نوع مقاله : مقاله پژوهشی
نویسندگان
1 گروه حقوق و فقه اجتماعی پژوهشگاه حوزه و دانشگاه، قم، ایران
2 استادیار گروه فقه و مبانی حقوق اسلامی، دانشگاه تهران، پردیس فارابی، قم، ایران
3 استادیار گروه حقوق و فقه اجتماعی پژوهشگاه حوزه و دانشگاه
چکیده
کلیدواژه‌ها
عنوان مقاله [English]
نویسندگان [English]
Judgment arbitration which is opposite to appointment judgment is an institution in jurisprudence to settle disputes between the parties and is now appearing in legal law as “arbitration” and this method of resolving legal jurisprudential disputes is growing day by day due to respect for the rule of the parties’ will in choosing the judge or arbitrator. There is disagreement among jurists about the Quranic proofs of the legitimacy of this jurisprudential-legal institution, such that some derive its legitimacy from some verses of the Quran, and others believe that it is not legitimate based on some other verses. The question is, what are the verses that imply the legitimacy or illegitimacy of arbitration (judgment arbitration)? What are the implications of each of these verses? Although a comprehensive jurisprudential examination of each issue requires the examination of all evidences of jurisprudence, including the Four Sources or al-Adillat al-Arbaʿa (Arabic: الأدلّة الأربعة) or Quran, the tradition, consensus, and reason, in this article, by focusing on the verses of the Quran and maintaining the centrality of the noble verses of the Holy Word of Revelation, the verses that the commentators have raised indicate the illegitimacy of arbitration. (such as the verse referring disputes and disagreements to God and the Messenger and the verse about faith with referring disputes to the Prophet) has been the subject of controversy, and among the verses that those who insist on the legitimacy of arbitration, only the meaning of verse 31 of Sūra al-Nisāʾ about marital duties (Arabic: نُشوز, “Nushūz” is a jurisprudential term mainly referring to a wife’s disobedience of her husband in things like sexual requests and leaving the house without his permission. It is also used for a man when he disrespects her and does not observe her rights. It is also used for marital discord) has been accepted, and with the acceptance of the imperative word of “appoint” (Arabic: فَابْعَثُوا) in this verse and the rejection of the theory of being directory for this word and with the proof that this verse is not assigned to the disputes of the spouses and considering its general governing on all claims and disputes (with the help of Sīrah al-ʿUqalaʾ and argument a fortiori and some narrations), the legitimacy of the institution of arbitration in law and judgment arbitration in jurisprudence has been proven.
کلیدواژه‌ها [English]
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