جستجوی مقالات مرتبط با کلیدواژه « نظم عمومی » در نشریات گروه « فقه و حقوق »

Public order and good morals are two general concepts that have important effects in various legal fields, including contracts, etc. The purpose of this research is to examine and explain the concepts, types, examples, functions and effects of public order and good economic ethics in Iran's legal system and Imami jurisprudence.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

Ethical Considerations: 

In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

The findings of the present research show that the general economic order and good economic ethics are considered the source of principles and rules in Iran's legal system and Imami jurisprudence. In fact, the function of these two concepts is not merely a negative function in the direction of "negation"; Rather, these two concepts can also have a positive function

The general economic order of the source, due to its textuality, is compatible with the law - the same government tool - but it is different from it. Because on the one hand, the provisions of all legal articles are not considered part of the general economic order. The good economic ethics of the source is not textual, and this point makes its positive function more effective; A source that is beyond the text, the place of emergence and discovery of legal rules and principles, compensates for the textual gap and results in the flexibility of the legal system and its exit from rigidity.

In the past two decades, Europe has had numerous conflicts resulting from the clash between freedom of expression and religious insults. The European legal system considers freedom of expression as one of the fundamentals of a democratic society and a basic condition for individual progress and self-actualization. The central approach of the European Court of Human Rights is that freedom of expression includes not only non-insulting statements but also offensive, shocking, or provocative statements. However, this court seeks to resolve the conflict between freedom of expression and blasphemy and create a balance among different interests. On the one hand, under “protecting others’ rights,” the court spoke of banning severely insulting statements that cause significant distress to religious followers. On the other hand, from a societal perspective, the court considered the risk of a public outcry from religious societies due to religious insults. Recently, however, the court gave significant weight to the political, scientific, and artistic aspects of expression when balancing freedom of expression against religious sensitivities, thereby expanding freedom of expression’s scope. Nonetheless, the threat to public order remains a key factor in the court's decisions to restrict statements containing religious insults. This study used a qualitative method based on content analysis with a descriptive-analytical approach and employing library and internet sources.

Introduction :

The inherent complexity in interpreting legal texts is often exacerbated by conflicts that arise between absolute and conditional affirmative rulings. An absolute ruling, devoid of qualifications or constraints, carries a distinct interpretation compared to a conditional ruling that is subject to specific prerequisites or conditions. This dichotomy becomes especially pronounced in Islamic jurisprudence, where absolute and conditional terms possess particular meanings informed by Moqaddamat al-Hikmah (conditions altering the absolute meaning to a general one). The linguistic and jurisprudential understanding of absolute and conditional rulings necessitate careful interpretation to avoid contradictions and ambiguities in legal practice. Within principles of Islamic jurisprudence [Usul al-Fiqh], scholars have rigorously debated the scope of Moqaddamat al-Hikmah, particularly when both absolute and conditional rulings appear to affirm each other in legal texts. This issue presents a significant challenge in imperative rulings, where adherence to the conditional can be viewed as recommended (but not obligatory) [mustahabb], thereby reconciling it with the absolute. In contrast, postural rulings, which pertain to the positive affirmation of both conditions, are less straightforward and reveal the need for a nuanced framework.The application of these jurisprudential principles to statutory laws remains underexplored. The legislative language used in statutory laws often reflects both absolute and conditional directives, posing a challenge for interpretation, especially when positive affirmation is required. Thus, investigating the applicability of principles derived from Islamic jurisprudence to statutory laws becomes essential in addressing these conflicts. 

 Research Question :

The primary research question guiding this inquiry is whether the conflict resolution mechanisms developed in principles of Islamic jurisprudence for reconciling absolute and conditional affirmative rulings can be applied to statutory laws. Specifically, this research seeks to explore the challenges of extending these principles from the realm of Islamic jurisprudence to statutory law interpretation, particularly in cases where both absolute and conditional rulings are positively affirmed. 

Research Hypothesis  :

The hypothesis posits that the doctrinal principles established in principles of Islamic jurisprudence for resolving conflicts between absolute and conditional affirmative rulings can be effectively extended to statutory laws. By adapting these principles, it is anticipated that statutory law interpretation can be unified and standardized in a way that aligns with Islamic judicial practices, providing a coherent framework for legal practitioners. This unification is hypothesized to outweigh the challenges of reconciling these principles with the unique structure of statutory laws. 

Methodology & Framework, if Applicable :

This research adopts a doctrinal approach, focusing on a critical examination of both classical and contemporary sources within Islamic jurisprudence and statutory law. The doctrinal method involves analyzing legal texts, judicial interpretations, and scholarly commentary to understand the principles governing absolute and conditional rulings. Key elements of the methodology include:     Literature Review: An extensive review of classical and modern principles of Islamic jurisprudence texts to identify the principles and definitions of absolute and conditional rulings. Special attention is given to works addressing Moqaddamat al-Hikmah and its interpretation across different Islamic jurisprudential schools.Comparative Analysis: A comparison of principles found in Islamic jurisprudence with those in statutory law to identify similarities and differences. This analysis involves reviewing existing statutory laws to detect instances of conflict between absolute and conditional affirmative rulings. Synthesis:Synthesis of findings from the literature review and case studies to develop a framework for extending Islamic jurisprudential principles to statutory law. This framework aims to reconcile affirmative absolute and conditional rulings within a unified judicial practice.  By combining these methodological elements, this research strives to produce a comprehensive analysis of the applicability of Islamic jurisprudential principles to statutory law, offering practical recommendations for legal practitioners. 

Results & Discussion :

The research findings reveal significant nuances in resolving conflicts between absolute and conditional affirmative rulings within Islamic jurisprudence and statutory law. These distinctions primarily emerge in imperative and postural rulings, and an analysis of the results helps in understanding the mechanisms that principles of Islamic jurisprudence offer. Imperative Rulings: In imperative rulings, Islamic jurists have differing opinions regarding the reconciliation of absolute and conditional rulings. Some jurists argue that conditional rulings should be interpreted as Mustahabb (recommended) rather than obligatory, allowing them to coexist harmoniously with absolute rulings. This approach effectively retains the integrity of the absolute ruling while offering additional guidance through the conditional provision. Other scholars advocate directly reconciling absolute and conditional rulings by allowing the conditions to modify the absolute nature, ensuring consistency in legal interpretation. In statutory law, however, the approach requires further refinement. The interpretation of conditional rulings as merely recommended is not feasible due to the mandatory nature of statutory regulations. Thus, in imperative statutory rulings, the primary solution lies in finding a way to reconcile absolute and conditional rulings. The results suggest that adopting a hierarchical interpretation, where the conditional complements the absolute without altering its foundational framework, provides a practical approach.Postural Rulings: Most scholars agree on reconciling the absolute with the conditional in postural rulings, provided that the unity and consistency of obligation and ruling are maintained. In postural statutory rulings, the essential requirement for determining and reconciling the conflict between absolute and conditional provisions is establishing the unity of cause and criterion. However, establishing unity is more complex in postural contexts due to the layered nature of statutory regulations.
 In both imperative and postural statutory laws, unity of cause and criterion can sometimes be inferred directly from the legislative texts themselves. In other cases, it can be deduced from external evidence pointing to a legislative intent to connect the conditional to the absolute. A systematic approach to inferring unity of criteria and cause is required to effectively harmonize conflicting statutory provisions.Broader Context and Application: The broader analysis reveals the importance of systematizing the unity of cause and criterion when reconciling absolute and conditional rulings. By adhering to principles that align absolute and conditional provisions, judicial practices can remain consistent and coherent. However, solutions like repealing statutory provisions instead of reconciling them or maintaining adherence to both absolute and conditional provisions without verifying unity create ambiguity and inconsistencies in legal interpretation. Moreover, the study uncovers challenges in reconciling principles from Islamic jurisprudence with statutory legal frameworks due to differences in language, intent, and legal culture. The discussion underscores the need for a hybrid methodology that respects the foundations of Islamic jurisprudence while acknowledging the structural requirements of statutory law. 

Conclusion :

The reconciliation of absolute and conditional affirmative rulings in Islamic jurisprudence and statutory laws requires a nuanced understanding of both legal frameworks. In Islamic jurisprudence, jurists have articulated different approaches depending on whether the ruling is imperative or postural. In imperative rulings, opinions vary between interpreting the conditional as recommended or reconciling the absolute directly with the conditional. In postural rulings, consensus exists among scholars regarding reconciliation, given that the unity of cause and criterion is established.In statutory laws, the approach to resolving conflicts between absolute and conditional rulings differs fundamentally. Conditional rulings cannot be interpreted as merely recommended due to the obligatory nature of statutory regulations. Thus, the only viable solution in imperative statutory rulings is to reconcile the absolute with the conditional, finding a harmonious interpretation that does not detract from the clarity or intent of either provision.For postural and imperative statutory laws, establishing unity of cause and criterion is essential yet challenging. Scholars infer unity from textual and external evidence, while statutory interpretations rely on legislative intent and the broader context of the law. Adhering to these principles ensures consistent application and interpretation. A systematic framework that reconciles absolute and conditional rulings can better coordinate statutory provisions, avoiding repeal or strict adherence without unity verification. Ultimately, the study demonstrates the feasibility of applying principles from Islamic jurisprudence to statutory law, emphasizing the importance of a unified judicial practice. However, this must be balanced with the challenges inherent in adapting traditional jurisprudential principles to contemporary statutory frameworks. The proposed framework seeks to achieve this balance, offering legal practitioners a coherent methodology for resolving conflicts between absolute and conditional affirmative rulings.

Nowadays, individuals can gain fame through the media based on their abilities, luck or due to their attribution to other people. The formation of fame for individuals has two inevitable effects and risks: On the one hand, people in society are interested in knowing the details of a famous person's life, and therefore the famous person is exposed to the risk of violation to privacy right. On the other hand, because of prevalence of different types of the media, modern fame has gained commercial value, so that the suppliers use the identity characteristics of a famous person to promote their goods and services to increase their supply. To deal with these two dangers, the legal system uses two solutions: first, by using the general and pre-existing right to privacy, which is rooted in personality rights and human rights, it tries to prevent the violation of the privacy of these people. Second, by inventing a new right as the right of publicity, which is both rooted in property rights and personality rights, it organizes the commercial use of the identity characteristics of celebrities. Financial effects of this right (assignability, waivibility, descendibility, etc) must be adjusted in interaction with personality rights and public order.

Clothes designing is highly considered as one of the most crucial components of the clotheproduction, marketing and sales process which might be relevant to the shape or its patterns. If these designs meet the conditions stipulated in the laws, they will enjoy literary and artistic property rights. While in American law, the conditions of protecting legally refer to originality and fixation in a tangible medium. Simultaneously, in America, granting copyright to clothes designs, even assuming that the conditions of protection being fulfilled, encounters the important obstacle as its applicability. In Iran 's law, according to the Law on the Protection of Authors' and Composers' Artists' Rights, clothes design might be protected if they are original and expressed. Referring the Law on Regulating Fashion and Clothes, taking into account the necessity of adhering to the original values of the society and maintaining veil and Public Chastity, has foreseen the condition of adapting Iranian-Islamic symbols for the copyrightability of clothes designs. The results of this article, has been vividly depicted with a descriptive-analytical method, the Iranian legislator has preferred maintaining public order and good morals over protecting the rights of creators of clothes designs, considered a worthy action.

The relationship between public law and criminalization is one of the important issues that has not been given much attention and investigation. The most important issue in this regard is public interests on the one hand and individual freedoms on the other hand, as a result of which the element of expediency and public order prevails, these freedoms may be limited. This has made it necessary to examine the impact of public law on criminalization with an emphasis on public welfare and order. The current article is descriptive and analytical and has investigated the mentioned subject by using the library method. The results indicate that from a jurisprudential point of view, the components of public law such as expediency and public order, public security, human dignity and non-harm to the society are important bases of criminalization. From the point of view of the subject law, non-harm and necessity and social benefit, along with public order and security, are the most important bases of criminalization. What is important is that there should be a balance between public rights and individual freedoms and the scope of public order and expediency should not be defined so widely that individual rights and freedoms are limited and ignored. Although the legislator does not have the ability to deal with decision-making institutions regarding the rights, it is correct to reduce this influence as much as possible in the field of criminal law and to use criminalization only in the case of threats to individual or community rights. This should also be done with clear and explicit rules.

Peaceful settlement of disputes is one of the great achievements of human civilization and we are the heirs of this precious and valuable heritage. The New York Convention with the main and fundamental issue of recognition and enforcement of agreements and foreign arbitration awards is the result of the aforementioned legacy, which has remained popular for 60 years and its fundamental mission is to standardize the laws and procedures of recognition and Sees the implementation of arbitration decisions and agreements. According to paragraphs a and b of paragraph 2 of article 5 of this convention, respectively, arbitrability and public order are among the obstacles to the recognition and implementation of issued decisions, which the courts can refer to. These predicted criteria, whose mission is to support and protect the basic principles and standards of the rights and values of each country, and which are considered to be among the judicial supervision of the country that recognizes and enforces the decision, are closely related to each other, and it is assumed that each Multiple arbitrability and the impossibility of referring some specific cases to arbitration have been formed based on the general order of the countries, although they have common roots, they are distinct from each other and they are different from each other. The effort of this article will be to focus on explaining this importance and specifying the limits and boundaries of these criteria and obstacles to identifying and implementing foreign arbitration awards.

The purpose of this article is to examine the place of order and public interest in criminalization in Iranian jurisprudence and criminal law and European law. The present article is descriptive and analytical and has investigated the mentioned subject by using the library method. The results indicate that from the point of view of jurisprudence, expediency and public order, public security is one of the important foundations of criminalization. From the point of view of the subject law, social necessity and benefit, along with public order and security, is one of the most important bases of criminalization. In European law, the principle of harm, the prohibition of disturbing others, the principle of protecting the rights of the general public is the main basis of criminalization, which itself is the basis of order and public interest. The important and subtle difference between Iranian jurisprudence and criminal law and European law is that in Iranian jurisprudence and criminal law, the emphasis is on public order and expediency, but in the European Union, the emphasis is on public benefit. Public interest is one of the words that is ambiguous to a great extent and is very open to interpretation, but public interest generally includes benefit and public good. The vagueness and breadth of the concept of public interest sometimes causes maximum criminalization.

In the French legal system, in order to control the fairness of the terms and judicial supervision of consumer contracts, two general categories of criteria have been identified and introduced to control them. The first one is  the Commercial Code, which governs all "commercial contracts" and forms part of a broader law on unfair competition law; it has historically been rooted in countering abuses’ by large retailers of their suppliers of goods. Second, in civil law, which seems to be influenced by the criteria for controlling the terms of consumer contracts in European law and governs the terms of contrats d’adhésion. That is, cases in which the "will" of one of the parties to the contract is not taken into account. In Iranian law, there is no objective criterion for recognizing the unfairness of conditions, and as a result, it has become difficult to control them. The law on e-commerce and the law on the implementation of the general policies of principle 44 of the Constitution are not helpful in this regard either, and the need to pay attention to this important issue is fully felt.

Doping is the most unprofessional and unethical behavior in professional sport. In addition to the ethical and technical aspects, this phenomenon also has important legal aspects. In recent years, following the increase in cases of doping, the tendency to criminalize it has clearly formed among some criminal policymakers, and some countries have explicitly criminalized doping and punishing it, but despite some other countries have not taken action in this regard. A clear example of the first countries is England, Germany and France, and an obvious example of the second category countries is Iran. The claim of this article is that by using the experience of criminal law systems in England, Germany and France, it is possible to take steps towards the criminalization of doping in Iran's criminal law and in this way, between the approach of Iran's criminal law system and the view of the system. The mentioned legal issues created more alignment. The main hypothesis of the current research is that the criminalization of doping in Iran's criminal law has a significant effect in reducing it. In order to further investigate these categories, in this research, while studying the concept of doping and the basics of its criminalization in the criminal law of England, Germany and France, the challenges facing the process of its criminalization in the criminal law of Iran have been examined. The current type of research is fundamental, its approach is descriptive-analytical, its method is library study, and the tool for collecting information is survey.

The freedom and dominion of will [supremacy of will], in addition to the law, are also restricted by public order and good deed (Arabic: الخلق الحسن, good behavior) in our Law [the Iranian Legal System]. Contracts contrary to public order are null and void. In this case, the condition is the same as a contract, and the rule of non-enforceability of contracts against public order and morals can also be extended to terms against public order and morals. Condition in this case is the same as the contract, and the ruling of inability to enforce contracts contrary to public order and good deed can also be extended and generalized to the conditions contrary to public order and good order. One of the conditions that couples under the influence of the current socioeconomic status are willing to include it in the contract of marriage in order to turn the other party’s adherence to this condition into a requirement having sanctity is the condition of not getting pregnant (failure of offspring), which is one of the serious challenges about it, is the issue of contradiction or non-contradiction with public order and good deed. We tried to answer this question by descriptive-analytical method in this study: What is the status of the condition of not getting pregnant in marriage in terms of validity or invalidity (annulment) due to opposition to public order and good deed? Finally, we found that considering the relativity of the concepts of public order and good morals, the condition of not getting pregnant in terms of validity or invalidity also becomes a variable and relative matter, and its contradiction or non-contradiction with public order and good deed completely depends on the status of each time period and the situation of each region. However, it can be said that this condition under normal circumstances is not against public order and good morals. In the legal texts of the United Kingdom and the United States, childbearing is not considered as one of the positive rights of couples towards each other, and its failure is not against the public order of these two countries.

General Principles of Law recognized in civilized nations, as one of the main sources of international law, has played an important and effective role in international arbitration tribunals compared to other parts of international law. So far, no article has been done that independently examines the function of this source of international law.

This research was done using descriptive analytical method.

Applicable law, Protection of legal order, the basis for law making, interpreting the rules of international law, and a rule in international law are the functions of this main source of international law.

Sometimes a private law relationship is related to two or more countries due to the involvement of one or more foreign factors. In such cases, the judge of the court headquarters must determine which of these countries' laws apply to the legal relationship by referring to the conflict of law rules. will rule In fact, the purpose of the competent judge to refer to the conflict resolution rules of the country of the seat of the court is to find the competent law. When, according to the conflict resolution rules of Iran's laws, a foreign law is recognized as particularly competent in a case, the implementation of that competent law in Iran's closed countries may face two basic obstacles. These basic obstacles are public order, fraud against the law. According to the fact that in Iranian law, public order is considered as part of imperative laws, therefore, its relationship with public interests is such that the principle of sovereignty of the will is worthless against it, and Article 975 of the Iranian Civil Code is the basis of the judge's action regarding the implementation of foreign law. is. In some cases, a person frees himself from the constraints of the law by using the correct legal measures. In fact, the purpose of a person to prepare arrangements that allow the implementation of foreign law on him is to escape from the law of his country

Public proceedings are one of the principles of fair proceedings, the limitations and exceptions of which are of great importance and sensitivity. The nature of these limitations and exceptions are important issues that have received less attention in the shadow of the principle of public proceedings. The purpose of this article is to examine the exceptions of public proceedings in criminal jurisprudence, Iranian criminal law, human rights documents and international criminal law. This article is descriptive and analytical, and the library method is used to investigate the mentioned topic. The findings indicate that in jurisprudence, the acceptance of the principle of public proceedings can be inferred, but there is no mention of its exceptions. In Iranian criminal law, at the discretion of the court and in cases such as children's court, public decency, public order and security, religious or ethnic sentiments, and private lawsuits, if the parties to the lawsuit request, the proceedings are closed. In human rights documents, ethics and public order and national security of governments are exceptions to public proceedings. In the statutes of international criminal courts, issues such as public order or morality and security, protection of witnesses and victims, compliance with the expediency of justice, and protection of documents and information are exceptions to public proceedings. Although in international documents, these exceptions are stated in a general way, but the general and non-transparent statement of these exceptions in the domestic laws of countries, including Iran, cannot be defended.

Commercial companies as legal entities consist of various departments. As in some cases the interests of members or directors of a company’s departments may develop into a conflict, disputation are duly expected. Accordingly, the attempt to propose a practical solution to solve such cases has been a significant concern in company Law. Among the existing solutions, arbitration has always been a well-received one because of its advantages. Nevertheless, considering the unique characteristics of companies and the multiplicity of departments, the practice of this solution has faced several challenges and ambiguities particularly as far as the concept and criteria of internal disputes and arbitrability are concerned. Bearing these points in mind, this study examines the arbitration in intra-corporate disputes in the legal systems of Iran and the England. Concepts like intra-corporate dispute, scope of arbitration, and barriers to arbitration are delineated in the first step. The findings of this study suggest that within the Iranian legel system arbitration of intra-corporate disputes is subject to the general rules of corporate law and arbitration law due to lack of specific laws while in the England the jurisprudence, in some cases, examines both the status of arbitration in a company’s internal disputes and the identified obstacles. Also, it gives the concerned parties considerable amount of authority to take advantage of arbitration. Moreover, it takes structural barriers, public policy, restrictions on the type of compensation, and conflict with the rights of third parties as the most significant obstacles to the practice of arbitration in these cases.

Obligations of the type of legal duties are stated for the lawyer and not contractual obligations that can be requested to be fulfilled. Among these duties are observing the interests of the client and not exceeding the limits of the granting authority mentioned by the legislator in Article 667 of the Civil Code. In this study, we seek to investigate whether the action of the attorney within the given authority is the same as the observance of the client's interest or that each of the permission and interest is different from the other and acting on each of them prevents the attorney from doing the case? In other words, is there unity or discretion between permission and interest? After researching the law books and the writings of the jurists, the authors came to the conclusion that permission (authority) and interest are not the same and each is different from the other, and the attorney should do each of these within each other. Also, by drawing the scope of interest, it became clear that by accepting the theory of multiplicity, the guarantee of non-observance of interest is not more than one case and there is no need to express the three assumptions that exist in legal writings.

In Imami jurisprudence, the composition of the form of divorce in the presence of two just witnesses are considered a condition for its conclusion. On the other hand, obtaining a certificate of impossibility of settling and registering a divorce and remarriage is a legal obligation and the offender is subject to punishment. The present article answers these questions: Is testimony relevant in concluding a divorce or can it be replaced by its legal formalities? What about the referral? What is the result of non-observance of the mentioned legal formalities? In response, by using the descriptive-analytical method, while comparing the role of testimony and legal formalities in the structure of divorce and recourse to it, by studying the jurisprudential principles of the issue and observing the purposes of Sharia and the goals of the legislator, to present a new and documented picture of correct divorce. And redraws the role of testimony in divorce and recourse؛ Documented with arguments such as the instruction of the matter to be testimoned, its non-subjectivity, the non-devotional nature of divorce, the conversion of the issue into a matter and therefore, after all three clauses (Talaqohn, Amskoohn, Farquhn), But in view of the reasons for the necessity of caution in Foruj and Araj, we give up the generality of the holy verse and we believe that the necessity of the mentioned precaution is not to be strict in concluding or returning to the marriage and fulfilling the recourse, with the least formalities, unlike divorce.