فصلنامه پژوهش تطبیقی حقوق اسلام و غرب
سال نهم شماره 4 (پیاپی 34، زمستان 1401)

Public interest includes affairs that are beneficial to the people en masse. Building on the the right of every individual to file lawsuits as well as non-governmental organizations to do so on behalf of the people, public interest litigations play an important role in fulfilling justice and actualizing the rights of the public which might have been disregarded due to poverty, disabilities, illiteracy, negligence, etc. Consistent with Art. 156 of the Iranian Constitution (hereinafter the Constitution), the Judiciary Branch is held accountable for maintaining justice in the society. Paragraph (2) of the Art. exclusively stipulates that the very task of restoring public rights- which itself precipitates the restoration of justice- is entrusted with this branch. The Guidelines on the Supervision and Pursuit of Public Rights- developed based on Art. 156 of the Constitution- has specifically made the prosecuting attorney liable for the restoration of public rights. However, it has not so far been fulfilled properly mainly due to the many onerous supervisory and judicial responsibilities the prosecuting attorney is entrusted with. It, therefore, behooves the Legislature to formally acknowledge public interest litigation and the potential it carries in restoring public rights- and in effect social justice. Recruiting a descriptive-analytical method, the researchers have examined the body of laws and regulations in the Iranian as well as some foreign legal systems. It is concluded that the right of the individuals in filing public interest lawsuits has not been identified in the Iranian legal system which, it is recommended, shall be reconsideredt.

One of the conditions for Qisās, according to the majority of Imami and Sunni jurists, is the absence of a father-child relationship between the killer and the killed. This means that if a father commits the murder of his child, he will not be subject to Qisās. It is maintained that if the child born is the result of an illegitimate relationship between a Muslim man and a Muslim woman, the Shariah discredits the father-child relationship. Due to the lack of such relationship, it is then a bone of contention whether the adulterer who intentionally kills his illegitimate child shall be punished by Qisās. Recruiting a descriptive-analytical design, the researchers have examined Shariah texts as well as the expert opinions of the jurists and found that the adulterer can apparently be exempted from a Qisās even in the absence of the legitimate father-child relationship. It is due to the fact that the Shariah has not exclusively stipulated the legitimacy/illegitimacy condition of the child birth upon deciding on the Qisās issue. It is also more consistent with the principle of caution in Islam.

The right to life is the leading natural human right which is respected in all legal systems. It is preliminary to the many rights which are basic to the human being and there are tight restrictions on the circumstances one might be deprived of it. Recruiting an analytical-critical approach, the present study is aimed at examining human rights documents to determine (a) the extent to which the right is cherished, (b) how "death penalty and abortion" is viewed, and finally (c) whether the documents adopt a consistent stance on the circumstances which lead to the deprivation of the right. Findings suggest that despite the highly restricting approach on death penalty, abortion is legally and rather generously accredited. Finally, it is maintained, such a paradoxical stance on the right to life- emanating from the liberal and feminist views- is in obvious opposition to both religious values and human rights standards.

Achieving sustainable development requires the utilization of a variety of financial, human, technical and scientific resources. In this vein, social security can be utilized as a means of resource procurement. It is not, however, explicitly mentioned in any of the documents on sustainable development. Recruiting a descriptive, analytical and comparative design, the present study investigates the bases, scope and mechanisms of social security in achieving sustainable development in the views of Islam and the UN Committee on Economic, Social and Cultural Rights (hereinafter the UNCESCR). Social security has been identified and addressed frequently in the verses of the Quran and the Hadith. Yet, despite the provisions of the Covenant on Economic, Social and Cultural Rights (hereinafter the Covenant), social security has not been properly addressed at the international level. Finally, the Covenant’s approach to social security and the actions taken by the UNCESCR as the oversight body of the Covenant to link social security and sustainable development, how social security can be utilized in so doing, and the eminence of social security in Islam are further analyzed in the study.

The ability to resist the attractions of crime has been referred to as self-control; the very decisive factor in crime rate in General Crime Theory. Vara, Morāqebah, and Taqwā have been used as equivalents in several Islamic texts including Mahajjatol-Baydā. Despite prima facia similarities, self-control is wider in temporal and palatial aspects in viewpoints of Feyz Kashani and Hirschi, with the former believing in the existence of a persistent and omnipresent guardianship and the latter concentrating on the socialization of all members of the society. Recruiting an analytical-descriptive design, the study revealed that Feyz Kashani provides a more comprehensive account of self-control in purifying the mind of the criminal fancies and perversions and generalization of the effect of self-control on the unified status of the offender and victim. He did not believe that self-control is age-dependent; rather, he proposed several other socializing strategies including Sela-Rahem and training instructions on mastering internal stimuli.

Preference for prevention over cure is a truism. Precaution is an important type of prevention. Particularly, the Precautionary Approach in Civil Liability has been increasingly emphasized in recent decades. However, what the term precaution conveys and the specific stance it takes in civil liability is underexplored. Indeed, despite the many recommendations for the Precautionary Approach, little has it been studied to define what it is or how it works. In this vein, recruiting a descriptive-analytical design, the present study seeks to answer this fundamental question. The Principle of Precaution has already established itself as a moral and legal duty, and of great importance in dealing with various issues, especially social behaviors. Findings suggest that, among the many proposed and conceivable roles, precaution could logically be considered as the goal of civil liability in this respect. Explanation and justification on other roles are beyond the scope of the study.

The Islamic Republic of Iran was originally constituted on the principles of monotheism, justice and human dignity. The economic outlook prescribed by her Constitution, accordingly, endorses these principles. Indeed, the constituent power viewed the economic system as a means of providing the material needs of people to achieve loftier goals- defined in the Constitution as human growth. Respect for human dignity is a top priority of the Islamic Republic. Stated in the preamble, several more articles reinforce the growth-oriented economic theory and propose mechanisms the State shall deploy to achieve human excellence and growth other than merely economic development. Much in the same vein, the Constitution of the Federal Republic of Germany, albeit instituting a free-market social order, builds on the religious and philosophical ideologies to depict human as a spiritual-moral being who shall act freely. Bound by moral forces, these actions may help the human grow and develop a moral personality.

Obligations are of two types: personal and non-personal. Generally, obligations are not bound to the obligator’s character, and in effect, the he will be obliged to fulfill the specific performance should he refuse the performance of non-monetary obligations. In Article 2-2-7 of the UNIDROIT Principles of International Commercial Contracts (UPICC), the rule of specific performance the same non-monetary obligation is acknowledged; however, in Clause D of the Article, as acknowledged in the regulations of many countries, performance of an exclusively personal obligations is excluded. Art. 239 of the Iranian Civil Code maintains "if the obligator cannot be convinced to perform the subject of the contract and it might not be performed by a third party either, the other party will hold the right to terminate the contract. Art. 729 of the Code of Civil Procedure of 1939 considered the performance of an exclusively personal obligation mandatory- which was repealed in 2000. Yet, drawing on the same Art., Art. 47 of the Law on Execution of Civil Judgments of 1978 considers the performance of an exclusively personal obligation mandatory. Recruiting a descriptive-analytical design, the current study investigates the sanctions for the performance of personal obligations in the international trade documents as they arranged in line with the domestic laws of the countries party to the agreements. Findings suggest that the elimination of sanctions in the implementation of Art. 47 of the Law on Execution of Civil Judgments, the impossibility of specific performance and execution of the judgement in such obligations, and considering the right of termination for the party in loss are consistent with the new legal and Fiqhi standards on this type of obligation.

Many Western thinkers distinguish ethics from law and legitimize some rights which are legal yet essentially immoral. This way, the right to be wrong comes into play in modern human rights discourse. The basic principles of this right include separation of law from ethics, non-interference of the State in norm-making, and acknowledgement of the right to civil disobedience.  However, there are some other Western thinkers who refute the right, and in effect its principles, holding that it leads to an unrestrained law. The Islamic thinkers, unlike Western thinkers, believe that the source of right belongs exclusively to God and that Man is obligated to follow the divine commands to achieve eternal bliss. They maintain that it is the duty of the State to set the scene for the obedience of mankind. And that it is only the divine law which is inclusive of both ethics and law and can lead man to salvation. Moreover, civil disobedience is strictly prohibited in Islamic law unless it is done in accordance with ethical principles and in Mantaqa al-Farāq. Use was made of the descriptive-analytical design in conducting the present study.

The law of contracts is an important part of any legal system. A major challenge in this regard is how sanctions are determined in the event of the breach of a contract. Consistent with a set of pre-determined goals, all legal systems have made certain rules for the breach of contractual obligations. In the law of the United States, a strict liability system governs in terms of preservation of a contract as well as compensations for the damages of a contract breach. Nevertheless, drawing on the different aspects of the consequences of this liability, researchers have developed new perspectives on the fault-based enforcement of liability in recent decades. The Iranian Law, rooted in the Islamic jurisprudence (the Fiqh), limits the claim for contractual damages circumstantially to the affirmation of parties, customary law, or civil laws due to the differing opinions of Islamic jurists (the Foqahā) on the issue. Following the aims of the laws of civil liability in fully compensating for the damages incurred to contract parties, the loss can be estimated according to its attributability to the offending obligator. Use was made of the descriptive, analytical, and comparative methods in carrying out the present study.

Legal agreements in time-dependent matters are made in the form of a Successive Contract that has a time-oriented function. Consistent with this description, these contracts have significant substantive and procedural distinctions which help an independent type of contracts emerge based on legal analyses and justifications. The Iranian Civil Code does not specify these contracts in particular; however, due to the prevalence of several instances of successive contracts as specific and the need to analyze their legal criteria, a comprehensive study of these contracts seems necessary. Drawing on the relevant literature and recruiting a descriptive-analytical design, the present study seeks to (a) analyze the precise nature of the successive contracts and the role of time in them and (b) explain their most significant legal distinctions. Findings suggest that the necessity of time-passage for the fulfilment of the subject of a successive contract is the very distinctive substantive characteristic of such contracts. The need for normalizing successive contracts and highlighting their distinctions with instant contracts is then justifiable. The criterion would be helpful in determining the instances of successive contracts- whether known or unknown.

Determining the exact nature of arbitration affects the scope of the applicable law on arbitration, the legal status of the international arbitrator, and the exercise of its independence in any national legal system in which the arbitrator operates. In response to the question of the legal nature of arbitration, several theories had been proposed in Western law. Among the theories focused on resolving the conflict between the field of public law and private law, some have given priority to the field of public law (judicial nature and the nature of privilege) and some to the field of private law (contractual nature). Yet, others have tried to reconcile between the two fields (hybrid or mixed nature). Among the theories that acknowledge the evolution of arbitration in the arena of world trade, some have highlighted the independence and transnational nature of arbitration (autonomous or self-governing nature), and some recent theories have focused on multiple sources of arbitration, including national and supranational ones (the nature of legal pluralism). Considering the lack of international arbitration in the past and the prevalence of arbitration only domestically and within the territory of a government, it can be stated that although the words of Imami jurists (the Fuqaha) appear to adopt a judicial nature for consolidation and arbitration, a closer examination of the jurisprudential (or fiqhi) expressions shows that in their opinion, the combined nature (judicial-contractual) rules over arbitration. Recruiting a descriptive-analytical method, the study revealed that the hybrid nature represents the precise legal and jurisprudential nature including domestic and international arbitration law.