پژوهشنامه حقوق اسلامی
پیاپی 27 (بهار و تابستان 1387)

Justice is the Primary objective of any religion or government including the Islamci Republic of Iran. However, the main point here is the way of knowing the extensions of justice. Is it possible for man to know all extensions of justice especially those referring to the Divine Law? The methodology of deduction of Islamic regulations is one that helps us to get close to the just rule in cases we do not have certain knowledge of legal rules. Thus practicing such a rule would be sufficient proof before the Almighty Allah. There are a lot of Quranic verses and traditions concerning justice, social justice, and equity. Should we refer to the custom and the common sense of reasonable men to recognize the extensions of the above – mentioned concepts as is the case for other religious concepts? What is the analysis of the great Muslim jurisprudents concerning this issue throughout the history of jurisprudence? A large number of Quranic verses and traditions seem to deal with the issue of implementation of the clear extensions of justice and social justice while some of them explain the foundations of justice, i-e. knowledge and truth. Therfore, we can refer to the crit eria of custom and common sense for recognition of the extensions of justice and social justice towards deduction of legal rules only in cases that the outcome of the above two conform to the fourth source of Shariah i.e. intellect. Thus it is necessary for them to recognize the extensions with certainty.

Blood money and punitive damages are two legal institutions with two different origins prescribed for distinct issues. However, the existence of some basic similarities necessitates the comparative study of these two institutions. These institutions deal to some extent with the goals of the civil liability system. They also have the functions of a punishment. Thus the legal nature of both institutions has been a matter of discussion in the legal systems embracing them. Explaining the legal nature of these two institutions, the present article seeks to study their basic similarities.

One of the differences between the two contractual and extracontractual liabilities is that of fault. This difference is of special significance and complexity in theoretical and practical aspects. Sometimes by fault is meant an injurious act. In fact, in some types of liability, fault is nothing more than commission of illegal injurious act. However, the difference is in two aspects: substantive and procedural. Fault in Iranian law is diiferent from French law, because some experts in law do not consider it valid in the jurisprudence and law of Iran. The present article seeks to study and compare "fault" in contractual and extracontractual liabilites according to the French law and Iranian jurisprudence and law in terms of concept and procedure.

In every science, certain technical terms are coined and employed for the purpose of facilitating conveyance of concepts of that science. However, in case this happens without considering the lexicographical capacity of the common literature of community, it would lead to a dichotomy between the technical literature and the common one. This would not have any achievements but ambiguity and confusion of meanings and concepts in the event of interpretation and applicability of the propositons of a certain discipline. One of the examples of this gross mistake is usgage of the term Dawla (state) in three different meanings of body politic, government, and executive power. This is a usage which has given rise to certain problems concerning the communication of technical concepts to the Persian language. Presuming the Phenomenon of confusion of concepts and inefficient homonymy, the present article seeks to propose a mechanism toward solving the problem through a descriptive and exploratory survey.

The document can be regarded as the most important and common evidence of partie's allegations in civil actions and non–criminal affairs. The document presented as evidence may, in some circumstances, conflict with other evidences available at the proceedings including testimony. In this case the court must, according to the case, prefer the document or the competing evidence from among the two conflicting evidences and judge on its basis.The ruling on the conflict between deed or authorized document and testimony had been specified in article 1309 of Civil Code. But Council of Guardians declared this article contrary to Islamic Jurisprudence and in fact nullified it, while the generally logical assurance arisen out of deed or authorized document is stronger than the assurance originating from testimony and consequently it seems preferable to consider deed or authorized document prevailing over testimony in the case of conflict between these evidences. Because occurrence of mistake and forgetfulness is potentially possible in testimony while there is no such possibility in deed or authorized document.

Although not quite distinct from the general theory of the interpretation of law, interpretation of constitution has a dynamic and prominent quality due to its being equal to the text of constitution and its correlation with socio-political issues. These features have made different political systems consider different authorities for its interpretation. The reason behind this fact is that the position and structure of the interpretation authority of constitution originates from the political thought and background of every government, while the latter strongly influences the interpretive appoaches of the authority. These interpretive authorities may be categorized into judicial, legal, and doctrinal classes. Decisions or views of the first two classes are binding while the judicial and legal advisory opinions along with doctines are not binding. Although the supreme court of the United States is considered among the judicial authorities, the structure and the way of choosing its members have caused political tendencies to influence its decisions strongly. In contrast, the Guardians Council of the Islamic Republic of Iran is a constitutional authority with jurisprudential and legal trends.

The issue of functions of parliament and the conditions as well as the sphere of legislation in the contemporary history of our country, has always been correlated with the general topic of religion and its sphere on the one hand, and with the issues relevant to public law and political science on the other. Regarding the deep influence of the Muslim clergymen in the theoretical and practical development of the society, Study of the issue from this perspective is of high singinficance. Among the wide range of the contemporary scholars, the socio-political performance and jurisprudential views of the Late Akhund Khurasani in the constitutional era hold a particular position. Study of the issues relevant to parliament and conditions of legislation in his view can lead to the development of legal as well as political concepts in the theoretical framework of the Islamic system. The Present article focuses on this issue.