Shafizadeh khoulenjani, M., Shahabi, M., Tabatabaei, S.M.S.
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.
Mohammadinejad, O., Shahabi, M., Ahmadi, S.M.S., Shahi, M.
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".
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.
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.
Keyvani hafshejani, D., Shahabi, M., Tabatabaei, S.M.S.
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.
Momeni tezerji, E., Shahabi, M., Tabibi, M., Noroozi baghkameh, G.A.
مطالعات حقوق تطبیقی (1735496X)(1)pp. 403-421
This research, under the influence of a paradigmatic viewpoint in the philosophy of science, seeks to find the roots of paradigmatic legal historiography's constitutive elements. Thus, it offers a methodological discussion through which a researcher can have a better understanding of legal paradigms over time. A legal historiographer, by applying this method and by adopting different mental presuppositions about the law in different eras, would avoid the fatal error of assessing historical legal premises with the contemporary presuppositions. This procedure would place the historiographer in the very context they would intend to recognize. As a result, internal premises of law (principles, institutions, legal doctrines) would be placed and understood in direct relation with external assumptions of law (economic, political, religious, etc.) this process leads us to mix internal and external historiography which is another constituent of paradigmatic approach. Finally, this method would take the temporal discontinuity of law or jurisprudence into consideration and avoid legal evolutionists' negligence. They see legal history as a totality and apply their premises to its whole history.(Scientific research).
There is no doubt that in the field of personal status, including family law, legislator's will is the basis of the validity of legal norms in the Iranian legislative system. However, territory of family has never been secured against government intervention due to social and economic developments. The main question in this research is the analysis of this intervention and its credit effects. Thisintervention can be expressive and thus the law can be regarded as the only instrument for stating this regulation which hasderived from the will of legislator, but, sometimes the law is an instrument for creating a legal ruleand in this case that the relationship between the will of the legislator and the will of the government is of considerable importance and causes some challenges and questions. For example, what effect does the rule of necessity of registering permanent marriage have on marriage? Is the effect of this rule merely positive or should it be considered affirmative? Thisstudy attempts to analyze the four roles of state in the legislative system, namely select of a subject and,recognizingsecondary titles, choice of legal rules,supervision and ensuringand finally establishmentof rules apply to behavior between spouses, how their rules of family are conformed with the social facts and offering some solutions to overcome some of existing legal challenges in this field.
An attempt to realize the authority of the synthesis of law and economics and stepping into its epistemological realm require thinking of a remedy for and responding to barriers to the methodology of the realization of the economic analysis of law. many experts in the discourses of "economics" and "law” do not tolerate the entry of economics into the realm of other disciplines, such as law, and the analysis of law based on the theories and methods of another discipline, such as economics, as they believe that there is no homogeneity and relevance between the principles of a methodological domain; i.e. economics, and those of a subjective domain; i.e. law. In the present paper, authors on the one hand, adopt a moderate positivist approach by rejecting the pure positivism approach and simply rejecting "the law as it is" and emphasizing the concept of efficiency and the normative approach on the other hand and in response to this question that whether the incorporation of economic standards into the realm of property and contract law is as an acceptance of the heterogeneous theories and methods of economics? by explaining the role of one of the most fundamental concepts of economics; i.e. the concept of “resource scarcity”, in creating the concepts of "property" and "contract," the authors show that the entry of the necessary economic principles of this concept into the realm of property and contract does not mean the acceptance of the heterogeneous theories and methods of economics, but due to the unity of their cause with that of the two latter concepts, we can talk about the homogeneity of method and subject in the economic analysis of property and contract. Given aforementioned discussion, is it essential to apply economic rules in the realm of legal property and contract law? The answer is that if in the analysis of the above rules, the epistemic requirements of the fundamental link between economics and the law of ownership and contract are denied or forgotten, these rules will be alienated from their origin, and will more or less deviate from the path to achieve social interests. The epistemic requirements mean promoting the concept of efficacy; as a criterion for the validation of legal rules, and reducing the role of governments in limiting the principles of private property and contractual freedom.
It is certain that Perelman's concern is to go past the formal logic and analogical reasoning. However, his theoretical framework for this transition suffers from a vagueness that seems to be extended to the triad of fairness, rationality and acceptability of the judicial reasoning that Perelman emphasizes. Perelman’s emphasis on practical reason only and the fact that he seeks practical reason independently from theoretical reason have added to this vagueness. Perelman occasionally discusses the sociology of law in his works, and it seems that he is going to move away from analogical reasoning through sociology of law and its realism. Also, he sometimes underscores value judgments, the general principles of law, and the unwritten legal rules as the components of this value judgment. Do value judgments and general principles of law not imply acceptance of a type of natural law by Perelman? A type of natural law that can be considered as the theoretical framework of Perelman's Juridical Logic by denying the duality of theoretical reason and practical reason and, as a result, liberates this logic from the vagueness emanating from the pluralism of the social structure.
Law is essentially a social phenomenon and, therefore, in full association with other social sciences. To understand a legal rule must be interpreted and for interpretation we have to argue about that. Therefore, there are a strong relationship between reasoning, interpretation and law. Furthermore, the three categories of base, source and purpose of the legal statement are considered as the contributors to each legal system. The purpose of this study is to explore influence of ideology on different interpretations of same legal rule. We discuss problem, social justice and fairness in law, the origins of different sometimes conflicting rules in the same subjects. This can damage the realization of the order as one of the goals of the legal system. This phenomenon is explained as pluralism of legal argument, which is shaped by various factors including ideology as the most notable. The mutual relation between law and ideology in legal pluralism is controversial. It can be concluded that depending on what the ideology governing the mind of a legal practitioner is, his kind of argument in the interpretation of the legal rules will be equally different.
There is no doubt that the paradigm of modernity is based on the idea of progress and not compatible with stoicism. However, there is no unanimity on the notion of progress, on its linear nature or its cyclic behavior. The plurality of legal contexts is sign of legal panjurism and the interpretation as the will of meaning is sign of judgmental panjurism. This is a crisis factor in the aim of legal modernity. The explanation of this content is not possible without explaining the nature and meaning of the notion of progress and the nature of modern law; because this is ambiguous in the concept of "progress" and its nature in the discourse of modern law. This research is based on duality of the fields of cognition and norm in the discourse of modernity to present a clear sign of progress and its relationship with modern law.
The existence of antinomic currents within the paradigm of modern law, can lead to the crisis and passing that as well. Bruno Oppetit, considers the formation of European law, the elevation of the place of the custom being source, and the elevation of the role of the judges in the legal order, as influencing factors of the legal relativism. He believes that relativism or pluralism is at odds with modern law. However, the theoretical framework of the modern law of Oppetit is only the substantial legal positivism. In rejecting this theoretical framework and insisting on the fact that modern law must be explained, either in the context of metaphysical rationality or within the framework of spontaneous social rationality, this article aims to answer a this question: Are the factors set out by Bruno Oppetit is contradicted to modern law? Or have they come to the resurgence of this Law, after a period of dominance of legal positivism?
"Good morals" and "public order" should be regarded as the source of the rule of law and legal propositions so that they have not only a negative role, but also have a positive function. These two sources like other sources are affected by the basis of rules validity in legal system as far as pluralism in legal basis results in different types of "good morals" and "public order". Defining the type of hierarchical relationship between "public order" and "Good morals" also depend on the type of hierarchical relationship in the foundations of legal rules validity; so that we can say in Iranian legal system, "religious good morals" and "religious public order" have credit priority. The difference between "Good morals" and "public order" is not a kind of substantive one, but also is phasic. "Public order" is statutory and legal propositions derived from "good morals" are non- statutory. In other words, "Good morals" is a reminiscent of the duality of rights and the law.
There is no doubt that the economic analysis of the law is realistic. The question, however, is whether or not this realism is in conflict with the fundamentalism of legal modernity? If realism, considers interpretation as the will of a concept, economic analysis of law as a theoretical framework for the interpretation of the legal rule, leads to the negation of fundamentalism and to the acceptance of pluralism in validity of the legal rule; as substantial and formal formalism will not be valid. These results denoted the paradigm of legal postmodernity, as a pluralistic one. However, it seems, if that fundamentalism is manifested in spontaneous value, it is a symbol of the interaction of reality and metaphysic. Thus, the economic analysis of the law, based on this type of fundamentalism, is only the resurgence of the modernity as the spontaneous order. Consequently, the interpretation will also be confined to the discovery of meaning, so that information has not fallen in the demise of pluralism. Because the acquisition of economic information requires a minimum of this formalism, the validity of this method of interpretation means the validity of formal formalism.
Abstract The traditional or liberal theory of contract always had encounter serious critics. The authors of this article have criticized this theory- based on new theory of Unger (a pioneer in the Critical legal studies movement) - and also have analyzed the strengths and weaknesses of that. This theory consists of a principle and a counter principle that include freedom of contract against the society and freedom of contract against the justice and fairness. The main point of this theory is that the principle of freedom of contract is just a credit and thus we should not give it originality. The facts Such as General aspects of social life can limit and conflict with this credits. Thus to balance these matters, we should prefer the facts to the credits. Because the Critical legal studies movement is based on realism, we must consider a counter principle topics such as goodwill, justice and Fairness and Non loss against the principle of freedom of contract.
Monism on the basis of validity of essentials in Devine legal system which means it is just God who can be the foundation and origin of the indispensable legal code of practice, protect the Devine legal system from realism or practical rationality and also from predicates which is rooted in humanism metaphysics rationality and generally from adversary foundations and origins. On this understanding, intrinsic rationality, state’s determination and custom have not role, but origin of law. Accepting several basis as the meaning of legal pluralism, is the origin of imperativeness of legal basis. There is a change from monism to pluralism in Christian thought and it seems such change, has been established a basis for passing from Devine legal system to modern law loading to the development of natural theory in metaphysics of legal positivism from the source of legal role to foundations and origins of legal basis.
Iranian legal system has been established based on Imami Jurisprudence and its main sanction against violating the established rules on validity of contract is nullity. Moreover, there are other concepts such as relative nullity or null amendable in law, but not as a general rule of law. While Afghanistan's legal system, in addition to rules of null and ineffective sanctions, recognized and confirmed another general rule based on the Hanafi jurisprudence as "Fasîd" (Vitiation) that causes the Nullity in this legal system to have grades, and in cases whereby the contract is amenable, its nullification is prevented and the contractual relationship of parties continues. Such concept could also enter the Iranian legal system, not with all its consequences, however, as a rule and replacement to concepts of the specific.
The contract looks like the natural law. This means the negation of the principle of the autonomy of the will and the will of Legislator as a basis for the validity of contractual content would be rejected. Because the foundation of creation and validity of natural law would not be the will, but natural justice and natural equity. Therefore, the foundation of the validity for such a contract- similar to such a law- must be sought in justice and equity. Adopting such an approach, the principle of contractual justice and fairness- not the principle of the autonomy of the will or the principle of obligatory force of a contract- will be surface dominant. Such an approach could become more conductive to Iranian contract law. Neither could will of legislator nor the principle of the autonomy of the will be considered as the foundation of the validity of the contractual content in the Iranian legal system, all in order to deter the contract to be praised. It is God's will that determines the foundation of the validity of the contract and this will gives priority to the La Zarar and the negation of Hardship over other contractual principles.
Highlighting the driving cause and its strict relationship with the formal cause and especially the final cause in the intrinsic elements of natural justice has caused the duality of reason and natural justice in the thinking of the proponents of the reason as the source. Since the same emphasis makes the full understanding of the mechanisms of natural justice and its content for the human wisdom impossible. For this reason, one cannot speak of monism of reason and natural justice. Duality refers to God-based monism, at the foundation of the legal rule, as well as the inability to present a criterion for assessing the validity of the content of the legal system. Thus, the reason decreases to the reason as the source; a reason which is limited to the incomplete understanding of the natural rule and cannot create the rule of behavior.
