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Journal: 

PRIVATE LAW

Issue Info: 
  • Year: 

    2018
  • Volume: 

    6
  • Issue: 

    21
  • Pages: 

    119-147
Measures: 
  • Citations: 

    0
  • Views: 

    820
  • Downloads: 

    0
Abstract: 

The question of validity of the legal rule is one of the original questions in the legal schools dealt with a variety of responses. This article aims to explain the process of establishing legal rules in the Permissible area. The main issues addressed in this article are: What is the nature of the permissible area, why is there the Permissible area and how to adopt a legal norm? These issues have been evaluated in this article through descriptive and analytical research methodologies. Permissible area is an area in Islamic Sharia Law in which legal rules are established through the rational method and they are based on the concept of "expediency". Although the legal rules have a hypothetical nature, they are not pure hypothetical rules. Regardless of whether the legal rules are based on a hypothetical or real nature, "ultimate cause" could explain the connection between real proposition and legal rules. The advantage and disadvantage of the criterion of the legal rules depends on whether they are appropriate or inappropriate for the expediency". Religious interests, including the expediency of binding ordinances, the goals of religion and ethical issues, are among the issues that should be considered by the legislator in the process of legislating in the Permissible area.

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Issue Info: 
  • Year: 

    2024
  • Volume: 

    10
  • Issue: 

    3
  • Pages: 

    124-138
Measures: 
  • Citations: 

    0
  • Views: 

    31
  • Downloads: 

    2
Abstract: 

Background and Objective: In the field of medical jurisprudence, new issues arise that can only be addressed through the valid approach of rational deduction. However, this type of deduction faces significant challenges and has critics from non-Shia schools of thought who often struggle with a correct understanding of the scope of its authority. This research aims to investigate the concept and true place of reason in medical jurisprudence, analyze the scope of its authority, and prevent its uncontrolled use. Methods: This study is a library-based study with a descriptive-analytical approach. It utilizes the principles of Islamic jurisprudence, legal rules, and the scope of the authority of rational deduction as a source of reasoning, alongside a systematic understanding of Islamic law, to demonstrate the ability of jurisprudence to address contemporary issues in the field of medical science. In addition to library research, the study utilizes the Noor software. Results: Reason has two main applications in the ijtihad (independent reasoning) on emerging issues in the field of health: Independent: Reason functions as an independent source. In this application, reason operates in two independent fields: rational essentials or premises (mustaqillat al-aqliyyah) and non-essential rationalities or premises (ghayr-mustaqillat al-aqliyyah). In this application, the law of concurrence between reason and Islamic law is a fixed and accepted rule in jurisprudence, and both reason and revelation testify to its validity. Non-Independent: The scope of reason's function is defined in three areas: instrumental use, proof in legal rules and principles, and practical principles. Conclusion: The ruling of reason in rational essentials is absolute and certain, but in non-essential rationalities, it must be examined in each case whether a ruling of reason exists or not. Instrumental use, proof of apparent rulings, proof of general Islamic rulings and legal principles are three aspects of the lack of independence of reason in the deduction of issues in health jurisprudence.

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Author(s): 

SADEGH MANESH JAFAR | FAROKHI NIA (FARROKHSHAH) ALI

Issue Info: 
  • Year: 

    2012
  • Volume: 

    76
  • Issue: 

    79
  • Pages: 

    212-238
Measures: 
  • Citations: 

    0
  • Views: 

    4586
  • Downloads: 

    0
Abstract: 

Argues that the trial court’s judgment is subject to court proceedings and the parties through would cause assertiveness The definition of a result obtained Firstly, this method is similar to full and logical manner in which the subject and predicate are the basic case, the inference is obtained; Second, with foundations of legal reasoning is undeniable that the judicial process is understood to refer to any predicate without crossing the line of argument he rejected; Thirdly, it is a product of judicial reasoning logic support tools are based on the logic of science, the discovery of unknown cases, Fourthly, knowledge and understanding of the demands of the case, the argument is directed; And fifthly, the judge focused on the science knowledge through reasoning, not a science person. The topics discussed in this article, which is based on the lines cross - sectional study, is formed.

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Issue Info: 
  • Year: 

    2024
  • Volume: 

    7
  • Issue: 

    25
  • Pages: 

    192-220
Measures: 
  • Citations: 

    0
  • Views: 

    34
  • Downloads: 

    0
Abstract: 

This research article examines legal discrimination against children born out of wedlock in Iran. Despite laws promoting equality, societal attitudes influenced by beliefs continue to result in discrimination. The study explores the reconciliation of religious beliefs with legal frameworks and the changes made to the Iranian legal system in response to positive human rights developments. The Article seeks to bridge the research gaps by comparing the experiences of Iranian children with those in other countries affected by Islamic law. The study employs library sources and descriptive and historical research methods to examine the legal status of children born outside of marriage, both nationally and internationally, and the discrimination they face. The Article is structured into four distinct sections: an analysis of Islamic Law, a review of the Iranian legal system, an assessment of Iran's compliance with international conventions, and a discourse on the necessity of substantial positive change. The Article ultimately recommends the eradication of discrimination through heightened awareness and the advancement of inclusivity for all children, irrespective of their lineage. In summary, this research Article aims to shed light on legal challenges faced by children born outside of marriage in Iran, with the goal of promoting positive changes in their treatment.

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Journal: 

PRIVATE LAW STUDIES

Issue Info: 
  • Year: 

    2020
  • Volume: 

    49
  • Issue: 

    4
  • Pages: 

    561-580
Measures: 
  • Citations: 

    0
  • Views: 

    442
  • Downloads: 

    0
Abstract: 

Law is essentially a social phenomenon, and therefore is in full association with other social sciences. A legal rule must be interpreted to be understood, and for interpretation, we will also have to argue therefore, the relationship between reasoning, interpretation and law is unbreakable. Besides this, the three categories of base, source and purpose of the legal rule are considered as the contributors to each legal system. Which are as a problem, is that if we are to seek social justice and fairness in law, why it takes shape different arguments, sometimes conflicting, in the same subjects? Will this not damage the realization of the order as one of the goals of the legal system? This phenomenon is explained as pluralism of legal argument, which is shaped by various factors, most notably ideology. The mutual relation between law and ideology in legal pluralism is controversial. Depending on what the ideology governing the mind of a legal practitioner is, his kind of argument in the interpretation of the legal rules will be equally different, which will be discussed in detail in this study.

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Author(s): 

MARDIHA S.M.

Issue Info: 
  • Year: 

    2006
  • Volume: 

    -
  • Issue: 

    29
  • Pages: 

    91-111
Measures: 
  • Citations: 

    0
  • Views: 

    295
  • Downloads: 

    0
Abstract: 

The methodology of social sciences has always been a matter of much controversy, and it probably will remain so in the foreseeable future. The debate on the method and nature of these sciences is a corollary of their historical development: it began early, as they evolved and rose to prominence. The most important methodological issue in this field was the question of the extent social and physical sciences could be considered similar or different. In philosophy of social sciences a dualistic version maintains that the method of argumentation in these sciences is "natural reasoning". The location of natural reasoning is somewhere between the customary persuasion method and law-like verification method. Natural reasoning depends upon "natural language" more than formalization. It is being said that within such a space, social sciences afford neither falsification nor generalization. Such a claim is perhaps less disputable in political science and anthropology than it is in sociology and economics. Nonetheless, the hard shell of this claim Govers all human and social sciences. This claim amounts to a theory which holds on a fundamental duality of method in human and non-human sciences.The present article seeks exposition and interpretation of such an idea of duality. It looks at its foundations, contents, implications, and presents a cursory criticism of it. Framed within a philosophical analysis and a comparative method, the author will defend the idea that a hardliner dualism is not viable versus a methodological pluralism which does not deny the unity of genus science.

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Author(s): 

ALAVI FAROUGH

Issue Info: 
  • Year: 

    2010
  • Volume: 

    1
  • Issue: 

    2
  • Pages: 

    119-133
Measures: 
  • Citations: 

    0
  • Views: 

    956
  • Downloads: 

    0
Abstract: 

One of the disagreeable character traits found in some individuals is their mistake in their unanalyzed comparisons they make due to the apparent similarities existing between two individuals or two phenomenon, and as a result influences their unacceptable judgments.This concept in Maulana's Mathnavi sometimes is applicable in a full story like the story of the Grocer and the Parrot; the individual's mistake sometimes manifests itself amidst other materials. The mistake reaches the point that if they expect a difference between the Holy Prophet and others, this difference is in their food and sleep and other worldly indications referred to even in the Holy Koran; in any case, probably the summary and the gist of the subject can be best found in Mathnavi's beautiful and famous verse that is: Kare nikan ra ghias az khod magir/ garcheh bashad dar neveshtan "shir" shirThe word "shir" is ambiguous in that it means "lion" and "milk".

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Author(s): 

ALSHARIF M.M.

Journal: 

PRIVATE LAW STUDIES

Issue Info: 
  • Year: 

    2007
  • Volume: 

    37
  • Issue: 

    2
  • Pages: 

    1-39
Measures: 
  • Citations: 

    2
  • Views: 

    2480
  • Downloads: 

    0
Abstract: 

In accordance with classical understanding of the principle of separation of powers, the task of a judge is merely to discover the intention of legislator and to apply it to the facts of cases. The motives behind the achieving judicial security and the existence of factors such as syllogistically form of judicial reasoning and the necessity of deduction of all the results from law has led to the traditional tendency among jurists to present judicial syllogism within the context of formal syllogism.Formal syllogism or deductive reasoning based on formal logic, reasoning possesses a necessary process and there would be no true outcome but one, and there would remain no room for doubt. A precise look at the minor and major judicial syllogism demonstrates that the notion of change of judicial syllogism to that of formal, definitive, and objective is nothing but a naive fiction far from achievement. The impossibility of making the legal concept clear and the existence of defects in and of law, as well as conflict of laws, on the one hand, and impossibility of reaching definitiveness and certainty at verification of factual stage of a case, on the other hand, do not allow formalism and change of judicial reasoning into formal and necessary reasoning.Due to the fact that judicial reasoning is unnecessary, these reasoning, unlike reasoning that are subject to formal logic are not free from the intervention of human factors.The type and quality of that intervention and the usage of this flexibility and broadness by a judge are determined by the characteristic features of each legal system and the foundations concerned.

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Author(s): 

Heydarian dolatabadi Mohammadj avad | Aliakbari Babukani Ehsan

Issue Info: 
  • Year: 

    2024
  • Volume: 

    7
  • Issue: 

    25
  • Pages: 

    152-191
Measures: 
  • Citations: 

    0
  • Views: 

    10
  • Downloads: 

    0
Abstract: 

Competition law is a newcomer to the legal system recently. A sound understanding of competition policy can provide us with sufficient bases to apply a fundamental and normative view of the issues of competition law. The difference in supervision and regulation determines how the market functions and in order to understand this difference one must understand competition policy. Competition policy may be based on governmental support for national production and industry or on a non-interventional and regulatory posture. Moreover, supervision, based on the principle of non-intervention in the market mechanism, is rooted in liberal ideas; however, regulation, whether as a rule or an exception, is based on the assertion that the market has been ineffective in attaining its goals. Therefore, the government will resort to interventions to regulate inefficiencies.  This paper aims to analyze Supervisory Authority in Implementing Competitive Policy by employing the description method. In this article the author tries to first delineate competition policy, its related requirements and imposed deviations to the market. Then, by defining the supervisory entity and clarifying its distinction from the regulatory institutions, the author considers the characteristics of an appropriate supervisory entity conducting a comparative study of this issue in Iran and the U.S.A. This form of Competition policy because of its applicable experiences which have been well described by recent scholarship is considered suitable for the native system.

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Issue Info: 
  • Year: 

    2022
  • Volume: 

    4
  • Issue: 

    8
  • Pages: 

    91-116
Measures: 
  • Citations: 

    0
  • Views: 

    56
  • Downloads: 

    16
Abstract: 

In the present age, the religious fanaticism among followers of Takfiri Salafism has had a tremendous effect on the sociopolitical evolutions in some Islamic countries. This movement has issued decrees about the exit of Islamic denominations from the realm of Islam and has caused the emergence of numerous violent behaviors in those countries. Thus, understanding the factors for formation of that movement is so important. In this article, we have attempted to deal with the effect of formalism on religious fanaticism in the framework of ‘legal reasoning’ (ijtihâ, d) as the common framework in understanding Islamic texts. The findings of this study show that the factors leading to formation of religious fanaticism in that movement are as follows: formalist legal reasoning,priority of transmitting hadiths over contextual study of them,Takfiri Salafist approach to following religious experts,and formalist understanding of some religious concepts and doctrines such as ‘association with God’s friends’ (walâ, ʾ, ) and dissociation from God’s enemies (barâ, ʾ, ), takfî, r (excommunication), tyrant (ṭ, â, qû, t), tatarrus, jihad and the like.

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