mohsen esmaeili
Abstract
The Principle of Autonomy is the most fundamental rule in private law and has significant consequences such as contractual freedom and the possibility of creating new dealing patterns. Therefore this principle is of a great importance and has a long history in two legal systems of west and Islam. The ...
Read More
The Principle of Autonomy is the most fundamental rule in private law and has significant consequences such as contractual freedom and the possibility of creating new dealing patterns. Therefore this principle is of a great importance and has a long history in two legal systems of west and Islam. The principle of autonomy has origins in theoretical foundations and debates of philosophy of law in one side and specifically in the present time that the expansion of economic relations and special commercial needs has left no choice except for developing and rethinking in contractual patterns in national and international levels has numerous practical results and usages in the other. The reason of presentation of this principle in each of the two legal systems, foundations and consequences of tendency toward it, its primary theorists and historical background of consideration of the principle and its developments are three axises that has been studied in this article in two separate parts and comparatively; first in western legal system and then in Islamic one. One of the achievements of this study is proving the pioneership and chronological supersesion of tendency toward this principle and acceptance of its consequences in law of Islam. Furthermore, incorrectness of the opinion of some professors that have attributed the enactment of Art. 10 of Iranian Civil Code to "following the European legal theory" is appeared. Many centuries before turning of European lawyers and philosophers to the principle of autonomy, this theory had been expressed explicitly by most of the famous Imamiyah jurists.