پژوهشنامه حقوق اسلامی
پیاپی 57 (پاییز 1401)

In moral duties, in order for an action to be characterized by morality, it requires free will, and by imposing and threatening punishment, there can be no moral consequence. This view, which has a solid theoretical basis, is largely attributed to Kant. But the consequentialist approach, considering the consequences (good) of the action, allows the government to compel. However, the Machiavellian spirit and the dryness and, of course, the objective inefficiency of such views have led some Consequentialism thinkers to return to the status quo of the will, such as those who, while emphasizing the role of free will in accepting moral matters, believe that the contemplative position should be distinguished from current position. The current situation has changed. However, in science, when we look at the main record of legal ethics in creating good and developing morality through punishment and coercion, it certainly can not be possible as a result, because it is better to do it by accepting the difficult path of conscientiousness. Strengthen the moral will, which, ironically, will result in consistency and durability.

In the eyes of wisemen, the cause of a contract is the main purpose of wise-men in its conclusion. In French law, many regulations relation to commutative contracts are justified and interpreted based on this approach. In contrast, in Iranian law and jurisprudence, it is not mentioned, and instead, "legitimacy of the purpose of contract", "intention and consent of the parties" and “necessity of subject“ for a given contract are required. Some believe that the latter requirement provide the purpose of the contract. However, there are questions that can be justified only in the light of belief in the cause of contract, such as the right of Habs (lien), the responsibility of seller against total loss of the subject matter of contract before taking its delivery, options (i.e., power to cancel a contract) such as delay in paying the contract price, Ghabe (lesion) expensive, defeat, inability in delivery, nullity of contract as a result of non-dining to its indications. This research tries to show the theory of cause of contract in jurisprudence by the "Inni" method and concludes that the content and indications of this theory have been observed by Islamic jurists in the process of reasoning and justifying the mentions instances, although they have not made any clear reference to.

From a legal point of view, one cannot expect the unfair distribution of contractual resources to be enforced. For the fair distribution of these resources, two theories of substantive fairness & procedural fairness have been proposed. According to the theory of substantive fairness, a fair criterion should be considered in advance for the outcome of the contract and care should be taken that the parties to the contract do not violate this criterion. Contrary to this theory, procedural fairness whose followers claim that there is no consensus on a particular type of distribution, try to control the formation process of the contract to make it fair, rather than considering the outcome of the contract. The main a priori criterion for fair distribution proposed in substantive fairness is the application of just price. There are serious doubts as to whether a just price can be considered as a good basis for making contracts binding and enforceable, because the justification for the need to a certain type of distribution under the name of justice is difficult due to disagreement over the concept of justice in the modern world. At the same time, accepting such a basis will make it impossible to justify the invalidity of other illegitimate contracts concluded at a just price. Of course, assuming the acceptance of the theory of substantive fairness, specified legal effects arise from the contract in order to restitute the situation of injured party, which , in turn, face with many difficulties especially in the case of price fluctuation.

In this article, the challenges of identifying rivers as a legal entity in Iran's legal system have been explored, with the aim of creating a context for the protection of rivers, with an emphasis on Imami jurisprudence and Iranian law. The main challenge that motivated this research is the special situation Iran's rivers are facing, which include water scarcity and human encroachment on the river's boundaries. The main question is whether it is possible for rivers to be recognized as legal entities in Iran's legal system so that they can be more widely supported with the help of this method, and what will be the challenges of accepting this point of view in Iranian law? Regarding this challenge, there has been no research background in Iran so far, so the necessity of investigation doubles. In this research, with the descriptive-analytical method, this achievement was achieved that although the social, territorial and critical status of the rivers make this theory acceptable, but there are challenges in this direction that it is possible to accept. This view makes it difficult in Iran's law, including the fact that rivers in Iran's lawThey cannot have rights and obligations, and the mechanism of "enforcement of rights" by rivers is not provided in Iranian laws. The acceptance of rivers as a legal entity requires the strengthening and expansion of theoretical foundations, such as the ability to remove the human-centered nature of current laws, the identification of rights for objects such as rivers, the conceptual development and validity of a legal entity, the feasibility of the independence of rivers.

Principle of publicity is one of fundamental principles of proceeding which has been regarded as an essential component in fair trail in human right documents and there are clear signs confirming it in the Imamiya jurisprudence.  The Civil Procedure Act 1379 unlike Civil Procedure Act 1318 and Criminal Procedure Act 1392 is silent about it; but according to Constitution Act, Principle 165, observation of this principle is necessary in civil cases too.  Principle of publicity do not restrict to usual proceeding that in it the parties are required to be present in the court, rather, its observation is necessary in electronic proceeding; because this two proceedings have not substantive differences, and only holding procedures are different.  On the other hand, currently lack of space in courts and long distances cause this principle to be isolated, using electronic instruments facilitate the presence of people in courts by spending less time and small expense.   This approach not only has not any conflict with jurisprudential foundations, but also it is in compliance with them under the auspices of conditions of time and place, as it removes losses arising from the isolation of publicity of trials and facilitates its application. Practice of wise-men, generality and unconditionality of reasons relating to publicity of proceeding together with lack of prohibition on the side of Shariah confirm this approach. Therefore, the comprehensive system of electronic proceeding and national justice network should not restrict itself to the parties of a given case and instead it needs to allow those who intend to participate in legal proceedings by creating technical and legal infrastructure.

An important issue that has been neglected in research on the analysis of legal theoretical foundations is the epistemological analysis and description of the theoretical structure of this science. Some jurists believe that legal knowledge is an independent knowledge that defines its concepts and principles; Others, on the other hand, believe that concerning defining and explaining basic concepts and principles, law and its branches, despite their methodological independence, are inevitably bound to follow the definitions provided by other sciences. Using the definition of “knowledge structure” provided by justification theories, the first group can be described as “cohesive” and the second group can be analysed according to “fundamentalist” criteria. In this article, an attempt is made to first analyse and evaluate the effects of coherence and fundamentalist approaches in legal theories, and then to examine the impact of each of these two approaches in the analysis of criminological theory. Since criminological theories are committed to upholding the fundamental values of society and regulating the coercive relationship between the state and man through the use of “power” and coercive power, the analysis of its epistemological structure has significant effects and dimensions. Consequently, if the structure of criminology is analysed with a coherent approach, problems such as “lack of input”, “infinite sequence” and the challenges of justifying extrajudicial statements will arise. In contrast, fundamentalist analysis of criminality makes it possible to speak of “political limitations of criminal law” instead of “moral constraints of criminal law”.