Sayyid Mostafa Mohaghegh Damad: Difference between revisions
No edit summary |
|||
| Line 40: | Line 40: | ||
* Rational and humanistic study of severe punishments with a focus on the ruling of stoning (Rajm) | * Rational and humanistic study of severe punishments with a focus on the ruling of stoning (Rajm) | ||
* Fiqhi investigation into the possibility of Qisas (retaliation) of a man against a woman in criminal Fiqh | * Fiqhi investigation into the possibility of Qisas (retaliation) of a man against a woman in criminal Fiqh | ||
* Analysis of the governmental and judicial nature of a woman's | * Analysis of the governmental and judicial nature of a woman's Diyah (blood money) in Fiqh | ||
* Evaluation of the customary (Urfi) nature of pyramid schemes, chess, hoarding, Riba (usury), and bribery | * Evaluation of the customary (Urfi) nature of pyramid schemes, chess, hoarding, Riba (usury), and bribery | ||
* Emphasis on the principles of justice and human dignity as pre-Fiqhi ones in reviewing Fiqh | * Emphasis on the principles of justice and human dignity as pre-Fiqhi ones in reviewing Fiqh | ||
| Line 109: | Line 109: | ||
== Fiqh of the Environment == | == Fiqh of the Environment == | ||
Mohaghegh Damad classifies environmental resources into three categories: [[Private Ownership|privately owned]], [[State Ownership|state-owned]], and [[Public Property|public property]]. "Anfal," as public property, is at the disposal of the legitimate government and includes forests, seas, mountains, pastures, space, air, and other natural resources. These properties are neither subject to personal ownership nor alienation, rather, they must be used for public interests; because according to the explicit text of the Quran, Anfal belongs to God and the Prophet Muhammad, and according to Islamic jurists, it is at the disposal of the Infallible, | Mohaghegh Damad classifies environmental resources into three categories: [[Private Ownership|privately owned]], [[State Ownership|state-owned]], and [[Public Property|public property]]. "Anfal," as public property, is at the disposal of the legitimate government and includes forests, seas, mountains, pastures, space, air, and other natural resources. These properties are neither subject to personal ownership nor alienation, rather, they must be used for public interests; because according to the explicit text of the Quran, Anfal belongs to God and the Prophet Muhammad, and according to Islamic jurists, it is at the disposal of the Infallible, when he is present, and of the religiously legitimate government during the Age of Occultation. | ||
In explaining the [[Dominium Rule]] (Qa'idat al-Tasallut), he considers the absolute discretion of the owner to be conditioned by other Fiqhi rules such as the "[[No-Harm Rule]]" (La Darar). In his view, any disposition that causes harm to others or damage to public resources is prohibited and results in Shari'ah liability (Daman). Within this framework, rules such as "No-Harm," "[[Rule of Destruction|Destruction]]" (Itlaf), and "[[Rule of Causation|Causation]]" (Tasbib) can serve as the basis for civil liability regarding environmental damages.<ref>Mohaghegh Damad, Theology of the Environment, pp. 182 and 230.</ref> | In explaining the [[Dominium Rule]] (Qa'idat al-Tasallut), he considers the absolute discretion of the owner to be conditioned by other Fiqhi rules such as the "[[No-Harm Rule]]" (La Darar). In his view, any disposition that causes harm to others or damage to public resources is prohibited and results in Shari'ah liability (Daman). Within this framework, rules such as "No-Harm," "[[Rule of Destruction|Destruction]]" (Itlaf), and "[[Rule of Causation|Causation]]" (Tasbib) can serve as the basis for civil liability regarding environmental damages.<ref>Mohaghegh Damad, Theology of the Environment, pp. 182 and 230.</ref> | ||
| Line 129: | Line 129: | ||
=== Equality of Qisas for Men and Women === | === Equality of Qisas for Men and Women === | ||
Among the important controversial issues is the [[Equality of Retribution for Men and Women|Equality of Qisas for Men and Women]]. Based on Shi'ite Fiqh it is necessary to pay the difference between blood money ( | Among the important controversial issues is the [[Equality of Retribution for Men and Women|Equality of Qisas for Men and Women]]. Based on Shi'ite Fiqh it is necessary to pay the difference between blood money (Diyah) for men and women to enforce Qisas; whereas the Sunnis are of opinion that Qisas is carried out without the need to pay the difference in Diyah. Mohaghegh Damad believes that the principle of non-equality of Diyah for men and women can be inferred from Quranic verses, but this interpretation does not conflict with the possibility of finding a way to equalize the Diyah. Therefore, it cannot be concluded that a man will never be retaliated for a woman unless the difference in blood money is paid.<ref>Mohaghegh Damad, Argumentative Comparative Criminal Fiqh, p. 42; Mohaghegh Damad and Khosravi, "Gender Equality in Qisas; Condition of Establishment or Implementation," pp. 107–123.</ref> | ||
=== Qisas, a Limited Right, Not a Binding Obligation === | === Qisas, a Limited Right, Not a Binding Obligation === | ||
| Line 135: | Line 135: | ||
=== Woman's Diyah as a Judicial and Sovereign Affair === | === Woman's Diyah as a Judicial and Sovereign Affair === | ||
In the discussion of [[Equality of Diyah between Woman and Man]] in Islam, Mohaghegh Damad points to the "signatory" (Imda'i) nature of rulings related to Diyah that could change in the Islamic law. He thinks [[Verse 92 of Sura an-Nisa]] simply concerned with paying blood money and does not state any rule about the amount of Diyah or difference between man and woman. Examination of Hadiths also shows that the Prophet Muhammad (PBUH) determined Diyah of murder based on criteria such as camels, cows, sheep, Dinars, and Dirhams that are of [[Signatory Rulings|signatory (Imda'i) rulings]] rather than "establishmed" (Ta'sisi) ones. This means that they would have confirmed by Sharia if they have been customary in the age of the Prophet (PBUH); so they are capable of change if the custom changes; just as today, payment of | In the discussion of [[Equality of Diyah between Woman and Man]] in Islam, Mohaghegh Damad points to the "signatory" (Imda'i) nature of rulings related to Diyah that could change in the Islamic law. He thinks [[Verse 92 of Sura an-Nisa]] simply concerned with paying blood money and does not state any rule about the amount of Diyah or difference between man and woman. Examination of Hadiths also shows that the Prophet Muhammad (PBUH) determined Diyah of murder based on criteria such as camels, cows, sheep, Dinars, and Dirhams that are of [[Signatory Rulings|signatory (Imda'i) rulings]] rather than "establishmed" (Ta'sisi) ones. This means that they would have confirmed by Sharia if they have been customary in the age of the Prophet (PBUH); so they are capable of change if the custom changes; just as today, payment of Diyah in Rial is common. Mohaghegh Damad argues that justifying the half-Diyah of a woman by citing the economic status of the man is devoid of merit and acceptability in current conditions where women have active social, political, and economic roles. Considering the absolute nature of the Diyah verse, the variety of narrations, the diversity of Diyah criteria among different peoples, and the signatory nature of the Diyah ruling, he concludes that the principle of compensation for damages is definitive and permanent; but the amount and method of Diyah payment depend on social developments and its ruling is judicial and governmental, not a fixed Shari'ah one.<ref>Mohaghegh Damad, Argumentative Comparative Criminal Fiqh, pp. 71–73; Mohaghegh Damad, "Separation of Judicial Narrations from Fiqhi Narrations," pp. 49–74.</ref> | ||
== Customary Nature of Pyramid Schemes, Chess, Hoarding, Riba, and Bribery == | == Customary Nature of Pyramid Schemes, Chess, Hoarding, Riba, and Bribery == | ||