نشریه فلسفه حقوق
سال دوم شماره 1 (پیاپی 3، بهار و تابستان 1402)

Durkheim has considered crime as a "social reality". In Durkheim's thought, crime is a matter arising from the collective conscience changing with the passage of time and space with a special mechanism. Therefore, in his view, changing the realm of criminal behavior is a "normal" issue, and not their inherent characteristic. Simultaneously, in this approach, crime is an independent entity beyond the individual wills in case of members of the society that finds meaning under "social categories". This view guarantees the determination and stability of social reality that however, has some characteristics in terms of moral content and investigation method deeply rooted in Kant in the approach of Durkheim. Therefore, the lack of attention toward such foundations has provided the case for misinterpretations of sociologist's ideas, accordingly, incorrect analysis of his opinions,has necessitated a reconsideration in this regard. This research, in order to investigate Durkheim's special perception, as a neo-Kantian sociologist regarding social realities, especially crime, with the analytical method, is presenting the most relevant manifestations of Kant's thought in Durkheim's and the way of evolution and manifestation of his thought in Durkheim's views has been investigated. The outcome indicated that Durkheim, inspired by Kant's, tried to propose a new model for the study of ethics in modern societies by applying some reforms. Contrary to Kant, Durkheim never considers issues to be part of the structure of human nature as fixed and unchanging, but considered in the form and structure of people's thoughts arising from the content by the spirit of society. Considering the issues as social in Durkheim's thought, on the one hand, guarantees the stability of morality and the preservation of its totality, on the other hand, justifies the moral differences of societies throughout history and in all over the world. Therefore, in Durkheim's view, morality emerges from the collective conscience of society, which really exists, but may undergo alterations in the collective conscience. The condition of morality in Kant's thought, which was the existence of the absolute ideas of God and the immortality of the soul, was reduced to more abstract matters such as the collective will in Durkheim's regards, as the rule of recognition of the state. According to Durkheim, by identifying the social and moral realities, the state presents a single narrative of acceptable behaviors and considers them contrary to the cases as crimes. Philosophically speaking, this approach is encountered with the challenge not providing a criterion for judging the behavior of citizens and considering them as crimes. Consequent theories of criminology, on one side, doubt the function of the state in identifying collective realities due to the existence of different moral and behavioral attitudes in society, on the other side accept Durkheim's social reality approach as a basis for marginalizing different tendencies as criminals which are contrary to the social reality determined by the state.

The purpose of the current research is to investigate the theological account of nomos in the thought of Karl Schmidt, and its relationship with human identity. It has been depicted in which case the word nomos relates to human identity and why the new cosmopolitan thought is considered as a threat to the independent identity of societies and how to redefine the concept of nomos in order to help to preserve the conflicting political and social identity of individuals and societies. Through hiring a descriptive-analytical method, the key concepts of Schmidt's philosophy in the field of space, property, law and human existential identity were investigated, and finally the relationship between the concept of nomos and human existential identity was discussed. The results indicate that Schmitt expressed the restoration of borders to preserve the identity and political distinctions of individuals and societies as an essential issue, thus he aims to redefine the relationship between man and the earth in a theological expression, and because of that he surveyed the roots of the concept Nomos explaining the nature of Nomos in a relationship between earth and man. Nomus to be considered in connection with man, land and law, and removing any of these components, seems meaningless. Regarding the relationship between man and the earth, Schmidt based his thought in opposition to liberal globalization in order to preserve the borders between countries, and considered the preservation of borders equal to the preservation of the political and social identity of man.

Manism and Mazdakism are two famous philosophical schools of thoughts in ancient Iran, which apparently have some similar teachings, and both of them were introduced against the states of their era. It is important to identify philosophical schools from various aspects, one of these aspects is the examination of citizenship rights, which provides us with the possibility of more understanding their teachings according to the requirements of today's society. In addition to identifying the various dimensions of the both aforementioned schools, the purpose of the research is to evaluate the teachings in terms of citizenship rights. Based on what mentioned, the main question of the research is to what extent citizenship rights have been identified in the schools of Manism and Mazdakism? To respond more precisely, it is necessary to examine the historical traces, books and study the teachings related to the above schools. First, to identify their philosophical foundationsfor this aim, it is necessary to find the answers in both schools through five important philosophical categories, ontology, anthropology, epistemology, methodology, and sociology, respectively, because it leads to an accurate identification and compliance of the both schools of thoughts teachings. Second, is to evaluate the teachings of these schools regarding citizenship rights, based on the philosophical responses of Manism and Mazdakism schools relating to anthropology and sociology. The most prominent approach of the current research carried out with a descriptive-analytical method, is although in the teachings of the Manism school, the ascetic and worldly prevails having led to the denial of some of the basic rights of human beings, but in religous teachings, there are clearly signs to regard civil rights such as equality between men and women. It should be highly mentioned that the denial of these rights was only related to a certain group of people who voluntarily accepted such a lifestyle. In addition to asceticism, with the aim of emerging justice and equality between people, Mazdakism proposes teachings such as the sharing of property and women. As a final result, it should be explicity mentioned that by considering the social contexts in the era of Mani and Mazdak, respect for fundamental rights of human can be seen in these two rituals, but the teachings of sharing property and women's right in the Mazdak school are considered against the rights of citizens.

The aim of the current research is to explain the desirable nature of parliament's transparency and its theoretical challenges in contemporary Iranian constitutional law based on the philosophical findings of modern law in relation to constitutional jurisprudence. The research method hired, has been qualitative and the analytical philosophy in contemporary law in response to how the right to transparency is made available, that believes the possibility of having enough information for four answers in the public domain is equal to guaranteeing transparency. Who are the decision makers? How are they chosen? Based on what principles do they make decisions? And the benefit of the decisions taken will be given to which group or people? Accordingly, in a completely transparent parliament, the following should be organized to guarantee these questions: transparency of processesand decision-making methods, transparency of priorities and policies, transparency of documents and reports, audio-visual and interactive access to the ballots of parliament members and technological access to data, transparency of properties and maintenance costs and the cost of human resources, financial transactions of members and administrative expenses, transparency regarding guests and current expenses, the cost of occasions, events and trips, transparency of members' information, transparency of parliamentary proceedings and complaints. Criticisms, in any other words, intellectual challenges that this philosophical level can be useful for legislative operations have been raised by some schools of public choice and behavioral economics, believing that: transparency causes people to move away from specialized decisions and get absorbed in the currents of interests and extreme populism. On the other hand, the implementation of transparency is very costly and of little use. The critical response to the mentioned challenge firstly, believes however, all political rights are very costly, in principle, its necessity for the society cannot be denied. On the other hand, although there is a possibility of extreme populism, transparency can be precisely opposed to the above-mentioned importance and prevent populism with the guarantees of the profession in the way it is implemented and based on its basic philosophical principles. In fact, the aforementioned criticism is meant more than a definite criticism in the prohibition of transparency but a clear attention to guaranteeing the dimensions of philosophical transparency. Also, for its function and purpose (regarding providing acceptability and legitimacy for political representation), the oath of allegiance is considered parallel to the theory of representation in public law, which is totally considered the basis of parliament in modern law. One of the essential requirements in the philosophy of Islamic law in the contract is the absence of jeopardy in the acts of guardianship, and the guardian is obliged to clarify the limits and quality of his expediency in the acts of guardianship. On the one hand, in the practice of governance in public affairs in Islam, observing the right and the rightness is one of the urgent and necessary matters that the Shariah is not satisfied with leaving it aside, and the rightness in the contract of guardianship is necessary for transparency in many cases, and therefore the philosophy of Islamic law can include the issue that Parliament should be transparent. On the other hand, the interpretive originalism considering the interpretation of the text of the constitution according to the opinion of the Constituent Assembly, shows by examining the text of the constitution that the constitution of the Islamic Republic also supports the issue of transparency. The result of the review of the provisions provided in the legal plan depicts that if they are approved, the Islamic Council will not be able to be transparent, and many transparency provisions in this plan have been left incomplete and neglected.

The aim of the current research is to examine the philosophy of women's rights in the thought of Abul Hasan Ameri Neishabouri, emphasizing his book "Happiness and Prosperity in the History of Humanity". The research method is rational and descriptive and information processing is carried out as the descriptive-analytical method. Mohaghegh Ameri's thought in the field of women's rights can be classified into two main categories, first, the right to gender equality and the second, the right to freedom. In the first part of present research, the five examples proposed by Ameri, i.e. women's executive capabilities, humane behavior with women, women's subordination, women's inherent defects and their consultability, have been discussed. In the second, six examples of behavior towards the husband, the husband's guardianship, the restriction of instinctive relations with the husband, the preservation of the husband's property, the prohibition of socializing with non-mahram men, and the requirement of hijab were discussed and investigated. Under each of these debates, Ameri quoted some from philosophers or religious scholars and expressed his opinion in some cases. In total, their positions in these 11 examples can be divided into two general categories. In some cases, as women's practical capabilities, humane treatment with women, and the superintendency of mothers over their children, have a completely positive view, and in this respect, at least in terms of evidence there would be no difference between men and women. In other cases, such as prohibiting women from associating with non-mahram men, men's authority over women in enjoying themselves and leaving the house, not cheating on their husbands, obliging women to wear hijab, good behavior, honesty and obedience to their husbands and limited consultation with them, as well as their view can be justified. However, in two debates about the natural - and not positive - dominance of men over women and also the existence of inherent defects in women - based on a quote from Pythagoras - Ameri’s point of view can be meaningfully criticized. In this research, along with the philosophical analysis of eleven examples aforementioned, the hypothesis has been proven that Ameri's view in the field of women seems like balanced. Despite the fact that it has been said that the advanced Islamic philosophers do not have a positive view toward women and consider them as second-class citizens, in the examples above mentioned, they have either directly supported women's rights, or the points proposed by Ameri more or less. However, in two of these cases, his ideas have been criticized.

The school of legal positivism is considered as one of the most prominent and influential legal schools in the sector of law. The challenge mostly continued to be faced by legal researchers regarding the accurate knowledge of that, is most of the theorists of positive law school have refrained from explaining and developing the philosophical and epistemological foundations of legal positivism as completely independent and self-sufficient science; therefore self-sufficiency can be regarded as one of the main issue of school of legal positivism. The lack of clarity in philosophical foundations and reliance on the study of law, due to what in social reality is and should be, makes it difficult to analyze the detailed and deep philosophical criticism of positivism. In this regard, the question of the current research is what the implicit and extra-legal presuppositions of self-sufficiency of the legal positivism school are emerged from, and what the manifestations and results of such self-sufficiency in this school are. The research method is descriptive-analytical and the outcomes indicate that the school of legal positivism by an emphasis on its self-sufficiency feature, despite the specification of its theorists to specific philosophical foundations, has a tight relationship with the philosophical assumptions of the Enlightenment era and self-sufficiency. However, this school is manifested as self-sufficiency in setting the law and its interpretation, equality of rights with the law, delivery of justice to legal justice, social order as the goal of rights and etc. Also, all the manifestations and fruits of legal positivism can be vividly seen in relation to the self-sufficient approach of the aforementioned school and its alienation from extra-legal sources such as religion, moral law and philosophical propositions; In such a way, the origin of the school of legal positivism can be seen in this characteristic of self-sufficiency.

Children's rights have been taken into account from different aspects, esp. in consequent of establishment of the Convention on the Rights of the Child. The present research by considering the methodology based on descriptive and focusing on normative propositions of children's rights, has been divided into three main categories: the right to provide protection, the right to participation, and then, considering the rights to ensure implementing which has been divided into two parts: the right to provide for physical rights and Provisional ones as emotional and mental rights in the Convention on the Rights of the Child and Iran's legal system. The present research deals merely with the right to provide for the child in the convention and legal system of Iran, through innovative categorizing the right to provide for physical and mental support. It is highly believed that there is no fundamental difference between these two from the physical aspect; however, from the cases of differentiation between the legal system of Iran and the Convention on the Rights of the Child, it would be specified to support the spiritual and psychological dimensions. Although the Convention deals with such cases implicitly, the Iranian legal system applys a double standard policy in this regard, i.e. about girls, clearly declared and precisely striken the point, while any other case than the above mentioned, there would seem only paying attention to general cases and some relevant examples. However, the judicial procedure aims to compensate for this by issuing related decisions and verdicts. Another example is that in the Convention on the Rights of the Child, the right to have a name is cleatly sufficient, while in the Iranian legal system, the right to have a good name is restriclty specified. Undoubtedly, in this regard, Iran's legal system is more complete than the convention and more compatible with children's rights. Also, the Convention on the Rights of the Child only emphasized the right to have a family but not mentioned the right of the child to have a legal lineage. Simultaneously, the Iranian legal system has provisionized the right of the child to have a lineage as well as to have a family which emphasized this from various aspects. According to what above said, Iran's legal system, in addition to the right to have a family, emphasizes the right of the child to have a legitimate lineage, and therefore considers superior protection beyond the convention for the child. This should not lead to the idea that a child born of illegitimate parentage does not have rights in Iran's legal system, but in these cases, the said child has all the rights of other children except the right of inheritance. The right to ensure human behavior has not been legislated positively in Iran's legal system, besides the legislator has limited himself to stating the negative aspect of the prohibition of physical and mental torture, which is necessary to be taken into consideration in future legislations.

According to evidence, Martyr Motahari is considered as one of the few theorists of natural rights in the philosophy of Islamic law. Such claim will be proven after considering interpretations and arguments of other theorists regarding Islamic law and rights and their thoughts gap with martyr Motahari is crystally clarified. The present research, focusing on Martyr Motahari's point of view, regards the issue as an introductory foundation of other topics, therefore less attention is paid to such differences in his ideas. This article tries to fully describe and analyze how Martyr Motahari reached the theory of natural rights in the intellectual thoughts of Shia (Imamia). Therefore, the main question of the research according to Motahari is whether or not the source and basis of laws and rulings in Islam is natural or legal. The following question is how these rights can be discovered. The research method hired here, is descriptive and analytical; the results depicts that according to Martyr Motahari, Muslims are the founders of natural rights in the sense of human rights. The essence of the right to follow the solidarity of theoretical and practical foundations, such as monotheism, harmony, creation, legislation, and the evolutionary system as mentioned in Islamic wisdom, is non-subjective, discoverable, and self-contained. The disringuished characteristic of Martyr Motahati's thoughts and teachings from other contemporary theorists is his ontological dimension and commitment toward recognizing the right of reason in ijtihad and the harmonious ratio of natural right and divine right in the epistemological legal dimension. By his deep awareness, he reveals an idea that although it moves under the principle of justice and following rules and rights from the real interests; meaning that he calls himself from the group of Shia Imamia, but in reality, he sees the essence of the right as legal and subjective. Therefore, while such thought declares that reference to nature to obtain rights is rejected, Martyr Motahari considers nature to be the sign of God and every natural talent is an evidence of a right. Powers and talents are signs of rights and efforts to reach the goal, ultimate end, actuality of that power and constitute the provisions of rights. Martyr Motahari, regarded the logical result of the principles and rules, such as justice at the source of reason, the companion of reason and Sharia, following the rulings from the real benefits and evils, the duality of the real and the apparent issues, etc., proposed and supported the theory of right and natural law in the legal epistemology of Shia /Imamia. The mentioned theory is in opposition to the prevailing thought among the contemporary thinkers of Shia's. The opposite theory separates the evidentiary aspect of rights from the affirmative dimension and argues that rights and duties are legitimate and subject in Islamic legal thought. The view, being similar to the Ash'ari view, is criticized by Martyr Motahari. According to him, Islam, in the guise of Sharia, is based on facts and reality, expressing the right and the law, not its author nor founder. Therefore, reason as a tool for recognizing truth, reality and nature is highly valued in legal epistemology. Of course, that never means all legislating nor rulings can be understood intellectually, but the correct true meaning is the possibility and openness of the intellect to understand the law, even if part of the above Sharia is to percept the intellect. But some people, by generalizing the exception to the entire Sharia law, have disabled reason and put the entire burden of a Muslim on worship, restrictly.

Today, normativity and its different types are emerging in whole system of international law in various ways, which has formed the existing new order of international law and overshadowed the dynamics of it. The importance of norm making under the principles of natural rights and natural law, causes moral obligations in international law under the free will of states resulting in the balance of positivist law with the emphasis of minimum of natural law. In this regard, by hiring the descriptive method, this research examines why norm-making with the framework of modern natural law, seeks to provide a solution for the basic challenges in contemporary international law through an analytical approach, so emerging norms have overshadowed the existing order. Considering the importance of international legal obligations in the contemporary world, the obligation of state-countries' to moral legal obligations and tying the concept of morality and law-though to many there is no need to establish a relationship between them- also the change of the international order and the revival of modern natural rights with emphasis on the cooperation of states in consolidating the international common good, with the highlights of human rights and justice, has created the universal responsibility in moral observance of international obligations, including universal obligations, which justifies the feasibility of normative theory based on the rules of natural rights under the positive law. Today, positivist international law is no longer hard law based on the pure will of states due to the validity of international law rules with the help of the pursuit of the international common good, and by safeguarding the characteristics of common values under the protection of human collective life, the rights of solidarity, peace and human security, respectively have been in the center of attention. The reflection of these common values of humanity under the modern norms of international law follows the parallel moral obligations of states in guaranteeing both individual and social interests on the basis of the rule of law and norms of natural rights, in the form of human rights.

The distinction between natural intelligence and artificial intelligence (AL) is one of the concerning issue of intelligence researchers. The creators of artificial intelligence are attempting to simulate the structure and function of the human brain in the light of the progress of neuroscience and cognitivism, as well as in the light of the theories proposed in the philosophy of mind with an emphasis on functionalist and behavioristic view. On the other hand, psychologists such as Ibn Sina(Avecina) have analyzed the differences between natural human intelligence and artificial intelligence in their philosophical psychology. The human soul, as the source of human intelligence and life, has various perceptive and stimulating capabilities regarded as the armies of the soul. The main question of the current research is what are the outstanding advantages of natural intelligence over artificial intelligence from Ibn Sina's point of view. In this research, efforts have been made to answer that in the light of the rational-analytical method. In the measurement between artificial intelligence and natural intelligence, there are three types of artificial intelligence, namely: weak, medium and strong. The results indicates the nine main differences between these two types of intelligence from Ibn Sina's point of view: creativity vs. innovation, compositional composition, detail orientation, focusing on a specific area of self-awareness, self-discovery, the internal evolution of natural intelligence, the power of narcissism, moralism, the power to remind and reminisce. Considering all the differences between artificial intelligence and human intelligence, it is appropriate to distinguish between the current state and the future state of artificial intelligence in terms of legal liability and torts law. According to the current situation, artificial intelligence lacks legal will and merely based onthe theory of legal instrumentalism can be emphasized. However with regard to the futuristic perspective of artificial intelligence, assuming the realization of the existing characteristics of the soul, it is possible to imagine such liability or tort law for .

The aim of the present research is to investigate the philosophical foundations of purposefulness and reason-oriented actions with legal consequences in the light of new findings of neuroscience, behavioral economics and contemporary philosophy of mind. In aim to identify these foundations, firstly, the concept of ultimate reason-oriented purpose in human behavior was analyzed from the perspective of philosophers (from ancient Greece till now) and contemporary neuroscientists. Then, the position of purposefulness and reason-oriented behavior with legal consequences has been investigated. The main question of the research is whether or not a human being performs all his voluntary actions (with an emphasis on legal actions) in a purposeful and reason-oriented way? The main hypothesis of the research is that human voluntary actions, including legal actions, are rationally oriented and due to the realization of a purpose. The findings of the research in the position of rejecting such hypothesis indicate that many voluntary human actions, including some actions with legal consequences, are emotional with limited rationality and the influence of environmental stimuli. Accordingly, there would not be judged by the example of a reasonable person with complete rationality in view law. The proposal of the research is to adopt an approach in which, besides the rational and ultimateistic aspects, the limited rationality of man in calculating and analyzing situations the emotional aspects and the nervous system, and the influence of environmental stimuli in the choice of decision, be paved and human beings never be judges through relying on rationality in all situations with an ideal standard. Especially in sudden events and lacking enough time that it is not possible for humans to process accurately and completely rational in calculating all kinds of possibilities and their consequences and referring to the reasons of their beliefs, preferences and information to choose the appropriate behavior.

The purpose of the present research is to critically review the method of moral reasoning in criminalizing sextual behaviors. According to the research the direction of the aforementioned analysis in methodological aspect is general and can be converted to a debate not only in philosophy of law but also it can be generalized to all existing legal systems including Islamic law. In this regard, the research tries to point out its consequences by setting the criteria of Hart- Devlin debate and utilitarian attitude as a logical constant through a methodological approach and without any striking the point in content. The research is a fundamental study in criminal law philosophy, hiring the analytical philosophers’ method; therefore, has devoted the serious priority to exploring the concepts of “propositions” and then examined legal facts. In Hart-Devlin debate for the first time, methodological aspects of moral reasoning were discussed. The discussion left pure legal aspect aside and then followed the legal philosophy. The result of such division firstly, leaves a room for moral reasoning in liberal political theory, secondly reveals facts in criminalizing the sextual behavior. The aforementioned methodology indicates that the moral reasoning has rooted in moral theory at the level of moral philosophy and on the other side in political theory. Recent developments both at the level of moral theory esp. in sector of moral philosophy and political theory led to a change in the method of moral reasoning expression in criminal law; as well as “moral reasoning” used to avoid moral content previously and be considered impossible in practice , now on is viewed vital toward moral content; as a matter of the fact that criminalization only is possible through this way. The result of the moral reasoning definition regarding the new approach is called punitiveness in punishment enforcement law; and make a new relationship between punitiveness and moral reasoning meaningfully. In the meantime, Sharia- oriented approaches like jurisprudence requires more affinity with moral reasoning therefore it can be established a deep discourse between the jurisprudential reasoning and moral one o the basis of new account.