پژوهشنامه حقوق اسلامی
پیاپی 25 (بهار و تابستان 1386)

Since Islam, as the final divine religion, proclaims its laws as consistent with the innate nature of man, the idea of natural rights in Islam is not a strange legal though. A large number of Muslim thinkers have contributed to the foundation of a legal school other than the ancient Greek and Roman schools. This school is as old as the legal thought of human being. The present article deals with the principle of the consistency of legal rights in Islam with the basic rights of man based on the school of natural rights. One of the essential problems here is the anterior position of law compared to rights. This attempt to discover the natural law and the Islamic logic and interpretation of the same toward founding a comprehensive and universal legal system for man. Thus we would be able to prove the finality of the religion of Islam and the comprehensiveness of the teachings of this religion.

Theory of constitutional interpretation seeks to find out what is the aim in interpreting the constitution and Hans George Gadamer's Philosophical Hermeneutics is an insightful work in this matter. By introducing the model of Dialogue, Gadamer wants to see the nature of understanding and interpretation in a new and different way.In interpreting constitution, Guardian Council, as the official interpreter of Constitution of Islamic Republic of Iran, follows a method rooted in osula- al- figh. This method promises the interpreter to show her the Pre- existed, True and Final meaning of the words or phrases of the text (here the constitution). In contrast, in philosophical hermeneutics words, phrases and text find the meaning in relation with their usage in present situation and when their Horizon is fused with interpreter’s horizon.

Humanitarian law is a reconciliation between military necessities and humanitarian considerations the ultimate end of which is reduction of preventable sufferings in the midst of armed hostilities. This reduction is feasible through legitimizing military operations and showing human behaviors towards those captured during war. This branch of international law is practiced only at the time of international and non-international armed hostilities.Following the September 11 event, the U.S administration excluded those arrested on the charge of terrorism from the domain of humanitarian laws. This exclusion occurred under U.S claim that the members of Taliban and al-Qaeda are unlawful combatants. Stating that a new type of violence was in process at international and beyond national levels by terrorist groups, some American authorities and authors considered humanitarian law inapplicable in campaign against terrorism. They even made statements concerning the necessity of revision in the international documents of humanitarian law. It is noteworthy that the U.S state has not adopted the additional protocols to the Geneva Conventions yet.Surveying international documents, the present article seeks to prove that humanitarian law is also applicable to the conditions of campaign against terrorism and disprove U.S arguments in this regard.

Mistake is considered one of the defects of will in article 199 of the civil code. Articles 200 and 201 also refer to the general rules concerning two major types of mistake, i.e. that of the object of transaction and mistake as to the identity of the party to the contract respectively.The form of the wording of the abovementioned articles, in particular as to the effect of mistake on contracts, has brought about major differences among experts in law. The difference between the French legal system and Imamiyya jurisprudence, both of which being the primary sources of the codification of Iran’s civil code, has given rise to these differences. It seems that the ambiguity present in the foregoing articles also emanates from this very fact. On the other hand, mistake as to the party to the contract has various dimensions analysis of each or which involves an independent research. Explaining the problem in the French legal system and Imamiyya jurisprudence, the present article seeks to present a true interpretation of mistake and its effect on the party to the contract. Therefore, explaining the various types of mistake as to the party to the contract (the 1st issue), it deals with the main qualities of the party to the contract and their effects (the 2nd issue). Finally, the article presents the criteria for distinguishing the main qualities from secondary ones (the 4th issue)

The principle of the refer ability of contract is independent from that of the privity of contract. This principle indicates the reflection of the effects of contract in the society, i.e. the indirect of natural effects. The refer ability of contract has penetrated the French law through the French Court since the 19th century. In Imamiyya jurisprudence refer ability of contract has been taken into account by certain jurisprudents in some jurisprudence chapters under the headings such as the situational effects of contract.The refer ability of contract, embraces two domains, personal and that of the facts under the law.

Privacy of People is nowadays thereatened due to the emergence of modern information and communication technologies.On the one hand, internet facilitates access to peopl's personal data, their distortion and destruction. It also facilitates misusing peopel's Personal data and their publication for illegal Purposes. On the other hand, it makes it possible to track the information concerning one's identity and the contents of communicated messages. However, this new technology has not found its due significance in the rules governing protection of Privacy.All types of Personal information such as physical information, picture, voice, sexual relations, philosophical, religious, and political ideas, racial and ethnic origins, and even one's interests and tastes should be protected by the legis lator as soon as they are processed through electronic data.The present article deals with essential concepts concerning the privacy of personal data, the process of development of legislation in this regard, study of the regulations of Iranian Law and Eu Law on personal data and legal constraints facing protection of personal data.

Outre l’existence d’un contrat valide entre le transporteur et le passager, trois conditions caractérisent la responsabilité contractuelle: le préjudice, l’inexécution de contrat et le lien de causalité. La responsabilité du transporteur aérien à l’égard du passager s’ouvre en cas de mort, de lésion corporelle et de retard. Le transporteur aérien est responsable du préjudice survenu en cas de mort ou de lésion corporelle subi par un passager par cela seul que l’accident qui a causé la mort ou la lésion corporelle s’est produit à bord de l’aéronef ou au cours de toutes opérations d’embarquement ou débarquement. On étudie ici, tout d’abord, la notion des termes suivants: accident, à bord de l’aéronef, embarquement, débarquement, lésion corporelle. Ensuite, on précise la notion du retard dans le transport aérien du passager et sa divergence avec l’inexécution du contrat de transport aérien. Enfin, il convient d’examiner les autres conditions de la responsabilité du transporteur aérien à l’égard du passager.