The Restrictions of Public Freedom in Islamic and Secular Governmentsi
Ali
Bahadori Jahromi
دانش آموخته دکتری حقوق عمومی پردیس فارابی دانشگاه تهران
author
Ali
Fattahi Zafarqandi
دانشجوی دکتری حقوق عمومی دانشگاه تهران
author
text
article
2016
per
Public freedoms are, through a set of obligatory legal regulations, sought to guarantee the inherent body of human privileges which are considered as natural characteristics of mankind, and dealt with in some international legal documents and municipal law. In municipal law, while expressing the sanctions of rights and social freedoms, some restrictions are imposed on them. Referring to the international documents concerned to public rights and freedoms shows that there are two kinds of limits: respecting others freedom and public interests. There are some differences between Islamic and secular governments in this field which studied in the present article. Accordingly, at first, we review the concept of human rights and public freedoms, and then go on to prove the principle of the existence of restrictions on public freedoms in various governments. Subsequently, the freedoms of others and the public interests as tow main restrictions on the rights and public freedoms will be studied comparatively. It seems that there are no differences in the norms of the restriction of public freedoms between Islamic government and liberal governments, but the difference is in the definition of “freedom” and “public interests”, that is not a subject of legal science, and the legal systems based on the ruling values of governments, use those conceptions and definitions in order to create a legal obligation.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
3
v.
2
no.
2016
1
20
https://csiw.qom.ac.ir/article_1027_fe0f8b5559cdd160043a47ef8fce7c18.pdf
dx.doi.org/10.22091/csiw.2017.917.1051
Right to Citizenship, from Natural Situation to civil society
Mahnaz
bayat
null
author
Mahdi
Balavi
Assistant Professor in Law Faculty of Tehran University (Pardis Farabi)
author
Roghaye
Askarzade Mazra'e
کارشناس ارشد حقوق عمومی، دانشکده حقوق دانشگاه آزاد تهران مرکز
author
text
article
2016
per
Man is a rational-minded, autonomous and therefore valuable entity that is entitled to some privileges as human rights solely for the sake of human existence, not having any particular qualifications or privileged status. Human rights are extra constitutional, indisputable, unbreakable and non-transferable claim-rights and hence the role of governments in relation to them is a purely declarative role.Nevertheless, the need of humans to engage in constant engagement with each other in order to provide their own needs on the one hand, and the reality of successive conflicts in mutual relations, on the other hand, leads to the fact that survival of human beings will requiring the support of supreme political power. Accordingly, individuals, by disregarding some part of their natural rights under the constituent contract, establish civil society and create the state. The people who set up the state in this way are considered as citizens and enjoy certain civil and political rights within a particular territory. Therefore, from the standpoint of the human rights- justifying foundations that are also emphasized in our religious literature, citizenship itself is a fundamental right and besides that, it is a prerequisite for all human rights.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
3
v.
2
no.
2016
21
44
https://csiw.qom.ac.ir/article_964_ab06793d7b44fa127fbfeecd6f891601.pdf
dx.doi.org/10.22091/csiw.2017.1078.1066
The Purpose and Source of Interpretation in Islamic Jurisprudence; a Comparative Study by Pragmatic Interpretation
hosein
simaee sarraf
دانشیار گروه حقوق خصوصی دانشگاه شهید بهشتی
author
ebrahim
abdipour
دانشیار گروه حقوق خصوصی دانشگاه قم
author
javad
motamedi
qom universty/phd student
author
text
article
2016
per
Interpretive approach refers to the main ideas which construct the interpretive method of a judge or a jurist. We classify the interpretive approaches as intentional and functional attitudes. Feqh (Islamic jurisprudence) proceeds two purposes in interpretation; discovery of divine rules and integrity of interpretation. for these aims, Islamic jurists leads to the text and they are mostly textualist. However, sometimes the context helps the jurist to understand the hidden rules. In other hand, they attend to systemic interpretation, legal essentialism, sovereignty of legal principles and legal deduction. In contrast, pragmatic interpretation justifies the plural views, does not need to deduction and is anti-essentialist. this article tries to state these dimensions of the approaches and study the interpretation of Feqh in a methodological way. In that way, we define the meaning of approach. then introduce the characteristics of each approaches. The result is that, every approach has it’s own advantages and disadvantages. The jurist must choose the one which is more useful for his/her society.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
3
v.
2
no.
2016
45
70
https://csiw.qom.ac.ir/article_968_b97538571a46cd1c0bcc6d057df782c6.pdf
dx.doi.org/10.22091/csiw.2017.2176.1220
Comparative Study on Formalities of Volition in Unilateral Legal Act in Islamic and Western Law
Mohammad
Salehi Mazandarani
Associate Professor of Private law of Qom University
author
Hanieh
Zakerinia
PhD of Private Law of Qom University
author
text
article
2016
per
In Unilateral Legal Acts, only one party's volition is creative. As it is exceptional to seize the rights of others, the legislators need to inspect the perfection and influence of the volition. So they provide some formalities for Unilateral Legal Acts. But the most essential issue is “the effect of these formalities on determinant's volition”: whether they are terms to create Unilateral Legal Acts or terms to prove them. To answer this necessity in present article, a comparative study on all kinds of unilateral legal acts, in Iranian law, other Islamic countries law (especially Egypt) and also Western countries law (mostly French and English Law as the leading examples of the two legal systems: Romano-Germanic and Common Law), has been done. By an inductive and comparative research, we classify these formalities, according to the phase (time) of regarding the formalities: “in the process of volition to create” unilateral legal act, and, “before” or “after” that. We also make formalities of various unilateral legal acts classified and distinguished, by presenting their legal related provisions in internal and foreign laws.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
3
v.
2
no.
2016
71
98
https://csiw.qom.ac.ir/article_874_ab2a9a7a4931362f25a2231fcf30d4e1.pdf
dx.doi.org/10.22091/csiw.2017.614.1018
The nature, Conditions and Effects of the principle of military necessity in the legal system of Islam and International humanitarian law
Abbas Ali
azimi shoshtari
استادیارگروه حقوق پژوهشگاه علوم اسلامی امام صادق (ع)، قم
author
text
article
2016
per
Contradictory interpretations, which are sometimes contrary to the purposes of International humanitarian law, on the principle of military necessity and the existence of ambiguities in nature, conditions and effects of this principle in the law of armed conflicts, have resulted in repeated attacks on residential areas and nonmilitary objectives, especially in recent wars. This situation has made re-examination and disambiguation of the mentioned principle, in international regulations, necessary. One of the best methods to resolve this ambiguity can be through a comparative study with other systems, of them is the Islamic legal system. So, our main question is: "what are the approaches of the Islamic legal system and the law of armed conflicts to the nature, conditions and effects of the principle of military necessity?" Through descriptive research methods based on treaty provisions of the law of armed conflicts and the jurisprudence of international tribunals and the sources of Islamic law and combat performance of the holy Prophet (PBUH) and by using interpretive and comparative methods, we came to the conclusion that these two systems have much in common in this area, but there are differences in some cases, such as the need for the principle of discretion and limitations of referring to military necessity in legitimate wars and the legal effects of this principle
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
3
v.
2
no.
2016
99
122
https://csiw.qom.ac.ir/article_1010_0fba13409d36f13cc1a15498bbe128fb.pdf
dx.doi.org/10.22091/csiw.2018.1685.1144
Investigating the Relationship between Protection of Minorities And Regional Peace and Security in Islam and International Law
Mostafa
Fazaelei
دانشیار گروه حقوق بین الملل دانشگاه قم
author
Mousa
Karami
دانش آموخته کارشناسی ارشد حقوق بین الملل دانشگاه قم
author
text
article
2016
per
Maintenance of international peace and security seems to be impossible without having regional peace and security, which itself is dependent upon the stability and security in national societies. The historical upheavals demonstrate that the protection of minorities is essential for regional and international stability, peace and security, and discrimination against persons belonging to these groups, always has subjected internal stability and regional and international peace and security into serious danger. Both the principal philosophy of Tribute Contract in Islam and the instrumental aim of minorities' protection system are to prevent war and conflict between persons belonging to minorities and those of majority populations in the light of territorial integrity of the states, and consequently maintenance of regional and international peace and security. Therefore, due to securing peace and security, minorities should be protected and the enjoyment of these groups from their rights must be assured. The authors in this article believe that protection of minorities and guarantying their rights and resorting to pacific approach of Islam regarding the co-existence of different social groups, as a principal instrument for preventing the outbreak of ethnic conflicts, is of vital importance for the maintenance of regional peace and security..
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
3
v.
2
no.
2016
123
146
https://csiw.qom.ac.ir/article_801_d969d2f31f61a231c85c500e15694ce3.pdf
dx.doi.org/10.22091/csiw.2017.801
Legal Position of Propaganda In Use of Force against Governments; With Emphasis on Islamic Approach
gholamali
ghasemi
Deputy Director of Education, University of Qom
author
moslem
maleki
مشاوره حقوق بین الملل و ماهواره،تحلیل گر صدا و سیما
author
text
article
2016
per
The principle of "Prohibition of resorting to force" for maintaining and strengthening world peace, is the pivotal element in the international system based on the UN Charter. Following to prohibition of war and repetition of this rule in numerous international documents, the issue of propaganda prohibition for aggressive war was raised also in international law. With the occurrence of various international and domestic conflicts after the cold war especially in the West Asia and North Africa regions, the subject of propaganda for war has become more important. In this article, the propaganda prohibition of resorting to force in the system of sources of international law has been investigated and this prohibition especially with attention to affirmation of some treaties is clear and on this basis, governments shall not do this with the use of various tools including the media. Also in Islamic perspective, this subject in Quran and Sunnah has been evaluated. in this part, in addition to numerous Quranic and Hadith evidences, from the general principles that comprehended from these sources is used that also is necessity of the originality of peace and prohibition of beginning to war, prohibition of any propaganda for an aggressive war. Prophetic Method and Imam Ali's behavior in beginning to wars, is an important backing for this comprehension and is distinctive point and the positive approach of Islam in this realm.
Comparative Studies on Islamic and Western Law
Univerisity of Qom
2476-4213
3
v.
2
no.
2016
147
178
https://csiw.qom.ac.ir/article_967_7cab41e2d34763d681997e2d47cd4e58.pdf
dx.doi.org/10.22091/csiw.2017.1736.1151