دکتر محمد راسخ

Bioethics is an interdisciplinary approach that deals with ethical issues arising from the application of life sciences and technologies in human and non-human life. However, we often come across analyses and arguments of another nature, in the literature of this discipline. Although law and morality both are situated in the normative disciplines, they examine issues from different angles. Scholars of this field often, confusing “the moral” and “the legal”, use concepts such as moral rights. It could be shown that such kind of conceptual confusion leads to inconsistency in normative discussions on biosciences and technologies. A study of bio law and bioethics, while trying to delimit their boundaries, based on distinguishing features of each field, could prevent those conceptual confusions. In this research, we aim to examine differences between law and ethics, based on discussing four lines of “aim”, “scope”, “rule generation” and “sanction” and bringing in examples of bioethics problems. We then refer to a third kind of normative knowledge, which, has wrongfully entered the scope of bioethics. Ignoring the distinction between law and morality, especially in the legislation and adjudication processes, would amount to a breach of impartiality and inclination of law towards a particular moral outlook. Consequently, instead of bringing about a context for the coexistence of various ethical viewpoints, politics put pressure on those who believe in a different moral view. A system, in which certain ethical outlooks are accommodated while certain others are not, is undoubtedly far away from justice.

Modernity was formed and evolved on the specific context of political and intellectual developments of the late Middle Ages and the Renaissance and beyond, and all manifestations. It affected the individual and collective life of man and led to the emergence of modern law, of which the principles of fair trial are a product. Hence, the main question of this article is about the relationship between having the author elements of modernity and aspects of the legal system. For this purpose, it is necessary to first identify the objective and epistemological / value elements of the phenomenon of modernity as well as the four legal aspects, namely the "purpose" and "source" of law, the legal "method" and the "reference" of legislation. Iran and the United Kingdom and the relationship between these elements and their legal systems were studied using a comparative method and qualitative analysis.The findings of the study indicate the fact that the United Kingdom, due to the presence of most elements of new life (modernity), has a modern legal system and as a result; In the realm of principles and guarantees, the procedural rights of the accused employee are more developed, and the exercise of these rights is documented in human rights documents. In contrast, Iran lacks all the elements of modern law due to its maximum elements of modern life, and therefore, at present, it does not have the principles and guarantees of a complete and developed procedure in accordance with human rights documents.

Considering the functional evolutions of modern legal systems, in our times, some of the Islamic law dictates such as the one-fifth tax (khums) and the alms tax (zakāt), the issue of taxation, or discussions related to the legal equality of men and women have ignited debates, particularly in the field of the Epistemological fundamentals of law. The present research aims to provide a suggestion according to which, it might be possible to reconstruct the rational view onto Islamic legal with a mu‘tazilī approach and, thereby, to achieve more compatibility between Islamic Law and the legal requirements of Public Law in contemporary political communities. With this approach, the authors address the topics of “rationality” and “human will” as two concepts with fundamental importance in the theory of Qāḍī ‘Abd al-Jabbār al-Mu‘tazilī. It seems that, from this point of view, with a legal and positive interpretation of the elements of Qāḍī ‘Abd al-Jabbār’s theory of justice, it would be easier to bring Islamic legal dictates and the secular rules of the modern legal systems to coexistence.

The idea of social investment has transformed and revised approaches to the scope and nature of welfare state interventions, particularly in the field of social security. In the past, the tendency towards privatization and regulation within the framework of neoliberal approaches to the social security system has led the advanced welfare state to reduce social security interventions, protections and benefits. The idea of replacing social security with social investment does not seem to provide all citizens with sufficient protection in the face of poverty and affects access to the right to social security. Providing immediate, sufficient, and comprehensive support that provides universal access to a minimum of resources requires a return to the distributive logic of social security and in continuation the determination of the limits and role of state in this area. In this study, with the aim of achieving the desired model of state interventions in the field of social security by a descriptive-analytical method, looking at the shortcomings of the theory of social investment state and relying on the requirements of justice in two titles "job as an asset" and "difference in internal endowments" the basis for a return to the distributive logic of social security has been identified. Accordingly, present study has concluded the necessity of accompanying social investment with compensatory interventions of the traditional welfare state in the form of benefits of the social security system.Keywords: internal endowments, social investment state, social investment, job as asset, social security system

The public health is undoubtedly one of the instances of public interests the lack of which would impose immense harm on the very existence of the collective life. This becomes more serious in emergency situations. More importantly, if a system of prioritisation of scares resources is not devised for such conditions, numberless lives would be lost and all dimensions of the collective life will be collapsed. The basic question relates to foundations of designing a method of prioritisation and provision of medical and health services in the emergency situation and to a public health system corresponding to these foundations. Translation and transformation of those foundations and this system into legal rules and procedures form the hard core of the “public health law”. In this research, upon referring to presupposition of the current discussions, we shall put forward, respectively, the mentioned foundations and the system. No doubt, the legal system of public health is expected to strike an internal balance in this structure, and also make this consistent with other pillars of the human civic life.

The main focus of this research is on the nature and origin of rights. Jeremy Bentham totally rejects the notion of extra-legal rights. For him, it is only legal rights that are valid and imply a benefit for its holders. Sayyid Abu al-Qasim al-Khoei's believed that rights’ validity derives from the religious lawmaker. He authenticates rights for reasons which seem to be individuals’ interests. In this paper, it will be shown that Bentham and Khoei, at least on the formation basis of rights, have similar analysis of the concept of rights: they both consider rights as valid due to the lawmaker’s authentication to the benefits of individuals, legally sanctioned in the form of duties. Accordingly, it shall be emphasized that the mentioned writers think along similar lines on the relationship between rights and law. Nevertheless, differences and also consequences of these two analytical theories of rights are too serious to be overshadowed by their mentioned similarity.

The discourse of global justice at transnational levels has given rise to important challenges . The impact of this theory on nationally discussed concepts forms an important part of such theoretical challenges. Law, which has been so far understood as a state-made concept, is now in need of a new theoretical pattern due to its relationship with theory of global justice. Accordingly, the main question of this research is whether global justice theory can change our conception of law at both national and global levels. To answer this question, upon a brief explanation of the issue of global justice and providing a short picture of law, we will examine the impact of integrated and non-integrated approaches to global justice on this brief picture. While non-integrated perspectives do not seem to be sufficient, integrated perspectives seem unrealizable in the current power structure of the world. Accordingly, given diverse human identities and relationships, relational and non-relational grounds of justice, and insufficiency of international morality, we may only come up with a moderate outlook on global justice; under which, law is bound to be defined somewhere between two poles of certainty and responsiveness. The limited but inevitable competence of states in the contemporary world and the balanced spectrum of integrated approach to justice are, respectively, embodiments of the two mentioned poles.

Rights are among the most important fundamental normative claims that have played a pivotal role in the development of individual and social lives of human beings over the last centuries. This concept and institution, the same as any other normative concept and institution, is in need of justification. However, justification of rights, due to their particular nature, seems to be too hard. Are rights established on the basis of morality? In order to answer this question, it is first imperative to inquire into the nature of the moral and also that of rights. Inquiring into the nature of them, in particular that of morality, shall inevitably lead the discussion towards the common and distinguishing features of them from similar fields. This paper is, however, focused on the differentiating dimensions of the moral and rights. Having introduced distinguishing features of “the moral” and “rights”, we shall investigate and conclude on the logical relationship between the mentioned two in the context of justification or theoretical defence of rights. Such investigation and conclusion will pave the way for a more precise understanding and application of the aforesaid concepts.

Because to the changed management approaches of the modern states and outsourcing the non-sovereign activities to the private sector, the role of the state in economy switched from direct interference in market through taking over various functions including employment, ownership, producing and distribution of the goods to regulating the relationship and behaviour of the private interested entities. In this regard,commercial port, as one of the important national and international economic centres, concurs with the modern management evolution.In this descriptive-analytical article, we are to firstly discuss and find out characteristics of the joint interference of state and private sector in regulating the port activities; the concept which is going to find its role and significant place in Iranian commercial ports, and secondly show that, to what extent, the current  structure of public and private joint interference have had the positive effect on this subject.In response, the result shows that, there are adequate legislations that have been adopted in recent years, authorizing the joint state and private interference in providing the port and maritime services. However, due to the lack of precise drawing line in the field of regulating activities in ports and therefore, continuous unexpected involvement of the government in this field, no expected achievement reached. As a result, there is a need to witness changes in this field by using the joint interference pattern, regulating port and maritime activities.

Legal pluralism, in broad terms, refers to the coexistence of two or more legal systems under the one and same state. In narrower terms, legal pluralism implies plural state-made laws and the reflection of social and cultural plurality in a legal system of a state. The concept, in its broad sense, embodies this outlook that law is not limited to the institution of the state, and that the state is only one of the authorities that make legal rules in the society. Accordingly, the concept of legal pluralism gives rise to diverse and important discussions on the scope and meaning of the concept of law. In addition to the conceptual controversies with which legal pluralism is encountered, the significant methodological criticism is that legal pluralist theories lack a clear and precise criterion for distinguishing law from other social phenomena. Considering all normative orders as legal will lead to certain conceptual confusions, which undermines main claims of legal pluralism and make them unjustified.

The inherent complexities of financial market contracts, including those made within the money and capital markets, and the effect of the financial market on the totality of the economic system of a country by providing financial resources motivate governments to use various instruments to secure finances and uphold public interests in these markets. The necessity to ensure the private interests of investors while minimizing and managing risks and the dual nature of regulation, which restricts market agents on one hand and constrains governmental intervention on the other, creates a vast continuum of regulatory instruments which are used in more or less all countries around the world in some manner. Regulation has transitioned through market crashes, government failures and the shortcomings of private law in attaining public and private interests, and has risen to the status of a government theory; it provides instruments and devices through which governments may select and deploy regulatory policies. In the present paper, Iran and the United Kingdom have been selected with respect to their differing points of departure on the regulation of financial markets and comparisons have been made regarding the strategies, methods, sanctions, resources and bodies which systematically facilitate one or many governmental policies which make up the regulatory mechanisms governing the financial markets in both countries.

More than a century ago, a great revolution occurred in Iran, the fundamental aim of which was to establish a rule of law system. Accordingly, the concept of law has been one of the most essential though challenging concepts of the constitutionalist movement in the country. This issue is so significant that we may seek the root of the Iranian constitutional crisis in the failure of providing a clear and workable concept of law. A serious impediment in this regard was the old concept and system of Shar`, which prima facie left no room for law. Shari`atist thinkers took two approaches to the relationship between law and Shar`: compatibility and incompatibility. Not only did the compatibility approach believe in the possibility of combination and sometimes identity of Shar`i and legal rules, it finally gave the upper hand to law and its requirements. One of the fundamental disputes related to the legislating authority. Shari`atists ultimately embraced legislation by the human being. Nevertheless, this brought about controversies and debates on the last prophet-hoodness of Muhammad (pbuh), religious innovation, and rational preference. This paper shall analyse the concept of law from the perspective of Shari`atist thinkers living during the Iranian Constitutional Revolution era, on the basis of their works and the related documents. This analysis will lay the historical and theoretical ground for the similar and still unresolved problem under the legal system established after the Islamic Revolution in the Country.

Science considers using technologies for treatment of infertility as the important cause of multifetal pregnancies. Fetal reduction is a clinical procedure developed for reducing the number of fetuses in multifetal pregnancies in order to avoid their common complications. Three aims may be offered for fetal reduction: (1) pregnancy preservation, and prevention of and decreasing risks of multifetal pregnancy to the mother and the remaining fetuses (high-end multifetal reduction); (2) eliminating fetuses bearing certain kind of illnesses (selective reduction); and (3) just preventing multiple birth where no considerable risk threatens the mother or the fetuses (elective reduction). Moral evaluation on fetal reduction techniques varies depending on which of the mentioned aims is followed. However, in many cases this is “medical necessity” that morally justifies the reduction. Nevertheless, given the difficulty of reaching a decision on this issue, risks involved in fetal reduction procedure, and its psychological implications for the mother and the father, it is seriously recommended to avoid such an action by methods that prevent multifetal pregnancy.

Development of new methods of treatments for infertility has given rise to a serious question as to the access to such methods. Determination of the ones who can access the mentioned treatments and the limits of this access, depends to the definition of infertility. The Law of the method for Embryo Donation to Infertile Couples according to Iranian legislature considers the infertile couple who “cannot reproduce in accordance with credible medical certificate” as eligible to receive the donated embryo. However, applicants for modern infertility treatment methods have gone beyond infertile couples and include those couples who wish, based on credible medical evidence, to avoid having unhealthy children, especially by using donation methods or surrogacy. Accordingly, having supported a preventive approach to ARTs, a new concept of infertility will appear on the horizon. Expanding this concept to couples who are considered fertile from a common medical perspective but give birth to seriously unhealthy children shall inevitably lead us to revise the common legal concept of infertility. Therefore, by resorting to ethical reasoning, laws, and regulations of various legal systems and Fiqhi opinions we can develop another interpretation of Embryo Donation Law and argue for the access of the “perceived as infertile” couples to the infertility treatment with the help of third parties.

Regulation is a modern concept which has emerged out of and evolved in the context of economic development in general and the relationship between market and government in particular. It signifies a different meaning with the past. Even nowadays we are faced with various meanings of regulation within the economic legal systems; meanings that have moved away from its early definition, and hence, it is necessary to make it clear what we mean by the term in our academic analyses. However, regulation is about managing the relationship between government and economy (especially the market); an issue with which legal and economic systems have grappled since the early days of industrial economy.
Market has always swayed between two theories of government interventionism and non-interventionism. It could be said that the idea of market dominated over the orthodox economy up to the 1929 crisis. With the outbreak of this crisis, the Keynesian theory found the upper hand in the economic systems, which defended government intervention in the monetary system and labour market. After three golden decades since the end of the World War II and along with the occurrence of the 1970s crisis, the idea of the market efficiency and necessity of reduction of the government intervention therein gained currency. In this situation, where the Keynesian theory had started to lose its prevalence, governments lost important monetary and fiscal instruments. Post-1970s era has increasingly necessitated determination of the state-market relationship.
Various economic schools and theories have taken shape in this era. Regulation is indeed one of the concepts with which theoreticians have grappled with. Some of the scholars in the field of regulation consider government as a preliminary example of intervention in the market, while some other take it as one among many intervening institutions. All of them, however, agree that the nation state and international regime are among significant and complementary elements to a functional economy and help the economic growth. Having taken into consideration the history of this era and the related theories, it may be concluded that nowadays there is no doubt about the necessity of government intervention in the market and economy. All in all, there is a consensus on this point that a lack of mechanism of managing the state-market relationship would harm all the actors involved in the field, a fact that finally damages the national interest, and causes serious economic and social losses.
In other words, the controversy now revolves around the boundaries of such an intervention and regulation of market by governments. Given the developments occurred over the 19th and 20th centuries, it seems that the state-market relationship is not of an absolute domination of government over market or a random and haphazard regulation of the institute.
The aim of regulation of market and economy – which requires government intervention in diverse ways, particularly by passing and enforcing laws and bylaws – is to enhance the efficiency and functionality of economy in various industries and jobs, on the one hand, and monitoring them with the purpose of helping correction their failures, such as environmental harms, risks exposed to the society and the labour, exploitative pricing, unfair competition, on the other hand. In this regard, in order for regulation to be effective and meet its aims, it is not only necessary to designate various meanings of the term at different levels, so that appropriate instruments may be selected for each level, it is also crucial to determine and know very well the scope and target of regulation in a precise way. No doubt, legal regulation, in both particular and sub-particular levels, can be effective by relevant sanctions.
At any rate, regulation implies various meanings and is of diverse levels. That is, regulation finds different meanings in different fields, and hence, requires different instruments. Therefore, in the first step, in this realm, we need to deal with the concept of regulation. On the basis of the above points, this essay, by briefly dealing with the history and necessity of regulation, aims to explain three meanings and level of the concept of regulation and existing approaches to the issue. To explain, from among various kinds of regulation, such as the social and cultural one, we only deal with the regulation of market, industries and jobs.
At the firs level, the general one, regulation means any enforceable social control.
At the second level, the particular one, regulation implies government intervention in the market system. At the third level, the sub-particular one, regulation signifies intervention in economy and market by legislation. It is clear that regulation in the second and third meanings relates to the relationship between government and economy/market. It is worth mentioning that, under the Iranian legal system, “Law of Implementation of General Policies of Article 44 of the Constitution” include the second meaning of regulation as it shows legal regulating of the economy by legislation. In contrast, directives or bylaws issued by the Competition Council and rules passed by the Organization of Radio Communication Regulation are instances of the third meaning of regulation.

Reproduction is one of the basic abilities of human beings. This is often realized in a natural way، though in certain cases new methods and technologies provide infertile couples with the opportunity to realize their wish to have children. In recent years، the term “right to reproduction” has emerged، and sometimes emphasis is placed on the obligation of governments to satisfy this right. However، it seems that the ambiguity of the aforementioned term may create serious problems in our understanding of the subject matter and، in consequence، affect the manner in which it is handled in the society. In this paper، in addition to discussing the concept of rights، it is argued that the right to reproduction may be embodied both by a claim right and a liberty right، even though the latter is only a justifiable and acceptable way of representing the right to reproduction. Therefore، this right entails the freedom to bear children and to pursue provision of the requirements، including utilizing ART. As in the case of other human rights، this should be in balance and proportion with public interests، in such a way that in particular circumstances، such as problematic population situations، it may be protected or prevented by the government.

Recent developments of concept and instances of rights have given rise to many chanllenges among legal theorists, each of them has attempted to tackle the challenges in his/her particular way. It is claimed that in order for us to have a better life it is no longer possible to merely rely on the first and second generations of rights. It is, necessary to (generate or establish) another generation of rights that is commensurate with requirments of the collective life. This necessity has been the basis on which the idea of third generation rights has been established. Now, in order to deal with claims under third generation rights – which are also called group, collective or peoples – we are, first, required to put forth a clear undeatanding of the concept of third generation rights. It is, then, essential to deal with theoretical foundations of these rights. In this regard, we endeavour to answer certain fundamental questions on these rights: what does third generation rights mean? What are their instances? Are we allowed to use the title of ‘rights’ for claims made under collective life per se? What are the arguments of proponents of this kind of rights? Are the arguments tenable? If not, what is the altertanative analysis?

Application of modern medical and bio sciences and also that of modern biotechnologies to human life, during the last decades, have left impact on and indeed changed traditional religious and moral attitudes. Use of such sciences and technologies has given rise to unprecedented moral and religious discussions which could not be justified and fruitful without taking into consideration of foundations of moral judgments. This is more significant in Islamic societies in which religion plays a considerable role in formation of moral beliefs and legal rules. The method of this research is philosophical. The material is collected from published works such as books, articles and research reports in libraries or on the web. We have endeavoured to analyze the concepts of religion and morality and deal with the idea of the paper on the basis of a comparison between the Western and Islamic philosophies. Having taken into account recent biotechnological developments and normative problems arising from them, this paper attempts to study the relationship between religious and moral approaches and these problems, and evaluate various types of religious and moral theorizing on the bioethical problems. Moreover, upon discussing and evaluating (religious) theological and textual approaches to bioethics, it is ventured to put forth a justifiable religious approach to bioethical problems. Current religious moral injunctions on bioethical issues can be approached and evaluated in parallel with the secular ones. However, rational justification of the religious injunctions occurs at the level of moral theory and meta-ethics (moral philosophy). Jurisprudential rulings on bioethical issues may be issued on the basis of morality and justice. In this case, they would be both ethical and just and also backed by religious teachings.

Posthumous reproduction has recently emerged in line with the development of assisted reproduction technology (ART) methods. In this method, individuals take steps to freeze their gametes or embryos for posthumous insemination or reproduction. However, diverse moral and legal questions ensue, and it is important to preserve human dignity and protect the child's rights and interests. In this regard, from an ethical point of view, we discuss supporting and opposing arguments on autonomy, consent, and the child’s interests. We reason that any measure to be taken on the gamete after death has to be based on the autonomy of the deceased and his/her explicit or implicit consent as to the posthumous use of the gamete. On the legal aspects, we discuss proprietary rights over gametes, filiation of the child, and his/her inheritance. In our opinion, non-financial authority over one’s organs, tissues and cells, as well as parenthood and conditional inheritance are plausible answers in these regards. Evidently, the legal system cannot address these issues without taking into account the ART developments and contemporary expediencies. This in turn depends on taking a modern stance relying on justifiable moral and legal principles. Moreover, it will help identify shortcomings of the legal system in this regard.

Are governments responsible for the good lives of their citizens in the same way as they are under a duty to provide security, welfare and health for them? According to neutrality approach, the former categories (security, welfare and health) should be distinguished from the latter one (the good life). Governments have to remain neutral as regards the good lives of their citizens, which are also discussed under other titles such as conceptions of the good or those of good life. Neutrality is based on the distinction between the right and the good. There are various readings of this approach. In this paper we shall deal with the neutralist approach.

In this paper, professor Loughlin introduces and dwells on two competing theories of constitutionalism: the "normative" and the "functionalist". His analysis continues with a critical evaluation of limits of the liberal (normative) perspective in this regard. The limits are couched in the form of four tensions: tension between liberalism and democracy; tension between norm and exception; tension between identity and difference; and tension between community and cosmopolis.These tensions, Loughlin argues, could not be analysed properly unless the major and real tension between the two aforesaid theories of constitutionalism are taken into serious consideration. This in turn would make the constitutional discourse a dialectical and fruitful one.