اندیشه‌های حقوق عمومی

Investigation of the Effect of Man's Authority over His Own Organs in Organ Trading

Mahdi Dargahi*

Abstract

The relationship between man and his organs is among the topics which receive special attention today because it contributes to solving some problems which have recently appeared. Determining the kind of this relationship and its scope with the study of its roots in jurisprudential (fiqhi) texts has a direct effect on some of the legal and jurisprudential (fiqhi) issues such as organ donation during one's lifetime or later on (while brain death) and the question of receiving money for giving organ. Jurists and some authors refer to the nature of this relationship as "possessive" relationship of balance of essential and conventional ownership of balance, and "authoritative" relationship to elaborate on the nature of this relationship. A review of jurisprudential (fiqhi) proofs and legal principles shows that this kind of relationship is authoritative, and supposing that the wise consider this authority as complete, one cannot related such issues like illegality of " self-damage" and "committing suicide" to this authority; because there are no proofs which support this claim and this view cannot be refuted, although the scope of this authority inferred form Holy prophet's and Imams' life style is not clear.

The elaboration on this relationship answers to the question that whether or not man can ask an exchange one of his organs for denoting to someone else.. The proofs show that if one of a person's organs is cut for whatever reason, it can be entitled as property and it can be exchanged and purchased.

Key words: property, authority, right, exchange, organ trading.

The Legal and Jurisprudential Study of a Condition of Wife's Proxy in Divorce and Its Related Clauses

Mahmud Raygan*

Abstract

Divorce is the most hated but allowed fact [in Islam], but in some cases there is no choice but spouses' separation. The All- Wise God has granted men with the right of divorce but some of them misuse it, so the legislator lays down some conditions to prevent their misuse and protect women's rights. To this end, there is a clause in marriage certificate which reads: "the husband gives irrevocable proxy to his wife by third person right of proxy" to enable her to obtain her divorce and determine her future and way of life if some conditions are fulfilled and husband neglects his duties towards her.

The aforementioned clause in marriage certificate is one of the conditions of performance which is signed by both parties and most young people probably do not know the content, significance, and clauses of the conditions they sign. Therefore, it is necessary to conduct a research on this condition in order to inform the spouses about it, recognize damages existing in marriage, and stabilize family status.

The present paper gives the definition of this condition and its kinds and studies the condition of proxy in divorce and conditions of its realization. The research findings are as follows: the nullification of condition of insanity for the realization of proxy, illegitimacy of condition of avoiding remarriage during one's life time, long duration of proceeding process, notary-public's negligence to make spouses understand the conditions and rights which they sign, failure of the project of polyandry in West, and separation between law and jurisprudence, . . .

Key words: marriage, divorce, husband, wife, jurisprudence, rights, remarriage.

A Review of Legal and Jurisprudential (Fiqh) Nature of Marriage Portion (Mahria)

'Azizollah Fahimi*, Dawood Besarati**

Abstract

Twelver Shi‘a jurists' interpretations of marriage portion seem to have different views. Some jurists' interpretations apparently consider marriage as a kind of exchange contract and, accordingly, marriage portion is considered as an exchange. On the contrary, other jurists' interpretations make explicit that marriage is not a kind of exchange contract and, accordingly, marriage portion is not like an exchange contracts. As a result, Twelver Shi‘a jurists believe that marriage contract is not a kind of exchange contract although sometimes marriage is referred to as an exchange contract because some of the rules of exchange contracts correspond to some of the aspects of marriage contract.

Therefore, marriage portion does not have the quiddity of an exchange; rather, it is a special gift determined by the Most High God which the husband has to pay to his wife. A special gift means that jurisprudential (fiqh) and legal rules of gift contract do not apply to it completely. The dominant view on the legal nature of marriage portion is like that of its jurisprudential (fiqh).

Key words: marriage portion, nature of marriage portion, jurisprudence (fiqh), law, jurisprudential (fiqh) nature, legal nature.

Religious Endowment by Artificial (Legal) Persons

Seyyed Ibrahim Husseini*, Ehsan Samani**

Abstract

There are many ambiguities and questions about the powers and duties of artificial persons. However, the present paper seeks to investigate the principles of validity and legitimacy of acts made by artificial persons from the viewpoint of Islamic law and jurisprudence. In other words, this paper tries to provide answers for the question that whether an artificial person can perform the legal act of religious endowment? If possibly so, what are the reasons for the validity of this legal act by "artificial person"? Furthermore, it makes review of the conditions of religious endowment by artificial person because the conclusion of religious endowment contract depends on some conditions such the ownership of endower and intention of nearness to God . . .

As Islamic law and jurisprudence show, artificial persons enjoy all rights of real persons except those rights which are naturally exclusive to real persons. Furthermore, the reasons of religious endowment are absolute and general and include religious endowment by artificial persons. However, the intention of nearness to God is not the condition for validity and veracity of religious endowment; rather it the condition of perfection and reward.

Key words: religious endowment, personality, real person, artificial person.

State's Positive Moral Obligations to Citizens in Imam Ali' View

Qasim Ali Sedaqat*, 'Ebadullah Jahanbin**

Abstract

In Imam Ali's view, state has positive moral obligations to its citizens which has to be fulfilled them. Safeguarding human dignity, establishing good relations with people, preventing renting, contributing to developing the country, supporting vulnerable strata of society, increasing the level of people's income and welfare, encouraging circulation of the capital and preventing accumulating it, just allocation of resources and facilities, observing the priorities, ensuring security and making bureaucratic order and discipline are the strategic policies of 'Alawid government. Surprisingly, Imam Ali perseveringly pursued these policies in different and difficult conditions and tried to implement them. Furthermore, he always encouraged the rulers and statesmen of the time to implement them and threatened or punished those who went astray.

Key words: Imam Ali's life style, state's negative and positive moral obligations, social rights, citizens' rights, state and government.

Human Rights and Control Mechanisms in International Documents and Jurisprudence

Mas'ood Ra'ii*

Abstract

The developments in human rights documents and, as a result, attempts to take world community to the ideal point is tied with the idea of establishing these rights by states. Now, the question arises as to "on what mechanisms, especially in governmental domain, does the realization of this aim depend?" The answer to this question involves elaboration on the nature of commitment and duty states show towards human rights. Among the most important commitments of states on human rights are their commitments to recognize, respect, exercise and report them, commitment to acts or commitment to results. Two methods-prompt and gradual-have been defined to fulfill these commitments. According to one approach, the protection of human rights depends on using external executive mechanisms to fulfill states' human rights commitment. This approach took its greatest practical step through the successful establishment of the United Nations human rights council. The second approach defines the best strategy to protect human rights as relying on rulers' circumstances. The approach of Islamic rights system, while accepting external mechanisms, has relied on such internal tools as justice, believing in God, and believing in hereafter, for it is impossible to avoid instrumental approach to man or political treatment of human rights without considering rulers' internal circumstances and moral issues.

Key words: protection of human rights, sanction, states' commitments, Islamic rights system, rulers' circumstances.

* Graduate of level four in Seminary aghigh_573@yahoo.com

Received: 2012-10-9 - Accepted: 2012-3-5

* MA of Islamic jurisprudence and principles of Islamic law mahmoodrayegan@yahoo.com

Received: 2012-7-10 - Accepted: 2013-1-5

* Assistant professor of law department, Qom university Aziz.fahimi@yahoo.com

** MA of private law, IKI dbasarati@yahoo.com

Received: 2012-6-5 - Accepted: 2012-12-15

* Assistant professor of IKI sehoseini@hotmail.com

** MA of private law, IKI

Received: 2012-8-13 - Accepted: 2012-12-9

* MA of public law, IKI sadaqat1345@yahoo.com

** PhD student of public law

Received: 2012-8-8 - Accepted: 2013-1-5

*Assistant professor of Law department, Najafabad Azad Islamic University masoudraei@yahoo.com

Received: 2012-7-31 - Accepted: 2012-12-16