نوع مقاله : علمی - پژوهشی
استادیار فقه و مبانی حقوق مجتمع آموزش عالی شهید محلاتی
عنوان مقاله [English]
This paper, bringing the meaning of guardianship into light, has presented a fundamental study on the subject. The question at hand is: what is guardianship, a religious duty or a right? Answering this question has led to different views of Shiite jurisprudents in the ground; among them, the prevailed ones are as follows:
1- Those like the author of javaher, know guardianship as a pure right. He says: there can be found no sign for guardianship to be a necessary duty.
2- Those like Seyyed Ali Tabatabaie, know it to be a mixture of right and religious duty. The view is agreed with by the article no. 1172 in Civil law.
3- The view prominently current to Imamiye jurisprudents, like that of Imam Khomeini and Ayatulla Khoyi, it is a view of two sides, i.e. only to father it is thought to be a mixture of religious duty and right.
Although legislature has turned to the second view in civil law and regarded guardianship as a mixture of religious and right, then in second stage, he has limited his view. When comparing the two stages of legislating, we find that the legislator has an incline toward the prominently current view of Imamiyeh's jurisprudents.