JOURNAL OF COMPARATIVE STUDIES ON ISLAMIC AND WESTERN LAW
Year:2018 | Volume:5 | Issue:1 (15) |Papers Count:7

From a long time ago up to now, the structure of civil liability in Common Law has been right-centered and based upon prohibited behavior formatted on forms of the action and focused on the effects and consequences of human action against rights of others. There is an increasing index of torts in Common Law each of which has its own title and specific elements and conditions. However, with the appearance of negligence and focusing on the general duty of care, the elements of a duty-centered and task-oriented structure were mixed with the previous one. This structure is a pluralistic one in terms of four indicators namely unity or plurality of Tort and Contract, Tort and Crime, general basis of civil liability, and examples of torts. In addition, the structure of our jurisprudential regime has been a right-based and consequential one based on the diversity of forms of human interference in different types of protected rights and interests. This structure is a pluralistic one in the sense of unity or plurality in three categories namely tort and contract, tort and crime and examples of torts. Nevertheless, it is regarded as an unitarianist and causative liability-focused structure in terms of unity or plurality concerning the general basis of civil liability.

From Wael-bin-Hallaq’ s point of view, the modern language construction, epistemology and its associated concepts has led to the breakdown of Islamic law from its historical past and its inclusion in the lexical and epistemological framework built upon an alien and heterogeneous basis. The "legal system" within the framework of the modern state requires a distinction between "the legal" and "the moral" and the stipulation of binding regulation in formal codes. While, Islamic law is based on the integration of the moral and the legal, and the dialectic between them. Additionally, the pluralistic characteristic of Islamic law prevents its inclusion in the framework of legislation. This narration of modern law and Islamic law, while being insightful, has some shortcomings that should not be ignored. The absolute claim of laying the political at the center of modern law and the absence of a distinction between the moral and the legal in Islamic law and its independence from the political, if not incorrect, seems at least controversial.

The question of freedom and its interpretation has been always the subject of contemplation by scholars and thinkers throughout the history. According to the atheistic view, the freedom is to be released from religious constraints, but monotheistic thinking calls the preservation of religious beliefs freedom. This issue becomes significant for the difference in understanding the meaning of freedom has led to regarding instrumental abuse of right to freedom as a measure falling in the ambit of freedom of opinion and expression by some western scholars. Meanwhile, Ayatollah Javadi Amoli determines series of criteria for freedom and elaborates on the compatibility and incompatibility of freedom with Islamic components. Therefore, the authors have examined the aforementioned discussion from the perspective of Ayatullah Javadi Amoli. The main purpose of this research is to study the value, explanatory and normative dimensions of the right to freedom of opinion and expression in the structure of various epistemological systems. The method of this paper is a descriptive-analytic one. In addition, data of the research was collected by means of a library-based approach. Findings of the research demonstrate that freedom in the philosophical system of this sage theologist is one of the sensual qualities that due to its uncertainty never can be absolute and unlimited. In accordance with this point of view, the real freedom becomes factual when is based upon wisdom and revelation.

Although there are many researches about offer and acceptance, the question of this study is investigating the formation of contracts in a comparative perspective with modern private law. Being conducted through a comparative method, the present research reinforces the possibility that the concepts of offer and acceptance have found a way to law of west from Islamic law. Accordingly, we witness numerous similarities between these two legal systems in this regard. The modern private law is similar to our legal system regarding the elements of the offer, its effects and the cusses of its termination such as the rejection of the addressee, revocation and the passage of the deadline. However, there are some differences in certain cases including the quality of determining the consideration of the offer, approval of modified acceptance or mutual acceptance in new instruments. In addition, contrary to Iranian law, the new instruments have not refered to some causes of termination of offer such as death and incapacity, loss of subject, and repetition of the offer. Furthermore, it is demonstrated that the advantage of western law is to breaking the examples and determining the similar cases and it is stated that which rational methods of modern law could be used in revising Iranian laws.

Although both Islamic jurisprudence and international sources have recognized certain rights for refugees, the concept of asylum and definition of refugee in Islam differ from those of international instruments. Phenomenon of asylum, analogous to having a broad range in terms of history and legal development in international law, has been accepted and possess a specific and distinguished position in Islam as well so that from the beginning of the establishment of Islamic state and even prior to advent of Islam, the tradition of asylum and protection of refugees had existed and have had a religious form. Asylum is called Amā n in Islamic jurisprudence. Being universal and toward the humanity as a whole, the view of Islam regarding rights of refugees is not a religious and exclusive one. Asylum entered into international treaties through the conclusion of the 1951 Convention relating to the Status of Refugees. Under international law, asylum is substantially of a recommendatory nature and has no strong guarantee along with an international mechanism. More or less, he rights and duties of refugees in Islam and international law are similar and due to the fact that Amā n is a contract, the Islamic state can, subject to not being contrary to prudence and divine law, accept the other conditions and rights of refugees as provisos. The present article, through an analytic method, aims at studying the rights of refugees in accordance to Islamic sources and international law comparatively.

Childbearing and its related aspects is one of the issues that is of significance in the current Iranian society and one of the factor which influences it is marriage. In addition, through the changes occurred in families and its relative collapse in western countries, the way of considering the issue of childbearing, while not losing its value and importance, has been highly different. The present study, through a descriptive-analytic approach, has attempted to answer the main question that what is the position of a variable such as marriage in vindication of the reproductive right of human in Islamic, UK and US legal systems? The results of this research demonstrate that in Islamic law, marriage is an important factor in vindicating the human reproductive right, so the singles cannot do so without it and even after the dissolution of marriage due to various causes like death, divorce, termination, apostasy etc., this vindication is limited and only in certain situations is permissible. However, in British law it is subject to the written permission of the husband and in US law, after the death of the husband, the wife can use his sperm for childbearing unlimitedly and give birth to a child in this way. The significance of this matter is illustrated when the rights of babies and children is the case. From the Islamic point of view, parentage as a basic and essential right can guarantee the other rights of the child, and if this right cannot be proven, then it would not be easy to talk about other rights of the child.

Traditionally, in most of the legal systems including Iranian one, it has been attempted to codify the “ general rules of contract” that govern the institution of contract regardless of its type. However, the legislator, at least in Iran, has not tried to codify the “ general rules of unilateral act” . On the other hand, although unilateral act has a highly determinative and essential role and is the most significant tool and method which the public authorities and organizations apply to perform their legal duties in public law and particularly in administrative law, “ general rules of public unilateral act” , and specifically “ general rules of administrative act” , have not been arranged and codified up to the present. Meanwhile, one of the areas which requires the arrangement of general rules governing the administrative act is the general rules regulating the conditions and quality of the dissolution of the administrative act. Accordingly, similar to being constituted and having legal effects, the administrative act may be terminated through certain causes too. In the present article, primarily, the concept and the necessity of recognizing the general theory of the causes of the dissolution of the administrative act as one part of the general theory of the administrative act will be discusses. Thereafter, emphasizing and paying attention to the types of administrative acts, the causes of terminating the administrative act would be explained.