ENCYCLOPEDIA OF COMPARATIVE JURISPRUDENCE AND LAW
Year:2023 | Volume:1 | Issue:2|Papers Count:14

This article examines the impact of Islamic laws on reducing economic corruption and improving financial transparency using the theories of Arthur Okun and Mohammad Baqir al-Sadr. In the first section, the theories of Okun and Sadr are analyzed in detail and a comparative analysis is conducted between them. Okun, as a Western economist, emphasizes the importance of financial transparency and corruption reduction through the creation of transparent financial structures. In contrast, Sadr, focusing on Islamic principles and distributive justice, believes that Islamic laws can help improve financial transparency and reduce economic corruption. The second section of the article addresses the challenges and obstacles to the implementation of Islamic laws in the financial sector and proposes solutions to these challenges. Additionally, the possibility of adapting Islamic laws to global financial systems and suggestions for compatibility and improvement of these laws are examined. The findings of this study indicate that Islamic laws, with an emphasis on principles of justice, transparency, and ethics, can significantly contribute to reducing economic corruption and improving financial transparency. This article concludes with recommendations for future research, aiming to further enhance studies in this field.

This article examines the opportunities and human rights challenges arising from the phenomenon of hacktivism from the perspective of Islamic jurisprudence. The objective is to present a jurisprudential framework for assessing this type of activity and its implications for human rights. The present study employs a descriptive-analytical method and relies on library sources, including jurisprudential texts, legal documents, and scholarly articles related to hacktivism. Hacktivism may be regarded as a tool for exposing injustices and defending violated rights, which aligns with the general principles of enjoining good and forbidding wrong in Islamic jurisprudence. However, the methods employed in hacktivism, such as violations of privacy and disruption of systems, create serious ethical and legal challenges that require precise jurisprudential scrutiny. Hacktivist actions, with their dual nature, create challenges for the international criminal justice system, as they often blur the boundaries between lawful conduct and criminal activity. This duality raises fundamental questions regarding legitimacy, moral and legal responsibility, and the manner of addressing this phenomenon from the perspectives of human rights and Islamic jurisprudence.

This article conducts a comparative study of Iran's tax laws based on the theories of Adam Smith and Seyyed Jamaluddin Asadabadi. Adam Smith, as the founder of modern economics, proposed principles such as justice, certainty, proportionality, and economic efficiency in taxation, which are still used in modern tax system designs. Conversely, Seyyed Jamaluddin Asadabadi, with an emphasis on social justice and equitable wealth distribution, offered unique perspectives on taxation. This article examines the history and evolution of tax laws in Iran and compares them with the theoretical principles of Smith and Asadabadi to analyze the strengths and weaknesses of Iran's tax system. The findings indicate that while principles of justice and transparency have been largely implemented in Iran's tax system, complexity, excessive bureaucracy, and pressure on lower-income groups remain major weaknesses. Finally, the article provides recommendations for improving Iran's tax laws based on the theories of Adam Smith and Seyyed Jamaluddin Asadabadi. These recommendations include simplifying tax laws, strengthening oversight and enforcement, adjusting taxes based on payment ability, increasing transparency, and leveraging international experiences.

This study, using a descriptive-analytical method, conducts a comparative analysis of absurd (irrational) penalty clauses in Iranian and French law. Undoubtedly, rationality is a fundamental feature of all legal acts. Sometimes the acts and omissions of legally competent individuals are deemed, from a customary perspective, to lack a rational purpose, and are described by reasonable people as irrational or absurd. Absurdity is not exclusive to contracts of sale but also applies within the scope of commutative contracts, ancillary contractual conditions, and unilateral juridical acts. The inclusion of absurd conditions in contracts, such as a penalty clause where there is no rational or customary proportionality between the stipulated contractual damages and the actual damages, can be considered an example of absurd contractual clauses. In Iranian law, the legislature has made no reference to absurd conditions, and there is disagreement among jurists and legal scholars regarding their legal status. Some hold that such conditions are valid, while others consider them absolutely void. In French law, juridical acts deemed absurd in the sense recognized in Iranian law do not exist; however, Articles 1152, 1230, and 1231 of the French Civil Code and Clause 5 of Article 1231 of the French Law of Obligations address this type of clause and permit judicial control over penalty clauses, allowing the judge to increase or decrease the amount of an excessively high or unreasonably low penalty.

This article examines and compares animal rights in Islam and international law, drawing on the theories of Peter Singer and Allameh Tabataba'i. Initially, it explores the jurisprudential and ethical foundations of animal rights in Islam and the influence of Quranic principles and prophetic traditions on Allameh Tabataba'i's views. Subsequently, the history and evolution of animal rights in international law and the impact of Peter Singer's theories on the formulation of international treaties and laws are analyzed. The article also includes case studies on the conditions of animals in slaughterhouses, the use of animals in scientific research, and the rights of domestic animals. The conclusion summarizes the discussions and provides suggestions for improving and developing animal rights. Additionally, the mutual influences of Singer and Tabataba'i's theories on the future development of animal rights are examined. This study demonstrates that integrating ethical and religious perspectives can help create a comprehensive and balanced framework for animal rights, which considers both moral and religious principles as well as utilitarianism.

This article examines and provides a comparative analysis of property rights in Islamic and non-Islamic countries using the theories of John Locke and Allameh Tabataba'i. Initially, the philosophical and legal foundations of property rights in Islam, based on the Quran, Sunnah, and jurisprudential opinions, are elucidated. Allameh Tabataba'i introduces property rights as a divine and social right that should be accompanied by principles of justice and social responsibility. Subsequently, the historical development of property rights in the West is reviewed, analyzing John Locke’s theories, which emphasize natural rights and secular principles. Locke asserts that property arises from an individual's labor and should be protected by governments and laws. The comparative analysis reveals that Tabataba'i’s views are rooted in religious and divine rights, whereas Locke’s views are based on secular and natural rights. The challenges of property rights in both legal systems are discussed, and solutions for improvement are offered. Finally, the importance and impact of this study on the development of property rights and the enhancement of social justice are emphasized. This article can assist legislators and policymakers in formulating laws that equitably and effectively implement property rights by better elucidating religious and legal foundations.

Air cargo transportation, as one of the fundamental pillars of international trade, plays a decisive role in the speed, security, and efficiency of global exchanges. In this regard, air transport agents occupy a special position; as intermediaries between carriers and cargo owners, they assume significant responsibilities in issuing transport documents, drafting contracts, and coordinating the movement process. The legal liability of these agents, from various perspectives, has been a subject of debate both within the Iranian legal system and under international conventions such as the Warsaw and Montreal Conventions. Studies indicate that, in Iranian law, the position of the air cargo transport agent has not been precisely and coherently defined, which has led to challenges in determining the scope of their liability. In contrast, international conventions have sought, by providing uniform rules, to establish a balance between protecting the interests of cargo owners and limiting the liability of carriers and agents. Nevertheless, recent developments—such as the digitalization of transport documents, the expansion of multimodal transport, and the shift from fault-based liability to strict liability—have added new dimensions to this field, which Iranian domestic laws have not yet fully aligned with. This article, adopting a comparative approach, analyzes the challenges and developments of air cargo transport agents’ liability in the light of Iranian law and international conventions, and finally offers suggestions for reform and for harmonizing the Iranian legal system with international standards.

This article presents a comparative analysis of the theories of Otto von Bismarck and Imam Muhammad al-Baqir (AS) on retirement rights. Otto von Bismarck, the founder of the modern pension system in Germany, emphasized mandatory and participatory social security principles aimed at providing sustainable and broad financial support for elderly workers. In contrast, Imam Muhammad al-Baqir (AS) focused on social justice and support for the needy, with financial resources provided through zakat and alms. The article begins by examining the lives and activities of these two prominent figures and then analyzes the principles and foundations of their theories on retirement rights. The cultural and social impacts of these theories are also explored. Additionally, considering the conditions and requirements of contemporary societies, the feasibility of integrating these two theories to create more efficient and equitable pension systems is discussed. Finally, recommendations for improving pension systems are provided, incorporating the principles of both Bismarck and Imam Muhammad al-Baqir (AS) to achieve sustainable funding, social justice, and support for the needy.

Bank guarantees are among the most significant legal instruments for securing financial obligations in both domestic and international commercial relations. Unlike the traditional institution of civil suretyship, this instrument features an independent, irrevocable structure grounded in commercial and banking customs. The governing principles of bank guarantees—including the principle of independence from the underlying contract, the principle of immediacy, the principle of documentary appearance, the principle of good faith, the principle of prohibition of abuse of rights, and the principle of the beneficiary’s reliance on the bank’s commitment—offer a coherent framework for interpreting, drafting, and enforcing these instruments. Accordingly, the aim of the present study is to elucidate the governing principles of bank guarantees in Iranian law. The findings, derived from a descriptive-analytical methodology and library-based sources, reveal that in the Iranian legal system, due to the absence of a specific statute on bank guarantees, these principles play a critical role in filling legal gaps, organizing banking practices, and guiding the legal interpretation of guarantee instruments. Judges, legal advisors, and arbitrators, by relying on these principles, are enabled to make decisions aligned with international commercial customs and equitable trade practices. Furthermore, these principles are extensively applied in drafting guarantee texts, determining demand conditions, limiting the bank's liability, and combating fraudulent or fictitious claims. The results of this research indicate that these principles not only serve as the current interpretive and operational basis, but also possess the potential to become the backbone of future legislation regarding bank guarantees. Their coherence, broad applicability, and alignment with international standards have rendered these principles a strategic tool in the advancement of banking law in Iran.

Economic law, as one of the most significant branches of public law, has considerable impacts on economic development and social welfare. In this article, a comparative analysis of economic law in Islamic and non-Islamic countries will be undertaken. Drawing on various sources and research, this comparison will analyze aspects such as the banking system, economic development, environmental law, and business ethics. In conclusion, it can be said that economic law in Islamic and non-Islamic countries has significant differences stemming from distinct legal, cultural, and religious foundations. Research indicates these differences and their effects on the economic and social development of countries. Given these differences, it is essential to pay special attention to these aspects in the formulation and implementation of economic laws to achieve the best outcomes for sustainable development and social welfare.

The right to a fair trial encompasses a set of principles and rules established to protect the rights of the parties involved in legal proceedings. These guarantees, recognized as fundamental and essential human rights, are explicitly referenced in international human rights instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the American Convention on Human Rights. This right is also examined comparatively within the legal frameworks of Iran and England. This research is theoretical in nature, utilizing a descriptive-analytical method. Data collection was conducted through a library-based approach by consulting documents, books, and scholarly articles. The findings of the study indicate that if the international principles of a fair trial are implemented with precision and courage, they lead to the strengthening of public trust in fair and reliable adjudication. This is due to the fact that the integrity and proper functioning of other branches of government depend on the health and credibility of the judiciary. The principles of fair trial in civil proceedings are shared between English law and Iranian law. However, in both jurisdictions, these principles lack explicit enforceable guarantees. The enforcement mechanisms that do exist stem from the implicit acceptance of the spirit of fair trial principles, which are acknowledged within the laws of Iran and England. These mechanisms are not the result of explicit statutory provisions specifically designed to enforce the right to a fair trial.

Partial termination of contract” refers to the dissolution and reversal of the effects of a contract only with respect to the disrupted part of its subject matter, and it is contrasted with “total termination.” This study, with a descriptive–analytical and comparative approach, examines the scope and possibility of recognizing partial termination in Iranian law and French law. The foundation of this analysis is based on domestic legal sources, including Articles 422, 427, 431, and 441 of the Iranian Civil Code, as well as international instruments, particularly the 1980 Vienna Convention on Contracts for the International Sale of Goods (CISG), which are relied upon for a precise explanation of the concept and scope of partial termination. According to the Iranian Civil Code, the principle is that contracts are indivisible and termination occurs in an integrated manner, while the recognition of partial effects is mainly justified under exceptional doctrines such as khiar tab‘oḍ ṣafqah (option of partial loss), arsh (compensatory abatement), or party agreement. In contrast, French law—particularly after the 2016 reforms—provides, in cases of partial breach, the possibility of termination with respect to the impaired part, as well as the use of alternative remedies such as price reduction. The findings indicate that although the traditional framework of Iranian law provides limited flexibility for recognizing partial termination, it is possible, through interpretation aligned with the “principle of contract preservation” and “party autonomy,” and also by means of legislative reform, to strengthen the explicit recognition of partial termination or equivalent remedies (such as price reduction) and to clearly delineate its boundaries from similar doctrines such as arsh and khiar tab‘oḍ ṣafqah.

Contextual indicators (qarā’in), as interpretive and situational elements, play a fundamental role in discovering the intent of the Lawgiver and in structuring verbal implications throughout the process of ijtihad (jurisprudential reasoning). Despite the significance of these components, discussions related to contextual indicators in both Imāmī (Shi‘a) and Sunni uṣūl al-fiqh (principles of Islamic jurisprudence) are often fragmented, lacking structural coherence, and remain unsuitable for systematic application. The present study, aiming to design a stage-based and operational framework, seeks to present an integrated model grounded in the shared principles of both schools, thereby clarifying the position of each indicator in the formation of apparent meaning (ẓuhūr), the preference of interpretations, the synthesis of evidences, and the activation of procedural principles (uṣūl ‘amaliyya). The research method is analytical-comparative, employing both historical and structural examinations of contextual indicators across four evolutionary phases of uṣūl al-fiqh. From this examination, three common jurisprudential principles are extracted: the foundational principle (contextual indicators are a necessary condition for the realization of valid apparent meaning), the structural principle (classification of indicators into connected, disconnected, situational, and rational types), and the functional principle (the presence of contextual indicators at all levels of implication). Based on these foundations, a sixfold classification of indicators has been developed, encompassing origin (scriptural, rational, customary, sensory), form (verbal or nonverbal), connection (connected or disconnected), strength of effect (definitive or presumptive), semantic function (restrictive, explanatory, determinative, personal, generic), and jurisprudential application (contextual or complementary). A four-stage model is also proposed, organizing the movement of contextual indicators through the phases of primary appearance, secondary appearance, interaction of evidences, and procedural principles. The findings indicate that contextual indicators present at the moment of speech issuance form the basis of the primary appearance, while complementary indicators function in the subsequent stage by influencing restriction, specification, preference of meaning, and harmonization among evidences according to customary understanding. A case analysis of the issue of the purity of the People of the Book confirms the practical efficiency of this framework in analyzing complex jurisprudential problems, demonstrating that the proposed theory enhances both the precision of legal derivation and the coherence of the ijtihad process.

The challenges associated with default judgments in Iranian civil proceedings, viewed through the dual lenses of Imamiyyah jurisprudence and statutory law, constitute a critical issue for ensuring judicial fairness and the protection of litigants’ rights. This article, focusing on Article 303 of the Iranian Civil Procedure Code, analyzes the jurisprudential and legal foundations of issuing a default judgment, as well as the necessary conditions for doing so—including the absence of the defendant, the lack of a written defense, and the absence of actual service of notice. First, the concept of non-appearance in litigation and its limitations within Imamiyyah jurisprudence is examined, clarifying the distinction between provisional decisions and final judgments. Next, the fundamental principles of fair trial and the right to access justice are elaborated, emphasizing their role in preventing violations of the parties’ rights. The article also explores the adversarial principle in adjudication and its significance in ensuring equality and the possibility of defense for both parties, supported by historical review and legal documentation. Furthermore, the study addresses existing ambiguities in the conditions for issuing default judgments, including the requirement of a written defense and actual service of notice, and examines the role of submitting a power of attorney or a counterclaim in removing the label of a default judgment. Finally, the article discusses challenges related to requiring a guarantor or security from the judgment creditor in default judgments and highlights differences between this requirement and established jurisprudential and legal principles. The findings indicate that the overlap between statutory provisions, jurisprudential reasoning, and judicial practice has generated uncertainty in distinguishing between default and adversarial judgments, demonstrating that precise analysis of their conditions and evidentiary foundations is essential for realizing a fair trial.