JOURNAL OF COMPARATIVE STUDIES ON ISLAMIC AND WESTERN LAW
Year:2024 | Volume:11 | Issue:3|Papers Count:10

Although it is possible to present a general and apparent interpretation of the foundations and justifications of the idea of "governance" through understanding the structure and legal developments of societies and considering the way citizens and the state interact, understanding its underlying layers (the issue of governance) is completely inconsistent with such an attitude. Based on this belief, the present research aims to gain a sound understanding of the theoretical foundations of governance in Islamic and medieval thought, and then to evaluate and interpret this idea among Islamic thinkers and compare it with the mindset of Western thinkers in the Middle Ages. The approach that governs this comparative assessment is such that first introduces the theoretical foundations of governance in Shiite and Sunni political thought, and then to examine the conceptual developments of governance in the thinking of prominent Western thinkers in the Middle Ages, regardless of the differences and similarities with Islamic governance. The theoretical framework of the present article, in an analytical-descriptive manner, considers the guiding theoretical foundations of governance in the components of Shiite thinkers' thought to be based on the theory of ‘Imamate’ and in Sunni thought, on the theory of ‘caliphate’; and in comparison, it seeks the theoretical foundation of the idea of governance from the perspective of Western legal philosophers and theologians of the Middle Ages in the light of the theory of ‘divine sovereignty’. Finally, with an interpretive approach (legal hermeneutics), it aims to point out a governance model that is compatible and consistent with both views.

Although the development of cyber space and new technologies has brought countless advantages and merits to human life, but it is considered a threat to the life of cyber space and one of the rights of intellectual property called hijab. Since hijab as an outer covering and chastity as an inner covering play a significant role in the social and psychological security of the society, so it is necessary to recognize and support it as an intellectual property right. In addition, identifying and supporting hijab and chastity in the position of respecting privacy and observing it is a preventive measure in the occurrence of social harm. Islamic teachings also forbid showing off in public, as it harms human beauty and real perfection as a spiritual right. From a comparative point of view, and especially the common law, trademark weakening and abuse of other unregistered trademarks are provided in the laws, which they can be an appropriate sanction in order to support the owners of creative ideas such as hijab and chastity. The present article, with the help of descriptive-analytical method, tries to highlight the protective role of the law on hijab and chastity as a right of intellectual property and privacy.

Can the lives of innocent people be used as a means to save more people? Can we kidnap a person to prevent child abuse? In general, does the end justify the means in these cases? In the academic space, these questions have been explored under the title ‘Trolley Problem’ and numerous answers have been given by researchers so far. In this article, the author attempts to solve the trolley problem based on the principles accepted by Imamieh jurists; however, given the existence of detailed literature on this topic in American law, the discussion will be presented as a comparative analysis with American law. In short, Imamieh jurists, as well as American lawyers, believe that the end justifies the means and that the lives of some can be sacrificed to save a larger population. To prove this claim, in Islamic jurisprudence, the author focuses on the issues of interference, specifically the rule of ‘repelling the most corruption with corruptionist’. as in American law, the discussion also will focus on the rule of ‘lesser evil’.

In today's era, the sovereignty of individuals to determine their own destiny the present era is considered as a fundamental principle in the realization of democracy and, subsequently, the guarantee of human rights and freedoms in all aspects of personal and social life. In this regard, people with disabilities, who constitute an important part of the world community, will have the right to enjoy this right. The way to guarantee it has evolved with the design of classical charitable and medical models, as well as modern social and human rights models; but in the present era, the most significant factor in the existence of unfair discrimination is the lack of recognition of the right to sovereignty of people with disabilities by benefiting from public participation. The ruling authorities cannot effectively be in the place of the representatives of this part of the society, and decisions and decision-making are often set without knowing their rights, and governments make themselves the ruler of the fate of people with disabilities by providing obligations in various fields. Codifying effective legislative policies and predicting the means of guaranteeing this fundamental right will be an effective step in guaranteeing this matter. Therefore, by using the analytical-descriptive method, while studying the components and foundations stated in international documents and Iranian laws, we will outline the rules and principles governing the guarantee of the sovereign right of people with disabilities over their destiny in order to achieve equal opportunities.

The knowledge of the perpetrator is one of the most challenging components of the realization of crimes in Iranian criminal law and International Criminal Law. In the system of international criminal law, before drafting of the statute of International Criminal Court, and in Iranian criminal law, before the Islamic Penal Code 1392, the issue of the perpetrator’s knowledge was never discussed independently. In the Rome Statute and in the Islamic Penal Code, under the mens rea, it has referred to the knowledge of the perpetrator for the realization of crimes. However, despite these provisions, this issue still faces conceptual challenges due to the use of vague terms in the definition of knowledge. Thus, in this study, this issue was examined descriptively and analytically and the results of this research include determining the concept of knowledge in Iranian criminal law and International Criminal Court. This research also shows that logical knowledge for predicting the criminal result includes the prediction of a certain and definite outcome, not a possible prediction; on the other hand, knowledge as a cognitive element in some cases can replace or cover the administrative element.

The Partnership Securities’ Issuance Manner Act of 1997 mentions to an agent bank that a guarantee by the partnership securities’ publisher is entrusted to it, so that if necessary, it can on its own initiative pay out of that guarantee the principal, interest on account and realized interest of the partnership securities to their holders. Contrary to the original idea, that bank is thus not the guarantor but the representative, i.e., the representative in paying the above amounts from the ‘fund of guarante’. This agency is also seen in the name that the legislature has assigned to it, namely the ‘agent’ bank. But whose agent is this? Partnership securities’ publisher or holder? Given their designation by the publisher, they first appears to be the publisher’s agen, but more precision shows the opposite; because they take over mortgage (assurance) deposited by the publisher, whereas we know the mortgage must be taken by the mortgagee and principally kept at his disposal, so they are partnership securities’ holders agent. Therefore, the issue arises that considering the partnership securities’ transferability, how can principals change but agents’ representation remain the same? Here it seems that legislature in this case likely, under influence of the other countries’ law, considers agency to be transferable in all cases of agency, brokerage, undisclosed commission, tenure to transportation, commercial representation, and in general, in all forms of commercial agency. Not the binding nature of agency but only its transferability is meant. In this regard, what attracts attention is transferability of agency’s representation (not revocation of agency) with death, incapacitation or change of the principal, but on a case-by-case basis, it can also think about death, the incapacitation and changing the agent.

Partial defence of the ‘loss of control’ to the offence of murder is used as an independent defence in the English law. In order to examine the position of this defence in criminal law system of Iran, we introduced and compared its bases and requirements to the defence of intoxication; because if the basis for accepting the defense defence of ‘loss of control’ is the lack of control over behavior due to provocation and the ability to recognize from the provoked person, it can basically be close to intoxication. This kind of the defence as partial defence can only reduce the defendant’s conviction for murder to manslaughter and it will not lead to the absolute acquittal. The significant similarities between the defence of intoxication and ‘loss of control’ are the lack of the ability to recognize and adapt behavior to the requirements of reason and the law, the temporary nature of the condition, the relative nature of their effect and also their use in murder; and one of the differences between them is that the provoked person did not play a role in the creation of the situation, while the excusatory intoxication can be self-induced. But the important distinction between them is that the grade of lack of control is not the same. This means that being losed of the power is considered a more severe and higher stage than losing the ability to control behavior due to provocation. Therefore, the condition of intention and power in a state of intoxication and provocation cannot be considered the same, and by resorting to an analogy with the defense of loss of power, the defense of ‘loss of control’ can be considered consistent with the basics of the Iranian criminal law system.

In this article, the theory of self-help remedy has been studied as a remedy for breach of obligations in reciprocal contracts in Iranian and English legal systems and some international instruments. In English legal system and some international instruments such as Principles of European Contract law (PECL) and UNIDROIT Principles of International Commercial Contracts, lien and price reduction has been recognized as examples of self-help remedy in reciprocal contracts. In Iranian legal system, although self-help remedy has not been recognized as a general rule for breaching contractual obligations, but the lien has been recognized as particular rule, which is one of the examples of self-help remedy in the other systems. Although, there is some disagreement among legal scholars about the scope of the lien as a general rule or an exceptional rule which is related to contract of sale particularly, it seems that the effects and ruling of the self-help remedy theory in Iranian legal system can be justified and accepted by the rule of Taghas in Islamic jurisprudence.

Hijab is one of the branches of religion, it is effective in society and it is the subject of special attention and care of religious scholars and religious community, and it is one of the certainties and necessities of Islam, and many verses and Hadiths clearly indicate it. The provisions of the satutue law also provide special sanction for violating Hijab. The main question of this research is that from an epistemological and educational perspective in the Islamic system, what is the basis and necessity of Hijab and the legal sanction of its violation? In response, with the descriptive and analytical method, we came to the conclusion that the fundamental goal of religion is to educate and develop man, and to rise to righteousness and his path towards God. Hijab is considered one of the necessities and prerequisites for human growth, and from this perspective, its scope and limits, and the necessity of observing it by both men and women, are also determined. Purpose of religion and the religious government is to create a basis for human development and to achieve happiness in the hereafter and the prerequisite of this purpose is to clean the society from any pollution that disturbs and hinders human growth. In addition to creating a healthy and constructive environment and cultivating and educating people, with evidence, Quran, and standards, Holy lawyer deals with any kind of corruption and deviation, and in the legal system has enacted civil and criminal sanctions for violatating it. Hijab is special for men and women to moderate and control their emotions and passions and to create immunity and for the active presence of men and women in the society, and it causes the removal of many sins and corruptions and is the basis for attaining divine nearness. In the Western worldview based on humanism, individualism, the principle of hedonism and the originality of the human body, especially women's, is reduced to the level of a tool and manifestations of clothing that contradict this principle are fought against.

According to the statute of the International Criminal Court (ICC), one of the cases of jurisdiction of the ICC as a judicial court that tries international criminals is when the accused is a national of one of the member states of the Court. This is while the statute of the Court does not provide a solution to establish the nationality of the accused. This issue does not pose a problem for those of single nationality, but, considering the increased number of people with dual nationality in the world, this issue reveals the shortcoming of the statute when an accused has dual nationality with one of the member states and a non-member state of the Court. Due to the fact that non-member states of the Court are against the trial of their nationals in this court, the manner of determining the jurisdiction of the Court to try people of two or more nationalities has legal importance. The importance of this discussion was augmented by the proposal to prosecute the leader of North Korea in the ICC (despite the non-membership of this state) by some non-governmental organizations relying on his South Korean nationality (a member state of the Court) in 2016. This article seeks to answer the question that what is the basis of the Court's performance in order to establish its jurisdiction in facing people of dual nationality, one of whose governments is a member of the Court and the other is not? In this article, by using library sources and an analytical method, the author proves that despite the silence of the ICC statute, the Court can, according to the approaches that exist in international law to establish nationality, acts in a manner that prevents being unpunished, as well as with respecting the sovereignty of non-member states, prevents the prosecution of their nationals without providing strong legal evidence.