often involve two or more individuals agreeing to violate legal procedures for mutual benefit, frequently remaining concealed due to the participants' self-interest and lack of reporting. In Iran, prevalent judicial corruption instances involve immoral communications and financial corruption based on explicit agreement. This research sought to meticulously investigate the corrupt interactions and relationships established between authorized officials and beneficiaries during criminal proceedings. The primary objective was to analyze the most significant manifestations of these interactions across various criminal procedural stages, articulate their diversity, and identify the specific legal authorities and existing laws that enable the formation of such environments. ‌Method & Approach: This study employed a qualitative research method focusing on the content analysis of documents and evidence. The documentary review included judicial and police rulings, discourse analysis of specific criminal justice officials, and content analysis of reports gathered from official domestic and foreign news agencies regarding publicized judicial corruption cases. Furthermore, the methodology incorporated deep, semi-structured interviews. The interview process continued until theoretical saturation was reached, involving a sample of 30 participants. Interviewees included 10 judicial authorities (judges, investigators, assistant prosecutors), 5 judicial enforcement officers, 10 bar association lawyers, and 5 judicial administrative staff. Interviews were conducted across various locations, including specialized complexes for government employees and economic crimes, and general prosecutor’s offices in Tehran and two provinces in the northwest of the country. ‌Findings: The findings demonstrated that the manifestation and nature of corrupt interactions vary significantly depending on the stage of the criminal process and the specific powers granted to the officials involved. In the preliminary investigation stage (prosecution), corrupt interactions largely focus on avoiding the formation of a criminal case, eliminating evidence of the crime, issuing disproportionate or lenient criminal guarantee orders, or closing the case entirely. Examples include the abuse of authority to decline case formation by providing non-objective information or through collusion with judicial enforcement officers to alter official reports or destroy evidence. Officials, particularly prosecutors, utilize broad discretion in determining the legal grounds for initiating prosecution. In the trial stage, interactions aim to improve the defendant’s standing relative to the preliminary phase, leading to the rejection of prosecution decisions or evidence. Specific goals include securing acquittal, altering criminal guarantee orders, or ensuring conviction results in a more favorable or lenient sentence. Judges, possessing extensive discretion in sentencing and interpretation, may, for instance, refuse to record unfavorable statements from witnesses or experts or reduce the classification of the crime in the final ruling following corrupt agreements. ‌Conclusion: The research confirms that the preliminary investigation and prosecution stage is the most vulnerable environment for widespread corrupt interactions, primarily due to the vast, unsupervised authority vested in officials regarding evidence collection and case trajectory. However, court judges maintain significant power to shift the legal status of the accused by conducting new investigations, rejecting previous evidence, or utilizing judicial mechanisms like commutation, conditional release, or suspended sentences to achieve corrupt outcomes. The analysis underscores that the legal provisions granting wide discretionary powers facilitate the conditions necessary for these interactions. Consequently, the findings emphasize the critical necessity of providing suitable accountability mechanisms within the context of legal authorities to curb judicial corruption and maintain the system's integrity.

‌Context & Objective: The determination of blood money (diyah) for the paralysis (shallal) of body parts is a fundamental issue in Islamic jurisprudence and the Iranian Islamic Penal Code of 2013. Article 564 of this code stipulates that paralyzing any organ with a fixed diyah requires the payment of two-thirds of its full value. This article aims to critically analyze the jurisprudential foundations of this rule and evaluate whether a uniform two-thirds rule is supported by primary religious sources or if a more categorized approach is necessary. The discussion explores the linguistic and technical definitions of paralysis—defined as the loss of an organ's primary function due to injury—and investigates the divergence between the prominent Imami view and alternative Sunni or contemporary Shiite perspectives. ‌Method & Approach: The research adopts a doctrinal approach based on classical and contemporary jurisprudential texts. It evaluates the linguistic roots of paralysis to establish its legal scope as the total loss of an organ's primary benefit. The methodology involves a comparative analysis of primary religious evidence including the Sahih of Fudayl ibn Yasar and the narrations of Yunus and Zarif. Furthermore, the study scrutinizes the validity of the alleged consensus (ijma) and the principle of Tanqih al-Manat to determine if the rules governing hands and feet can be generalized to all other bodily members. ‌Findings: The findings indicate that the two-thirds rule in Article 564 is largely derived from specific narrations regarding the fingers but has been inappropriately extended to all organs. While the prominent view supports fractional compensation religious evidence suggests that paralysis resulting in the total loss of an organ's primary function—such as in the eyes ears or tongue—warrants a full diyah. The analysis reveals that the current legislative framework creates ambiguity and lacks proportionality. Specifically, the study finds that for many bodily members where no specific fixed diyah is mandated the law should rely on Arsh which is an unfixed compensatory amount determined by expert opinion and forensic medical assessment rather than a fixed legislative fraction. ‌Conclusion: The study concludes that the generalized application of the two-thirds rule in Article 564 of the Islamic Penal Code is jurisprudentially inconsistent and requires reform. The author proposes a quadruple categorization for legal clarity: two-thirds diyah for the paralysis of fingers; full diyah for the paralysis of hands and feet based on specialized narrations; full diyah for major sensory and functional organs where paralysis equals total loss of utility; and Arsh (the non-fixed blood money determined by experts) for all other members not explicitly covered by religious texts. Such amendments would ensure the law aligns with the principles of justice and the detailed requirements of Islamic legal tradition.

‌Context & Objective: Hugo Grotius, widely recognized as the father of modern international law, articulated a distinct theory of natural law in his seminal work, De Jure Belli ac Pacis (On the Law of War and Peace), declaring that natural laws possess an immutable rational necessity that even the divine will cannot alter. This conceptualization, departing from Thomas Aquinas's integration of natural law within the eternal divine law, has historically prompted various legal scholars to characterize Grotian jurisprudence as a pivotal step toward the secularization of natural law. The discussion in this study outlines the epistemological, ontological, and theological foundations of Grotius’s theory, examining how this rational autonomy impacts the structural relationship between reason and revelation. Consequently, the primary research purpose of this study is to challenge the prevailing secular paradigm surrounding Grotian jurisprudence. The central research question is whether Grotius's interpretation of natural law inevitably leads to a secularized legal framework, or whether a jurisprudential reading can be constructed that maintains the rational immutability of natural law while preserving its intrinsic, harmonious relationship with the divine will and the system of Sharia. ‌Method & Approach: To address this question, this study adopts a doctrinal methodology combined with a comparative, analytical-deductive approach. Due to the relative scarcity of direct philosophical-theological treatises written by Grotius on the precise relationship between reason and divine command, this research utilizes an inferential analysis of his foundational legal writings, particularly the Prolegomena to De Jure Belli ac Pacis. This Grotian framework is then comparatively evaluated alongside the scholastic theology (Kalam) of the Shia (Imami) intellectual tradition. Utilizing a logical-deductive model, the study bridges the conceptual gap between classical Shia theology and modern natural law theories. Specifically, by examining the Shia theological doctrine of rational goodness and badness (al-ḥusn wa-l-qubḥ al-ʿaqliyyān), the study establishes a robust comparative framework to evaluate how autonomous rational norms can coexist with, and be validated by, divine legislation. ‌Findings: The findings of this study demonstrate that Grotius's conceptualization of natural law is structurally analogous to the theological and jurisprudential doctrines of Shia (Imami) scholars concerning rational morality. Shia theologians posit that certain moral acts possess inherent, objective goodness or badness (ḥusn and qubḥ) that can be independently discovered by human reason. Crucially, the Shia school does not view this rational autonomy as a threat to divine sovereignty; rather, they argue that these rational dictates are simultaneously commanded by God, establishing a vertical or longitudinal relationship between divine Sharia and the sound perceptions of human reason. The study reveals that Grotius similarly categorizes laws into distinct domains: rational/natural laws commanded by God due to their inherent morality, divine voluntary (positive) laws dictated solely by divine will, and human voluntary laws. Therefore, the Grotian assertion of the immutability of natural law does not exclude the divine, but rather mirrors the Shia theological view that rational moral truths exist prior to, yet are perfectly aligned with, divine legislative will. ‌Conclusion: This study demonstrates that interpreting Grotius's natural law as an inherently secularized construct is a jurisprudential and historical inaccuracy. By leveraging the theological insights of the Shia intellectual tradition, the paper proves that a synthesis of autonomous reason and divine law is not only conceptually coherent but also structurally viable. The Grotian framework, much like Shia theology, maintains a complementary rather than adversarial relationship between reason and revelation. Ultimately, this comparative analysis offers a novel jurisprudential paradigm: a rational, yet deeply theological, reading of natural law that transcends the rigid secular-religious dichotomy, proving that the rationalization of law does not necessitate its secularization.