Mahdi Shahabi, Ph.D. ,
Associate Professor
Department Of LawFaculty Of Administrative Sciences And Economics
Address
University of Isfahan
Azadi square
Isfahan, Iran
Postal Code : 8174673441
Research Output
Articles
2024
Publication Date: 2024/04/20
مطالعات حقوق خصوصی (25885618)(1)pp. 41-64
Genes are implicated in the manifestation of not only physical traits but also behaviours, moods and mental illnesses. Genetic modification enables the alteration of an individual's characteristics. In addition, some diseases have a genetic origin that can be treated using this method.
Genetic engineering is classified into four principal categories: somatic gene therapy, somatic genetic enhancement, germline gene therapy, and germline genetic enhancement. The genetic alterations achieved through somatic gene therapy are confined to the individual undergoing the procedure and are not inherited by subsequent generations. In contrast, the consequences of germline gene therapy persist across multiple generations.
The ethical and legal challenges associated with human genetic modification are manifold, with informed consent being a particularly salient issue, particularly in the context of genetic modification of germ cells.
Genes are implicated in the manifestation of not only physical traits but also behaviours, moods and mental illnesses. Genetic modification enables the alteration of an individual's characteristics. In addition, some diseases have a genetic origin that can be treated using this method.
In this study, we employed an analytical-descriptive methodology to examine this challenge and the perspectives that have been put forth in relation to it.
Modern natural law posits reason as the foundation for legal and moral norms, leading to the term "rationalism." The objective of modern natural law or rationalism is to safeguard individual rights. The individual is regarded as the ultimate end, and the principles of individual freedom and the sovereignty of the will are considered to be of paramount importance. This perspective emphasises the importance of undertaking rational tasks in a manner that is guided by benevolent intentions, and posits that the realisation of perfection is contingent upon this approach. The physical and mental faculties serve as the instruments and preliminary steps in the accomplishment of these tasks. From the perspective of rationalism and Kant's thought, people have a moral obligation to pursue their own perfection and that of others. One proposed method for fulfilling this obligation is through genetic modification. However, several principles have been proposed in this thought which are considered to be the most important rational reasons for opposing human genetic modification. Genes are implicated in the manifestation of not only physical traits but also behaviours, moods and mental illnesses. Genetic modification enables the alteration of an individual's characteristics. In addition, some diseases have a genetic origin that can be treated using this method.
In this study, we employed an analytical-descriptive methodology to examine this challenge and the perspectives that have been put forth in relation to it.
The ethical and legal challenges associated with human genetic modification are particularly pertinent in the context of informed consent, particularly in relation to genetic modifications on germ cells.
The question thus arises as to whether an individual is entitled to make a decision to undergo genetic modification with a view to influencing the traits and characteristics of subsequent generations and thereby determining their future and life prospects in a positive or negative manner. This raises the question of whether the principle of informed consent presents an obstacle to human genetic modification. Alternatively, can it be accepted by reference to other rational principles of Kant's moral philosophy, including deontology and the concept of the human being as an end in themselves? What are the human duty and role in perfecting themselves and others on this basis? Is proxy consent accepted by Kant's rational view and can it replace the consent of the patient or a person who is created in the future or not? Given that the majority of objections to human genetic modification have a Kantian basis, is such an approach correct and complete? If this view is not correct, can a view in favour of genetic modification be inferred from Kant's thought?
The initial stage of the discussion centred on an examination of the fundamental principles, concepts and categories of informed consent. This was followed by an investigation into the constituent elements of the process of informed consent and the circumstances under which the principle of informed consent can be applied. In addition, the potential implications of this principle for the field of genetic modification were considered. Finally, this study analyses the effect of Kantian dutyism and the concept of the human being as an end in itself on genetic modification.
It seems that genetic modification does not necessarily mean violating the rights of individuals, and on the other hand, embryos or even germ cells do not have free will, which can be seen as an obstacle to genetic modification. Moreover, human beings have a duty to the happiness of others, and parents have a duty to their children. Although this duty is in conflict with the duty to respect individual autonomy and informed consent, the way out of the conflict is to emphasise the results orientation and to pay attention to the end of the human being, because there is no basis for preferring one of these two tasks over the other, and therefore Kant's thought is blocked in this respect. In this way, the treatment of diseases of genetic origin and the provision of a better life through the development of the individual's traits is the cause and introduction to other rational tasks, in other words, the positive results of genetic modification are preferable to the obstacle of lack of conscious consent. Acceptance of genetic modification and exit will result from this blockage and conflict, and therefore the duty to fulfil the duties of the parents is superior to the duty to respect the individual autonomy of the foetus, and in the meantime there is a difference in the therapeutic goal or the strengthening goal in germline methods or somatic in children will not be incompetent. Finally, according to Kant's view of duty, genetic modification of human embryos can be accepted.
Publication Date: 2024/06/21
مطالعات حقوق عمومی (24238120)(2)pp. 1091-1111
legal modernity as a value-oriented framework considered the concept of "right" as an abstract and metaphysical concept in the eighteenth century. At the same time, utilitarian theory welcomed the method of empirical observation in legal analysis, and considering the socio-economic functions of right emerged as an independent theory and have challenged how metaphysics interacts with reality. The present study seeks to investigate the relationship between metaphysics and reality and the nature of the concept of right from the perspective of utilitarianism theory. The principle of "achieving the greatest welfare for the greatest number" in utilitarian school of thought can challenge the concept of right drastically. It seems that utilitarianism authorizes sacrificing individuals and their interests (rights derived from the theory of modern natural law) as a necessity for greater happiness and welfare. Further investigation revealed that the theory rejects the subjectivism that exists in modern natural law; in other words, in examining the concept of right, it simply does not reflect the precedence of metaphysics over reality and, therefore, can be consistent with a typical impression of the concept of "right".
2023
Publication Date: 2023/06/22
مطالعات حقوق عمومی (24238120)(2)pp. 877-897
Emphasizing the Kuhnian theory of paradigms and applying a transcendental approach focused on the theoretical basis and theory-laden theory will result in a contextual understanding for law and legal propositions. Therefore, this study begins with addressing constitutive elements of Kuhn's doctrine and applying his method to law and legal propositions. By elaborating different ideas regarding the very concept of paradigm, we will conclude that what we mean by legal paradigm is neither a mental context, nor simply epistemological, anthropological, normative, and methodological foundations of the legislator which can be chosen arbitrarily. On the contrary, the legal Paradigm is an epistemological context that has a hidden, vivid, inclusive, influential, and harmonizing reality. Finally, and based on the notion of paradigm, we try to pursue the paradigmatic doctrine in Iranian civil law and specifically in legal contracts. This paper concludes that importing incommensurable modern west's presuppositions and propositions has led to a deficient paradigmatic shift in Iranian civil law and specifically concerning the legal contracts. It shows the sovereignty of two parallel (opponent and incommensurable) paradigms. Emphasizing the semantic system of the paradigm in Cohen's thought, and of course with a transcendental view, focused on theoretical foundations and with a theoretical tone, results in a contextual understanding of law and its propositions.
Publication Date: 2023/06/14
مطالعات حقوق خصوصی (25885618)(1)pp. 27-49
The scientific formulation of positive law is the basis of François Geny's thought. However, Geny is well aware that if the term "scientific" means extreme scientism of the late nineteenth century, it will result in a positive law that lacks a metaphysical element. However, Geny knows that man is not just matter; it is also the Espirit. Geny refers to a human being who is social, rational, and free, the human being who worries about where he came from, why he came, and where he is going, i.e., the same man that Maulana Jalaluddin Rumi also speaks of his inner voice. However, Geny does not want to fall into the trap of liberal metaphysics of modern natural law and conclude positive law based on the ideology of individualism and the liberal positive law of the family.
Thus, like the philosophers of law in the first half of the twentieth century, he seeks to pursue the interaction of metaphysics and reality as serious concerns. The natural, historical, intellectual, and ideal foundations of François Geny’s thought, which are inextricably linked, are the framework of the same interaction and result in the scientific formulation of positive Law. Real foundations are a set of facts that take precedence over the human mind and human will: physical nature, moral nature, human psychological construction, religious feelings, social and geographical environment situation, the economic situation, and the political or social forces in society The historical foundation does not mean merely some of the socio-historical foundations that potentially and indirectly influence the formation of the law of the present generation. Rather, it refers to norms that, in addition to being the product of the passage of time, manifest themselves as existing law and are responsible for guiding human behavior. The ideal foundation is based on experimental intuition which senses the heartbeat of a social organism and is aware of the mystery of the rules that guide the organism to its areas. Such intuition is related to pragmatism and, of course, should not be confused with Bergson's intuition, which is based on the opposition of intuition and action, and it is the intuition of reason which connects intuition to metaphysics rather than to reality.
Although the rational foundation is more important among these foundations, it does not mean that metaphysics takes precedence over reality; since this reason, on the one hand, is the sole discoverer of the principles derived from the nature of superior objects, and is not intended to replace such nature of objects, which is the basis of the validity of the norm. On the other hand, this intellect is influenced by natural and historical foundations. The empirical nature of intuition also does not negate its guiding role. This intuition is complementary to reason. However, Geny does not place this foundation at the top of its foundations so that experimental intuition does not pave the way for the passage of the nature of superior objects and spiritual intuition; it is an intuition that interacts with the nature of objects, and for Geny to be sure of this interaction, it attributes an experimental description to this intuition and considers it a complete and, of course, evolutionary experience.
Geny’s positive law of the family is based on these four foundations; the point is, however, that intuition of Geny may also result in the socialization of family law if it results in the principle of monogamy and leads to the relative liberation of man from position. In this way, one can critique Geny’s idea, arguing that the end of this evolution is uncertain and does not follow a definite linear path. It should not be forgotten, however, that spiritual intuition prevents this socialization from leading to full institutionalism; both the natural foundation and the historical foundation prevent this spiritual intuition from leading to liberalism and the transition from institution to private contract in the family law system. In any case, the foundations of Geny’s thought are inconsistent with his legalism, which is the result of state positivism.
Empirical intuition is also the basis of the ideal foundation, and such a framework neither sees the transition from institution to contract as its ideal in family law, nor does it conclude marriage that ignores the natural proposition of gender difference; the principle does not challenge the strength and continuity of the family, and at the same time, does not prevent the family system from evolving.
Thus, like the philosophers of law in the first half of the twentieth century, he seeks to pursue the interaction of metaphysics and reality as serious concerns. The natural, historical, intellectual, and ideal foundations of François Geny’s thought, which are inextricably linked, are the framework of the same interaction and result in the scientific formulation of positive Law. Real foundations are a set of facts that take precedence over the human mind and human will: physical nature, moral nature, human psychological construction, religious feelings, social and geographical environment situation, the economic situation, and the political or social forces in society The historical foundation does not mean merely some of the socio-historical foundations that potentially and indirectly influence the formation of the law of the present generation. Rather, it refers to norms that, in addition to being the product of the passage of time, manifest themselves as existing law and are responsible for guiding human behavior. The ideal foundation is based on experimental intuition which senses the heartbeat of a social organism and is aware of the mystery of the rules that guide the organism to its areas. Such intuition is related to pragmatism and, of course, should not be confused with Bergson's intuition, which is based on the opposition of intuition and action, and it is the intuition of reason which connects intuition to metaphysics rather than to reality.
Although the rational foundation is more important among these foundations, it does not mean that metaphysics takes precedence over reality; since this reason, on the one hand, is the sole discoverer of the principles derived from the nature of superior objects, and is not intended to replace such nature of objects, which is the basis of the validity of the norm. On the other hand, this intellect is influenced by natural and historical foundations. The empirical nature of intuition also does not negate its guiding role. This intuition is complementary to reason. However, Geny does not place this foundation at the top of its foundations so that experimental intuition does not pave the way for the passage of the nature of superior objects and spiritual intuition; it is an intuition that interacts with the nature of objects, and for Geny to be sure of this interaction, it attributes an experimental description to this intuition and considers it a complete and, of course, evolutionary experience.
Geny’s positive law of the family is based on these four foundations; the point is, however, that intuition of Geny may also result in the socialization of family law if it results in the principle of monogamy and leads to the relative liberation of man from position. In this way, one can critique Geny’s idea, arguing that the end of this evolution is uncertain and does not follow a definite linear path. It should not be forgotten, however, that spiritual intuition prevents this socialization from leading to full institutionalism; both the natural foundation and the historical foundation prevent this spiritual intuition from leading to liberalism and the transition from institution to private contract in the family law system. In any case, the foundations of Geny’s thought are inconsistent with his legalism, which is the result of state positivism.
Empirical intuition is also the basis of the ideal foundation, and such a framework neither sees the transition from institution to contract as its ideal in family law, nor does it conclude marriage that ignores the natural proposition of gender difference; the principle does not challenge the strength and continuity of the family, and at the same time, does not prevent the family system from evolving.
2022
Publication Date: 2022/03/21
مطالعات حقوق خصوصی (25885618)(1)pp. 105-126
Abstract
If a person purchases a commodity at a higher price than normal or sells it at a significantly lower price than normal as a result of a personal event, such as a spouse's illness, or of a public catastrophe, such as an earthquake or flood, this event can be said to impose the price on him. Under the Iranian law, the critical question is: what is the legal status of contracts based on imposing the price? To address this topic, the authors conducted a positive (descriptive) substantive analysis on laws and regulations, materials from Islamic legal treatises, and legal opinions. Also, following the economic approach used in this study, the authors examined the legal validity of contracts based on the imposition of prices on distressed and crisis-stricken persons from a positive-normative economic perspective. This positive-normative approach is founded on the theory of price and the concept of economic efficiency, respectively. It should be noted that since the history of the economic debate on this matter predominantly comes predominantly from the American literature, this article needs to be comparative.
In Iranian law, according to the predominant view of Shi’i Jurists, Article 206 of the Civil Code considers a transaction motivated by the party’s economic need to be valid. However, based on many pertinent articles, most notably Article 178 of the Maritime Law, some jurists have argued that this is an unfair transaction in which products or services are provided at excessive rates to, or at a lower price purchased from, the distressed party. Some held the contract to be voidable, some found it modifiable, and some considered it valid, though with an option for the distressed party to cancel it. However, based on the predominant view among Shi’i jurists and the express or implicit content of the pertinent rules of Iranian law, a contract motivated by a party’s economic need is valid unless it falls in the scope of the Maritime Law, the rule embodied in which cannot be extended to other contracts, or is deemed anti-competitive in the market, in which case it may be terminated by the Competition Council according to the paragraph 1 of Article 61 of the Law on the General Policies for the Implementation of Article 44 of the Islamic Republic's Constitution.
In the US law, section 2-302 of the Uniform Commercial Code, on which most states have based their respective laws directly or implicitly, a contract based on the imposition of an unconscionable price on the distressed party is deemed changeable. Moreover, contracts based on the imposition of prices on individuals affected by catastrophic disasters and crises, such as floods and earthquakes, can be altered and the imposer will face criminal sanctions and financial penalties . It should be emphasized though that using criteria such as unfairness or unconscionability for altering this sort of transactions may be challenged due to their vagueness and incapability to produce objective, well-structured standard.
It is also noteworthy that the rise or fall in the price of commodities or services in a widespread or uncommon emergency is reasonable from an economic standpoint, because such events, on the one hand, often impede the production, resulting in large supply reductions and, on the other, lead to dramatic rise in the consumer demand, particularly for certain products and services. According to the pricing mechanism, whenever a product's supply declines and its demand grows, its price will reach its maximum level. This price rise will encourage present and future manufacturers to expand their output, resulting in lower prices and increased consumer welfare. Furthermore, validating the discount sales of economically distressed parties may be an appropriate economic strategy in recessions. However, government interventions (by regulation) are often inefficient and ultimately detrimental to consumers and should thus be limited to cases when it is necessary for the maintenance of the market activity.
If a person purchases a commodity at a higher price than normal or sells it at a significantly lower price than normal as a result of a personal event, such as a spouse's illness, or of a public catastrophe, such as an earthquake or flood, this event can be said to impose the price on him. Under the Iranian law, the critical question is: what is the legal status of contracts based on imposing the price? To address this topic, the authors conducted a positive (descriptive) substantive analysis on laws and regulations, materials from Islamic legal treatises, and legal opinions. Also, following the economic approach used in this study, the authors examined the legal validity of contracts based on the imposition of prices on distressed and crisis-stricken persons from a positive-normative economic perspective. This positive-normative approach is founded on the theory of price and the concept of economic efficiency, respectively. It should be noted that since the history of the economic debate on this matter predominantly comes predominantly from the American literature, this article needs to be comparative.
In Iranian law, according to the predominant view of Shi’i Jurists, Article 206 of the Civil Code considers a transaction motivated by the party’s economic need to be valid. However, based on many pertinent articles, most notably Article 178 of the Maritime Law, some jurists have argued that this is an unfair transaction in which products or services are provided at excessive rates to, or at a lower price purchased from, the distressed party. Some held the contract to be voidable, some found it modifiable, and some considered it valid, though with an option for the distressed party to cancel it. However, based on the predominant view among Shi’i jurists and the express or implicit content of the pertinent rules of Iranian law, a contract motivated by a party’s economic need is valid unless it falls in the scope of the Maritime Law, the rule embodied in which cannot be extended to other contracts, or is deemed anti-competitive in the market, in which case it may be terminated by the Competition Council according to the paragraph 1 of Article 61 of the Law on the General Policies for the Implementation of Article 44 of the Islamic Republic's Constitution.
In the US law, section 2-302 of the Uniform Commercial Code, on which most states have based their respective laws directly or implicitly, a contract based on the imposition of an unconscionable price on the distressed party is deemed changeable. Moreover, contracts based on the imposition of prices on individuals affected by catastrophic disasters and crises, such as floods and earthquakes, can be altered and the imposer will face criminal sanctions and financial penalties . It should be emphasized though that using criteria such as unfairness or unconscionability for altering this sort of transactions may be challenged due to their vagueness and incapability to produce objective, well-structured standard.
It is also noteworthy that the rise or fall in the price of commodities or services in a widespread or uncommon emergency is reasonable from an economic standpoint, because such events, on the one hand, often impede the production, resulting in large supply reductions and, on the other, lead to dramatic rise in the consumer demand, particularly for certain products and services. According to the pricing mechanism, whenever a product's supply declines and its demand grows, its price will reach its maximum level. This price rise will encourage present and future manufacturers to expand their output, resulting in lower prices and increased consumer welfare. Furthermore, validating the discount sales of economically distressed parties may be an appropriate economic strategy in recessions. However, government interventions (by regulation) are often inefficient and ultimately detrimental to consumers and should thus be limited to cases when it is necessary for the maintenance of the market activity.