Resolving the Conflict between Rights and Interests in the Development of Urban Passageways

The development of passageways, streets and communication networks are the framework of cities in general. They are one of the main factors shaping the structure of the city that play the role of its vital arteries. There is a clear relationship between the development of the city, the growth of its land price, the dynamics and economy of the city, and all the activities of the inhabitants of the city with the passageways network. The development of societies, the expansion of urbanization, and the emergence of many problems and restrictions in inefficient urban contexts, have created the need for policy-making, planning, and the implementation of public and development projects in the urban context. To solve this challenge, improvement and renovation plansconsider widening the passages as one of the appropriate solutions. Regarding the implementation of the principles and rules of these plans or not, there is a conflict between public rights and interests and private rights and interests of individuals. In this study, the reading of ‘LāḌarar’ maxim with the approach of the governmental jurisprudence of Imam Khomeini and Ayatollah Sistani is introduced as the appropriate criterion for solving this conflict.According to this theory, the maxim of ‘LāḌarar’ represents the authority and duty of the Islamic judge (ḥākim al-sharʻ) in denying harm (ḍarar) to the public.Accordingly, there is no doubt that the municipality has public power, but based on the theory of governmental jurisprudence, the municipality is appointed by the guardian-jurist (walī al-faqīh) as the arm of governing. In the course development process, the municipality does not have the right but the duty to widen the passageways. To resolve the conflict between private rights and public interests, the municipality is obliged to act in favour of public rights and interests wherever the denial of harm (ḍarar) to the public is proven, even if it is to the detriment of private rights and interests. The results of this view provide better and greater protection for the general rights of citizens and in cases of refusal and withdrawal, there is no need for a governmental decree, because the plan approved by the municipality, assuming it has legal conditions and the approval of the highest official of this institution, is the same as the governmental decree of the ruler.
Keywords: Widen the Passageways, Urban Management, Conflict of Rights and Interests, the ‘lā ḍarar’ Maxim, Governmental Decree, Governmental Jurisprudence, Ayatollahs Khomeini and Sistani.