نشریه مطالعات تطبیقی حقوق کشورهای اسلامی
پیاپی 1 (تابستان 1401)

Federalism refers to the distribution and configuration of power between the central government and its constituent units. As can be deduced from this definition, when studying federal systems, one must always consider the relationship between the two levels of government. In some federal Islamic states, like the United Arab Emirates and Malaysia and in some other federal countries such as the United States of America and Canada, the boundaries of powers between the federal state and its constituting states and provinces are blurred, and each acts independently in advancing the political life of that state (dual federalism). In others, such as Germany, there is a mechanism for cooperating and synergy of the tasks of the two levels of government (cooperative federalism). There’s no doubt that the type of interaction between the federal government and its constituent units affects the implementation of democracy in a federal government. On the other hand, how a federal government adheres to the requirements of democracy, such as collective participation or guaranteeing the citizen equality principle, is a result of that state's political system type (parliamentary or presidential). Studying federalism and democracy, we realize that although federalism and democracy intersect in many aspects, they are different in conception. Federalism looks at how power is distributed between two levels of government, which is ultimately a diagram of the legal and political form of government, while regarding democracy, we move from the form of government to the realm of ensuring the political participation of equal citizens. The main concern of the present article is to examine the relationship and integration of democracy and federalism in political society. The main finding of this study is that despite the compatibility of federalism with democracy in terms of providing a platform to ensure pluralism, in federal governments, due to the existence of two levels of government, the implementation of democracy faces legal and political complications.

In terms of the degree of freedom of the parties to determine their terms and conditions, contracts are divided into two types: negotiation and supplementary. In the negotiation type, where complete freedom is prevailing, terms and conditions which are already agreed upon by the parties become binding on them in the form of the provisions of the contract. However, in the supplementary type, the parties are not in an equal position in terms of determining the provisions of the contract. They are sometimes provided as a standard form and the weaker party is only free to either join or waive these conditions. Insurance contracts are of this type. The question that arises is whether there is freedom for the parties to determine the contractual terms in these contracts. If the answer is yes, then in light of the fact that the contract is supplementary, two issues shall be pinpointed: the degree of this freedom and whether the parties are in an equal position in terms of stipulating conditions such as mitigating terms. Mitigating terms of liability are those that, upon the agreement of the parties, reduce the degree of responsibility or damage entailed by the contract. As a result, the obliged party might pay a lesser amount following the realization of the damage. The regulations governing insurance contracts, as a supplementary type, were examined in this descriptive-analytical study. Maintaining that the parties to the insurance contract enjoy limited freedom in stipulating the terms of the mitigation of liability and its other provisions, findings suggest that the insuring party is in a superior position, and apparently the insurance regulations need to be modified to protect the insured (weaker party).

The right of Pazireh or offering is a new concept that has no history in Iranian law and it is a privilege that is created for a person in the endowment of a property and the extension of its lease. Its nature can be considered as a condition in the lease contract. Its considerations are, on the one hand, the right and authority to create buildings under the subject of lease (endowment) and on the other hand, to pay an amount in the name of the Pazireh to the Endowments Administration. The institution similar to this right in the Islamic countries, such as Egypt and Malaysia, is a right called the right of "Hokr". Despite such beneficial aspects as increasing the endowments incomes, promoting the purpose of development and productivity of the endowment and helping to organize the growing population in need of housing, there are challenging issues such as the violation of the endowment rights due to the long lease period and the creation of a permanent right for the tenant on the endowment land, the ambiguity of provisions and the waste of the rights of owners, legal problems caused by the combination of the rights of the owner on the endowment area and the methods of transferring of the buildings.Alternative practical methods, which discuss the right of Pazireh in some Islamic countries like Malaysia or Turkey, such as endowment funds and charitable foundations, have been established to maintain their endowments and make them more productive, which can compensate for the shortcomings. Adopting a descriptive-analytical approach, the present study introduces various viewpoints in this regard.

The individual independence of judges, as one of the components of judicial independence, means that the judge is completely free, based on facts and legal standards, and without any pressure or influence from any of the departments, government or other sources to decide. The present study aims at investigating the extent to which the guarantees of individual independence of judges, provided in the basic principles of the judiciary, are observed in Iranian and Afghan laws. Research on this issue will help us better harmonize the laws of these two countries with the internationally accepted principles in the field of judicial independence. This library research, which has been carried out in accordance with the laws of Iran and Afghanistan, shows that in both countries strategies have been envisaged to ensure the individual independence of judges, including the selection process, job security, criminal and civil immunity of judges in Iranian law and the different disciplinary proceedings of judges. However, there are some shortcomings in this area that are addressed in this study.

Rulers in any country are more limited than the ruled as they are in charge of passing and enforcing laws as well as resolving disputes arising in the country. Distribution of power in the legislature, executive and judiciary and distinguishing the functions of each of these powers is a safeguard to preventing the concentration of power in the hands of a particular group or individual, which is called the Principle of Separation of Powers. Employing a descriptive-analytical approach, the present study investigates the separation of powers in the constitutions of the Islamic Republic of Iran and Pakistan. Commonalities and differences between the concept and function of separation of powers are compared and contrasted in the legal systems of the Islamic Republic of Iran and Pakistan. In the Constitution of the Islamic Republic of Iran, Article 57 recognizes the relative separation and independence of powers, as each power exercises its own powers under the supervision of the Supreme Leader. Although the constitution of the Islamic Republic of Pakistan does not mention the separation of powers, in various principles, the specific duties of each power are delineated and the function of separation of powers is perceivable. An account of the strengths and shortcomings of the two systems with deference to the principle of separation of powers could be helpful in ameliorating their functionality.

Today, we are witnessing a series of political and media games by the Western World that seek to undermine the principle of Islamic law. One of these challenges is the issue of corporal punishment in the field of criminal law, to which there is a relatively high sensitivity. The main reason for these sensitivities is that some of these punishments are rooted in jurisprudence or Sharia, so they find an opportunity to attack the principle of religion under the pretext of human rights debates for the non-convergence of these punishments with international documents. The present study aims at exploring the possibility of converging the system of criminal law in the area of corporal punishment in order to comply with the provisions of international law based on the rule of jurisprudential expediency. It seems that through the knowledge that has been obtained from the intentions of some opponents and that human rights debates and international documents are a means not to defend real human rights but a double standard for achieving behind-the-scenes goals, it is expedient to know the exact time and position and to jurisprudentially reconsider some corporal punishments with religious roots and arrangements such as temporary closure. This way, such dissidents would be theoretically disarmed.