JOURNAL OF COMPARATIVE STUDIES ON ISLAMIC AND WESTERN LAW
Year:2016 | Volume:3 | Issue:3 |Papers Count:7

Transparency is a topic to reinforce the relations between the governorship and people, a fundamental motion to improve the politics and is one of the main component of good governance. From the different principles of good governance, transparency is the main element to reach to this theory that is planning and strengthening the rest of principles by itself.transparency and awareness of people from what happens at the government is not a topic just belongs to the modern communities, but also at the religious reflection have been pointed to the sense and concept of transparency and the Islamic leaderships traditions assisted to the element and lack of curtain at their relations with the society. The principle of transparency has the deep theoretical cover and basis and different schools, it has different basis. At the same time that Islam emphasis on the principles of transparency, it has the specific view about the elements that have concordance with the theory of good governance at the different cases and rarely has contradiction.

Popular sovereignty in western political thought, which manifests in a democratic system, begins by identifying the individual as an end. In this school of thought, on one hand, a person has a separate individuality from society and government and is able to provide his or her own definition about the relation between man and universe. Accordingly, the concept of popular sovereignty is intertwined with government representative and in a social contract, people establish the principles of constitution and legitimacy of laws and government are considered as the result of their will and consent. Thus, the most important function of government is to be bound to the representation and guarantee the people’s rights and liberties. A direct relationship can be observed between popular sovereignty and divine sovereignty in religious principles of Iran’s constitution. On one hand, divine sovereignty, is considered as vesting the self- determination right to people by God, as a divine right. On the other hand, people have defined their own destiny within Islamic religious principles, by freely acceptance of sacred principles. So, there is no confliction between religious principles and popular sovereignty, but disputes on sovereignty principles will arises from two different perspectives.

This article seeks to examine the role of ta’ddy and tafrit in civil liability and that whether they are among the fundamentals and causes of the responsibility or eliminate the obstacle of civil liability and zeman. This has been discussed extensively. What famous jurists believe is that they are among the fundamentals and are same as the fault theory. But what looks proper is that there is difference between them and the fault theory. And it will play role only where there is a domination on other’s property and where there is already a trust relationship. It is going to destroy this relationship and remove the obstacle of being known as responsible.

According to international and regional documents, the right to political participation, and in particular periodic elections, are considered as human rights. Right to periodical election is considered as a negative right and produces obligations of results or obligations of immediate results right. The right to elections and its periodicity has a serious relationship with the right to self-determination and it is a branch of it. This right may be limited or suspended under certain conditions. The issue of Periodicity of Velayat-e Faqih has been less elaborated in the Imamieh jurisprudence. The few discussions that have taken place around the periodicity, are more focused on social issues and do not have the precise jurisprudential examination. The result of this article is that the periodicity of Velayat-e Faqih is not in opposition to the Islamic holy religion. This is based on some reasons like “Moghadamate Hekmat”, “Principle of Establishment of the Islamic State”, “Principle of maintaining the Islamic system”. Of course, social, cultural, municipal, international and security interests and circumstances should be considered for making decision about the periodicity of Velayat Faqih, in practice, and preliminary allowance in Fiqh would not be enough.

In 2002, an organization was established in Iraq which was later named as ISIS. By taking control of considerable parts of Iraq and Syria, this nonstate actor has taken terrorist acts in occupied territories. DAESH, which has been recognized as a terrorist group, uses terrorist methods to achieve its goals. ISIS's acts in Iraq and Syria are not of those sporadic terrorist actions which can be dealt with through peaceful means and judicial mechanism stipulated in the anti-terrorism treaties. Given the definition set out in Article 1 (2) of protocol II of 1977, the current situation in Iraq and Syria is categorized as non-international armed conflict which is governed by humanitarian rules provided in the Article 3 Common to 1949 Geneva Conventions and protocol II. Terrorism negates fundamental principles of humanity which underlie International Humanitarian Law (IHL). As such, the Article 3 Common to 1949 Geneva Conventions and Article 4 (2) of protocol II prohibit terrorist acts in non-international armed conflicts. The parties engaged in the armed conflicts are obliged to observe humanitarian rules provided in Geneva Conventions and its protocols. Nevertheless, ISIS' s inhuman acts in Iraq and Syria clearly show breach of IHL. Furthermore, ISIS which is alleging to establish Islamic state and to carry out Islamic rules in the occupied territory has taken actions which are against Islamic norms and rules.

Breach of contract, by way of non-performance, delay in performance, delivery of defective goods and so on, is a common phenomenon and various legal systems have developed several remedies to deal with it. In common law systems, the first and foremost remedy is damages or money awards and, order for specific performance of contract is an ancillary and exceptional remedy. The most common damages in these systems consists of expectation damages which aims at placing the injured party in the position he would have been in, had the contract been duly performed. In other words, by giving a sum of money, the law tries to meet the expectations of the injured party as much as possible. After explanation of such aspects of the expectation damages as concept, bases, elements, criterion and methods of compensation, this Article endeavors to give a brief account of this damages in Islamic jurisprudence as well as Iranian law.

Recognition of the nature of agreement is important in determining obligations based on contracts or bills and the enforcements of not fulfilling the agreement and also the enforcements of not fulfilling obligation in due date. In Iranian legal system, the parties’ agreement about the time of fulfilling contractual obligations is done through conditions of description which its enforcement for the violation is that the obligations must be fulfilled at once. Furthermore, the obligation’s due date being condition or not, the enforcement for the violation may be the obligation being canceled or the enforcements set for not fulfilling a contract. In English legal system, an agreement on setting a due date is explained under stipulation, the enforcement of the agreement not being reached is fulfilling the obligation in a reasonable time. In case the obligation is not fulfilled in due date, considering that it is the sub condition or the main condition, the result may be the contract to be cancelled or the right to claims for damages. Because in obligations raised from bills, the parties’ agreement to set the period of fulfilling the contract is of components of obligation, the enforcement in Iranian legal system is nullification of the obligation and in other legal systems (England, Geneva Convention and UNCITRAL) is that the obligation must be fulfilled at once. Furthermore, in case the obligation is not fulfilled in due date, joint and several responsibility of signers of a commercial document may be raised.