Jurisprudential Maxims in Parent-Child Relations (book)
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| Book Information | |
|---|---|
| Author | Monir Kabir and Maryam Borqei |
| Style | Reportorial-Analytical |
| Language | Persian |
| Pages | 192 |
| Publication Information | |
| Publisher | Jami'at al-Zahra (s) |
- Abstract
The book Jurisprudential Maxims in Parent-Child Relations examines the maxims governing these relationships and seeks to explain their religious and legal foundations. Citing authoritative sources from Imami fiqh and other Islamic schools of thought, the authors review the maxims that influence parent-child relations and determine their position within the Islamic legal system.
One of the most important topics in this book is the maxim of righteousness and benevolence (*birr wa ihsan*), which not only has a moral dimension but also specific jurisprudential and legal effects and consequences. Citing verses and narrations, the authors examine the obligation of kindness to parents, its distinction from obedience, and the religious and social consequences of observing or neglecting this maxim. The maxim of fosterage (*rada'*) is another significant subject, analyzing the fiqhi rulings related to breastfeeding and its effect on creating unmarriageability (*mahramiyyah*) between the child and the related families. The maxim of custody (*hadanah*) is another topic of this work, addressing the duties of parents in caring for and raising children. In addition to jurisprudential analysis, this section refers to the rights of the child within the framework of the Islamic legal system and examines parental duties from a religious perspective.
The guardianship (*wilayah*) of the father and paternal grandfather is also a key discussion, exploring the limits and authorities of the natural guardian in the financial and non-financial decisions for children. The authors address how this guardianship is regulated within Islamic jurisprudence and what limitations and conditions are considered for it. The disciplining of children is also a topic of this book. In other sections, other jurisprudential maxims that affect family relations are also examined.
Introduction and Structure
The book *Jurisprudential Maxims in Parent-Child Relations* is a research work by Monir Kabir and Maryam Borqei that explores the jurisprudential foundations of family relations from the perspective of fiqhi maxims. The book was published in 1400 SH by Jami'at al-Zahra (s). The book has six chapters and analyzes the maxims that govern the relationships between parents and children, examining their implications for religious rulings by citing jurisprudential and usuli sources.
Chapter one is dedicated to introducing the jurisprudential maxim, its place in the derivation of rulings, and its difference from usuli maxims and jurisprudential theories. Chapter two examines the maxim of righteousness and benevolence and explains the obligation of benevolence towards parents from a jurisprudential and rational perspective. In the third chapter, the maxim of fosterage and its impact on family relations are studied alongside maxims such as lineage and guardianship. Chapter four addresses the maxim of custody and the jurisprudential disagreements surrounding it, especially in specific cases like the custody of an illegitimate child or one born from artificial insemination. Chapter five discusses the guardianship of the father and paternal grandfather in matters of marriage and the child's property. Finally, chapter six deals with the jurisprudential foundations for the permissibility of corporal punishment of a child and the related narrative and rational arguments.
With a comparative approach, in addition to examining the majority views in Imami fiqh, the book also considers the perspectives of jurists from other schools of thought and, in some cases, analyzes legal issues related to these maxims. Using authoritative jurisprudential sources, the authors, besides explaining religious rulings, have also tried to examine the social and educational dimensions of these jurisprudential maxims.
The Concept of a Jurisprudential Maxim
In the first chapter, the author explains foundational concepts, including the "jurisprudential maxim" (*qa'idah fiqhiyyah*) and its place in the process of deriving religious rulings. Linguistically, a maxim means foundation and basis, and technically, it is considered a general principle applicable to various instances, from which specific rulings can be extracted. These maxims, as one of the essential tools in understanding religious rulings, play a significant role in applying and discovering detailed rulings. Fiqh, as the science dealing with specific religious rulings through detailed evidence, relies on jurisprudential maxims in this regard, although these maxims are distinct from usuli maxims.
Jurisprudential maxims are used to apply and determine the ruling on specific issues, whereas usuli maxims are primarily tools for deriving general rulings. Jurisprudential maxims are applicable to both lay followers (*muqallidun*) and jurists (*mujtahidun*), but usuli maxims are specific to jurists. Furthermore, a jurisprudential maxim differs from a jurisprudential theory and a jurisprudential issue in its nature and function; a jurisprudential theory is a set of related rulings on a specific topic that forms a distinct legal system, while a jurisprudential maxim expresses a general ruling. Also, the scope of jurisprudential maxims is broader than that of jurisprudential issues, as maxims govern a set of details, while issues only pertain to specific and defined instances. Finally, jurisprudential maxims are divided into two types: general and specific. General maxims, such as the "no harm" rule, apply to most chapters of fiqh, whereas specific maxims, like the "prayer is not to be repeated" rule in acts of worship or "loss during the option period" in transactions, are limited to specific chapters. This classification demonstrates the breadth and central position of jurisprudential maxims in the process of deriving and applying religious rulings (pp. 21-24).
The Maxim of Righteousness and Benevolence (*Birr wa Ihsan*)
The second chapter of the book examines the maxim of "righteousness and benevolence" in parent-child relations. Before delving into the jurisprudential evidence, the author first explains the key concepts of "benevolence" (*ihsan*) and "righteousness" (*birr*). Linguistically, *ihsan* means goodness, beauty, and bringing good to others without expecting a reward, and technically, it refers to performing actions in a complete and worthy manner. *Birr* linguistically means extensiveness in good works, truthfulness, obedience, and benevolence, and technically, it refers to kindness accompanied by affection and concern for the well-being of parents and others, without personal expectation.
The author explains the difference between these two concepts by stating that although both denote goodness and benefiting others, "birr" in some cases has a broader meaning than *ihsan* and includes more continuous and deeper kindness towards parents. Within the framework of this maxim, kindness to parents is not limited to performing duties, but includes performing duties in a good manner and beyond the expected level. Finally, the author emphasizes the necessity of standardizing benevolence and states that the goal of this maxim is to regulate good behavior towards parents, both during their lifetime and after their death (pp. 27-30).
The maxim of the obligation of benevolence towards parents is proven based on scriptural and rational evidence. From a scriptural perspective, Quranic verses such as Surah al-Isra, 23, Surah al-An'am, 151, and Surah Luqman, 14, mention benevolence to parents alongside monotheism and prohibit any disrespect. Also, narrations from the Ahl al-Bayt (a) divide this benevolence into the period of the parents' life and after their death. From a rational perspective, the obligation of benevolence stems from human nature (*fitra*) and the necessity of gratitude towards parents as intermediaries of divine blessings, even if they have been negligent in their duties (pp. 42-31).
The Maxim of Fosterage (*Rada'*)
Just as birth creates a lineage relationship, being breastfed by a woman creates a "foster relationship" (*qarabat rada'iyyah*). In this type of relationship, the child becomes unmarriageable (*mahram*) to the wet nurse, her husband, and their relatives, albeit under specific conditions mentioned in fiqh. To prove this ruling, the author cites verse 4 of Surah An-Nisa, which prohibits marriage with foster mothers and sisters, while the prohibition of marriage with relatives like paternal and maternal aunts is derived from narrations (pp. 54-56).
The author notes that the issue of "fosterage" and "foster relationship" is mentioned in many narrations, and from their entirety, it can be concluded that this ruling is definitive and established. By examining some narrations, he shows that some of them explicitly mention the prohibition of marriage with foster paternal and maternal uncles, and these rulings are an emphasis on observing the sanctity of the foster relationship (pp. 57-61).
He believes that the principle of the foster relationship is a matter of consensus among all Islamic schools of jurisprudence, but there are differences in its details and conditions among Imami jurists as well as between the schools of thought. He emphasizes that this issue is considered one of the necessities of the religion, meaning it does not require argumentation or proof and is a self-evident principle of Islamic jurisprudence (p. 61).
Rulings Consequent upon the Maxim of Fosterage
The rulings of a foster relationship include rights and duties such as inheritance, maintenance, custody, prohibition of marriage, guardianship, maintaining family ties (*silat al-rahim*), and the prohibition of carrying out retaliatory punishment (*qisas*) and prescribed punishments (*hudud*) for a father. Jurists have a consensus on the prohibition of marriage in a foster relationship and rely on two reasons: first, the fourth verse of Surah An-Nisa, which forbids marriage with foster mothers and sisters. Second, a narration from Imam al-Sadiq (a) which states that whatever is forbidden through fosterage is the same as what is forbidden through lineage (*al-Kafi*, vol. 5, p. 437).
The author presents reasons for extending all rulings of blood kinship to foster kinship. He emphasizes that abandoning obligations is forbidden due to the loss of necessary benefits, and this also includes honoring foster parents. In addition, the principle of prioritizing the prevention of harm over the acquisition of benefit necessitates that in a conflict between an obligation and a prohibition, abandoning the prohibition takes precedence. In the author's view, the word "yahrumu" (is forbidden) in the narrations not only indicates the prohibition of marriage but also the obligation of certain duties.
The author then concludes, by citing some narrations about the inheritance of a foster brother and the manumission of a slave, that the rulings of blood kinship also extend to foster kinship. He also believes that custom (*'urf*) considers titles like "father," "mother," "daughter," and "brother" to include both blood and foster relatives, which confirms the commonality of rulings between them.
To strengthen this view, he refers to the authoritativeness of the accumulation of presumptions (*tar akum al-zunun*) and the legislator's disposition (*madhaq al-shari'*), emphasizing that even if each of these proofs is not sufficient on its own, their sum indicates the application of the rulings of blood kinship to foster kinship. In the section on practical results, the author states that just as certain duties exist between parents and a biological child, these rulings also apply to foster parents and a foster child. However, in matters like inheritance and maintenance, foster relatives benefit from these rights only in the absence of blood relatives, but in rulings such as respecting foster parents, the life of blood relatives has no effect (pp. 65-82).
Finally, the author points to some applications of the maxim of fosterage, including its impact on civil laws, the registration of foster parents on birth certificates, and the role of fosterage in establishing unmarriageability for an adopted child. He also examines the maxim of fosterage in relation to maxims such as "no harm," lineage, and guardianship (pp. 83-87).
The Maxim of Custody (*Hadanah*)
After defining custody, guardianship, and the child's best interest, the author examines their jurisprudential evidence from the Quran, Sunnah, consensus, reason, and the practice of the wise. Despite the authenticity of the chains of narrations on custody, contradictions are seen in their indications.
The majority view accepts the mother's right of custody until the son is two years old and the daughter is seven, after which it is transferred to the father. However, the "more famous view" (*qawl al-ashhar*) considers this right to belong to the mother until the age of seven, without gender distinction. This view, which Shaykh al-Tusi also emphasizes, is based on consensus and narrations (pp. 89-106).
The conditions for custody include sanity, being a Muslim, the mother not remarrying, and moral competence. During infancy, the mother has a greater right, but after the age of two, there is disagreement among jurists (pp. 106-110).
- Custody of an Illegitimate Child
Children resulting from illicit relationships, due to the lack of legal lineage rulings, require custody and financial support. The biological parents are responsible for their care, and abandoning them causes harm to the child, which, according to the "no harm" rule, entails liability. Some jurists also emphasize the customary responsibility of the father and mother in this regard (p. 113).
- Custody of a Child from Artificial Insemination and Surrogacy
The views of jurists on this matter differ. Some consider the child to be illegitimate, but if the sperm and egg are from a legally married couple, the child is attributed to them, and the rulings of custody will be valid for the parents (p. 114).
- Custody of a Cloned Child
In the case of a child born through cloning, the responsibility for custody and financial support lies with the person who caused their creation. The practice of the wise considers such a person responsible for the child's care (p. 115).
- Custody of an Intersex Person with Ambiguous Genitalia
Some jurists treat an intersex person with ambiguous genitalia as a girl, and some as a boy. In case of doubt, according to some opinions, custody is with the mother until the age of two and then with the father. In case of disagreement between the parents, some jurists have suggested drawing lots.
Another view is that since there is no certain knowledge of masculinity, custody should remain with the mother based on the "presumption of continuity" (*istishab*), unless conclusive evidence for its transfer to the father is provided. Some jurists, due to the conflict of evidence, have cited general principles that assign custody to the father. But another group considers resorting to these generalities in such cases to be incorrect, as an intersex person cannot be considered a third nature. Based on this, in the absence of conclusive evidence and the non-applicability of *istishab*, the rule of drawing lots will be implemented (p. 117).
Guardianship of the Father and Paternal Grandfather in a Child's Marriage Based on the Maxim of Guardianship
The author examines the guardianship of the father and paternal grandfather in the marriage of a child in two parts:
- Before Puberty: There is a consensus among jurists on the establishment of the guardianship of the father and paternal grandfather over a child, provided that the child's best interest is observed and any harm is avoided (pp. 141-148).
- Mature Virgin Girl: Jurists disagree. Some have accepted the independence of a mature girl in marriage and have cited the principle of the absence of guardianship (*Wasa'il al-Shi'a*, vol. 20, p. 285). In contrast, some have considered the continuation of the guardian's authority to be valid, citing authentic narrations (*Man La Yahduruhu al-Faqih*, vol. 3, p. 395). The theory of "partnership" (*tashrik*) has also been proposed, which requires the consent of both the girl and the guardian. Some have also differentiated between permanent and temporary marriage (pp. 141-148).
- Guardianship over Property: A child before puberty is legally incompetent, and the administration of their property is the responsibility of the father and paternal grandfather, conditional on observing their best interest. The consensus of jurists, verse 4 of Surah An-Nisa, and narrations indicate this (*Wasa'il al-Shi'a*, vol. 17, p. 263; pp. 148-152).
The Ruling on Disciplining a Child Based on the Maxim of Discipline
In Islamic jurisprudence, corporal punishment of a child is permitted only under specific conditions and as a last resort. This issue is examined based on three foundations:
Narrations:
- Encouraging the child to worship: In some narrations, parents are obliged to encourage children to pray and to supervise their performance at specific ages. In some narrations, corporal punishment for abandoning prayer after the age of nine is permitted only if it is in the child's best interest (*Wasa'il al-Shi'a*, vol. 4, p. 20).
- Discretionary punishment (*ta'zir*) for committing forbidden acts: A pre-pubescent child is not subject to prescribed punishments (*hudud*), but in some cases, such as fornication, discretionary punishment appropriate to their age is considered for them (*Wasa'il al-Shi'a*, vol. 20, p. 297).
Practice of the Wise: The conventional method of upbringing is primarily based on teaching and admonition, and corporal punishment is permitted only when these methods are ineffective and in a limited manner. Regarding punishment by a teacher, a narration from Imam Ali (a) emphasizes that more than three strikes entails liability and even retaliatory punishment (*qisas*).
Practice of the Prophet and Imams (a): In the practice of the Infallibles, no violent behavior towards children has been reported, and their method was always based on love and forbearance (p. 169).