فصلنامه پژوهش تطبیقی حقوق اسلام و غرب
سال چهارم شماره 4 (پیاپی 14، زمستان 1396)

In the Roman-Germanic legal system, in a general classification and on the basis of separation of property rights from obligations, the property rights are divided into rights in rem and rights in personam. Owing to the structural significance of this classification, it is refered to spinal column of this legal system. Currently, however, by domination of material approach and the change occurred in the concept of property, this classification has been criticized and some claim of its disappearance. Having no legal basis, this classification has been extended to Iranian legal system, and has been accepted by most of the jurists and has affected many of the legal institutions. While in accordance with numerous reasons including adapting the theory of ownership of unsatisfied property and ownership of benefits, which constitute the essential and key institutions of Islamic law, existence of this classification is extremely doubtful and on the presumption of adaption of this classification, examples of rights in rem and chose in action are not the same in foreign law. In this respect, returning to traditional and domestic classification of "right and property" is suggested by the author.

After the invasion of Coalition forces into Iraq and Afghanistan, armed groups based on religious beliefs emerged and expanded in both countries. Although the general structure and manifest of these groups were rooted in Al Qaeda thoughts, performance and viewpoint of each of these groups in some issues were different from their other like-minded ones. However, the common aspect of these groups is having an ideological thinking and reference to foundations of Islam and Sunni religion in their acts. Nonetheless, with the emergence of ISIS and its inhumane and terrific acts in Iraq and Syria both during the conflicts and after the domination on cities and villages numerous questions have been raised by observers and critics in this regard. In the present article, these conducts are investigated under the view of International Humanitarian Law and rules and decrees of Islamic International Law (Siyar) and the difference of this group with the rules of International Law and Islamic Law is discussed.

Open source legal approach means to provide access to formula of innovation production, innovational information and other required means in innovation for other persons and specifically other innovators. This is for planning the assessment and promotion of the aforementioned innovation and facilitation and expedition of other innovations based on the acquired knowledge from the innovation concerned. Freedom of thought and freedom of expression, freedom of information, freedom of communication and right to development are reliable human rights foundations for open source legal approach. In accordance with the results of the present article, considering the emphasis on and promotion of principles and components of this approach in the aforementioned bases, all of them are reliable as to securing and ensuring free access to formula of innovation production and other needed means in the innovation. Based on the outcomes of this article, not only all of the aforementioned foundations are compatible with Imamiyah Jurisprudence and Iranian Law, but also they are emphasized in both of them. This proves the applicability of the open source legal in Iranian written law, in line with intellectual property law, in case of necessity.

The principle of proportionality is codified as a customary rule in the Additional Protocol 1 and the statute of International Criminal Court as well. However, its concept, nature and conditions for exercise are subject to some ambiguities. Under Islamic law and specifically as regards defense, there are some rules that are compatible with the newly-emerged term of "principle of proportionality". It seems necessary to study this principle comparatively in order to investigate the differences and similarities between these two legal systems and trying to decrease the ambiguities of principle of proportionality. The question is that what are the similar and distinguished aspects of two aforementioned legal systems in this regard? Employing the qualitative method of researching, using principles of legal and jurisprudential deduction and interpretation, and applying comparative techniques demonstrated that there are fundamental differences between these two legal systems as to the concept and some conditions of principle of proportionality. It is due to the fact that Islamic law, because of the significance of lives of human beings, authorises the application of the principle of proportionality in a more limited scope rather than what international law does.

Human rights education, as a significant factor for improving the development of human rights culture in the world, has been the main concern for human rights actors and international institutions in recent decades. Many activities have been performed in this respect, one of the most important of which is the Declaration on Human Rights Education and Training, adopted by the UN General Assembly (137/66 res. 19 Des. 2011). Nevertheless, human rights education has not been able to be promoted and achieve its objectives desirably up to now. It seems that the absence of a proper educational method is one of the most important factors for this failure. Additionally, education of human rights in Muslim societies grapples with the added challenge of contradiction of religion- human rights discourse. Accordingly, the present article, besides elaborating on the university legal clinics, aims to explain the advantages of the clinical legal education of human rights and take steps toward the preclusion of the difficulties of academic law clinics through presenting this method of education in mosque-based law clinics. Furthermore, it attempts to demonstrate that how mosque-based legal clinics can, in conformity with the existing international instruments, provide inexpensive, local, common, interactive and stable means for human rights education in Muslim communities, and reduce the contradiction in religion-human rights discourse simultaneously.

Fulfilling the obligations arising from contracts is one of the significant issues in the law of contracts. If each of the parties of the contract or one of them refuses to fulfill his/her contractual obligations, there are various solutions predicted in different legal systems in this regard. In Iranian law, sanction for this type of breach has been stated not implicitly in a general rule in the field of the consequences of the contract but in several legal articles in contracts such as sale, lease, cultivation and proviso. The first solution is to request the court to compel the obligor by the obligee. In the event of the impossibility of this compulsion, the base for the fulfillment of the obligation by the third party would be provided by the cost of the obligor, and as the last resort, the individual injured by the breach may abolish the contract. In other legal systems, various remedies have been foreseen including abolishment of the contract in the case of breach of the fulfillment of the obligation by the obligor for redressing the injury suffered by the injured party arising from breaching the performance of the contract. In Common Law system, in the case of non-fulfillment of the obligation by the obligor, the general principle is reparation. In Roman-Germanic legal system, the obligee is free to request the fulfillment of the obligation or abolish the contract. In Iranian law, the principle is to compel the obligor to fulfill the obligation. However, this solution is acceptable through realizing of certain conditions. The analytical and comparative investigation of this subject in different legal systems and comparing it to the law of Iran is aimed in this article. The present article is comprised of an introduction and 4 sections.

Liability arising from acts of animals has been raised in human societies from old times. Although some assumptions of this responsibility, which is one of the forms of liability for objects, have been mentioned in certain laws in Iran, it has not been the subject of a separate investigation up to now. Owing to the usage of animals in urban and rural communities, this article, through a comparative approach, aims to study the foundation of liability in Islamic jurisprudence, legal systems of certain Islamic states, and that of France and England. Furthermore, certain examples of the liability arising from acts of animals such as escape and getting lost are not foreseen in Iranian law. Accordingly, through referring to Islamic jurisprudence and comparative law, it is attempted to determine the responsible in these assumptions. The result obtained is that this responsibility is not always based on the fault of the owner or the possessor of the animal and other bases such as absolute responsibility and obligation to safety are governing the civil liability for the acts of animals as well. Additionally, in damages resulting from acts of animals in cities or villages, the documentation on the responsibility of municipality and rural municipality is presented and the suggestion for distributing the responsibility among the responsible individuals "jointly" is offered in some assumptions.