NAMEH-YE-MOFID
Year:2003 | Volume:8 | Issue:5 (33 LAW)|Papers Count:13

Having offered a list of fundamental rights and freedoms, in this article I have argued in favor of their universalism v. their absoluteness. Making a justified distinction between two ideas of universalism and obsolutism and then advocating the idea of universality of certain morally restricted rights and freedoms against the idea of cultural relativism are the main achievements of this article. Also by distinguishing between macro and micro rights, I have attempted to justify sort of cultural pluralism in interaction with the idea of universalism. Offering a justified solution to solve the problem of the conflict of rights is another issue touched by the writer to define scope of certain universal rights and freedoms.

Our country’s law concerning the scope of civil liability arising from non-performance of obligations, has a history associated with ups and downs, so that it can be divided into three phases: the enactment of Civil Code in 1307 of solar calendar, adoption of Civil Procedure in 1318 and Civil Liability Law in 1339 and the Law of Procedure of General and Revolutionary Courts in Civil Matters) in 1379.Understanding legal developments in relation to our subject matter is not possible without examining its background in foreign legal systems, on one hand, and studying Fiqhi foundations and common doctrine among Muslim jurists, on the other.The paper is an attempt to study the scope of civil liability arising from non-performance first in foreign legal systems and then from a jurisprudential viewpoint and finally, its developments in our country’s law, especially in recent years.The paper argues that subjecting the demand of contractual reparation to express or implicit will of the parties (in Article 221 of Civil Code) by the civil legislator in 1307 is not pointless but rather was to adapt European law to Islamic Shi’a jurisprudence and was therefore necessary.Also the exclusion of non-profit loss from the scope of civil liability arising from non-performance, its limitation to deliberate destruction and causing and the intervention of the element of "fault" in contractual liability considered in the law of procedure of General and Revolutionary Courts (in civil matters) of 1379 are contrary to today’s customary principles. The mechanism envisaged in the Civil Code of 1307 which is the sole way of adopting a large scope for that liability is consistent with generally accepted doctrine in jurisprudence and also with principle 4 of the Islamic Republic of Iran’s Constitution.

The crimes of kidnapping and concealment constitute two examples of crimes against persons which in addition to depriving freedom and inflicting physical harm on the victim, violate the victim’s personality. One article of Islamic Penal Law deals specifically with the crimes while several articles have a general relation thereto, and ample regulations can be found in Iranian Criminal Law arsenal which bear on the crime. But the crime has drawn little attention in legal literature. So, the paper attempts to examine general and specific elements of the two crimes, pointing to the present state of Laws and regulations in order to determine the abrogating and the abrogated or general and special among them. This takes a large section of the paper, since there exist many ambiguities in the field which require critical examination. Also dealt with are issues such as jurisprudential viewpoints, the relationship of the crimes with similar crimes like arbitrary detention, factors aggravating penalty, attempt to commit the crimes and suspension of sentence.

One of the legal problems in combating terrorism is the establishment of jurisdiction over terrorist offenders. At present there is no obligation upon states to extradite the offenders or to try them. The obligation of extradition arises out of an extradition treaty. Political offenders are exempted from extradition and territories of some states have become a safe heaven for terrorist fugitives.The counter- terrorism conventions which have the similar structure seek to regulate or extend criminal jurisdiction of the contracting states over different forms of terrorism. All of the anti-terrorist conventions including universal and regional are founded on the principle of aut dedere, aut judicare. It means that the signatory states are obliged to prosecute offenders whenever extradition has not been granted. The offences enumerated in the conventions shall be deemed as extraditable offences and when it is required, the conventions shall be used as a surrogate extradition treaty.This system of enforcement has not been successful in controlling terrorism. No compulsory enforcement system can be found in any of the counter- terrorism conventions. When state parties refuse to do their obligations regarding extradition or prosecution of offenders, there is no effective mechanism to compel these delinquent states. Present treaties are too easily ignored by signatory states who often consider treaty obligations to political consideration. Therefore, it becomes necessary to develop a more effective legal system to ensure justice and to coordinate policy regarding this universal problem.

The September 11 attacks in the USA, while raising new issues in the political and security territories, have caused a new American approach towards international law, in a way that some obsolete terms and principles such as just war theory again come on the desk. In this process, the just war theory has been revalued and some political scholars issued declaration by which they aimed to justify the new policy of the USA government towards international law.This article aims to consider, first, the just war theory and its history and then to evaluate its legal justification. The background of just war in international relationships and in particular in international law, reviewing its legal definition as regards international law and finally the USA approach towards such theory in the new realm of international legal order, are three main themes of this article which are to be considered.

The paper, basing itself on Article 1105 of the Iranian Civil Code, examines the meaning and scope of "man’s presidency in matrimonial relationship" in Iranian legal system and its jurisprudential foundations. It is organized in two sections: The first section studies the concept and nature of man’s presidency over family and the second examines the scope and extent of husband’s presidency over wife.The paper argues that man’s presidency serves a social function and is a responsibility toward directing and determining the interests of family and protecting its members; it is far from being a means of seeking domination and supremacy. This status of husband as to wife (guardianship) and protecting family interests and does not affect financial and social independence of wife and does not permit any injustice on her.

One of the most recent issues of international law in the field of diplomatic law is the abuse of diplomatic immunities. The present paper first examines the concept of immunity and introduces diplomatic law instruments. It then studies the philosophic and legal foundation of granting immunities to state representatives, and thus clarifies the purpose of abuse of diplomatic immunities. Two principles of "non-intervention" and "respect for receiving state’s laws and regulations" occupy a central place in the paper. Followed are some examples and cases of the abuse of diplomatic immunities and in the end sanctions for the abuse are dealt with.