https://law.tabrizu.ac.ir/ Jurisprudence and Islamic Law en daily 1 Tue, 09 Sep 2025 00:00:00 +0330 Tue, 09 Sep 2025 00:00:00 +0330 https://law.tabrizu.ac.ir/article_21021.html A substantial segment of Sharia rulings within the domain of legal obligations concerns prohibitions and forbidden acts, many of which are likewise proscribed by statutory law. Accordingly, elucidating the correlation and interaction between Sharia-based prohibitions and legislatively imposed bans is of significant jurisprudential and legal importance. The central research question is: when a transaction is concluded in contravention of either a Sharia injunction or a statutory prohibition, what legal consequences and enforceable remedies ensue? This study aims to comparatively assess the Sharia’s approach to muʿāmalāt manhiyya (prohibited transactions) and the legislature’s stance on prohibited and unlawful transactions, thereby clarifying the underlying rationale and objectives of each system. The findings indicate that the legislature, while drawing upon Islamic jurisprudential sources, primarily seeks to safeguard public order and may enact legal sanctions without direct precedent in classical fiqh. Regarding the ḥukm waḍʿī (legal effect) of prohibited transactions, there exist notable divergences between Imami jurisprudence and Iranian statutory law. The ḥukmtaklīfī (normative ruling) applicable to such transactions is classified into two categories: prohibition (ḥarām) and reprehensibility (makrūh). Conversely, the ḥukm waḍʿī is subdivided into five categories: nullity (buṭlān), lack of enforceability (‘adam al-nufūdh), voidability (qābil al-faskh), annulability (qābil al-ibṭāl), and non-opposability against third parties. This research adopts a descriptive–analytical and comparative methodology, relying on library-based sources, to examine both the normative and the legal effects of prohibited transactions in Imami jurisprudence and Iranian law. https://law.tabrizu.ac.ir/article_21022.html The right to water for detained individuals and prisoners, as persons under strict care and restrictions, is not only a fundamental need but also a human right that must be upheld to preserve human dignity and ensure their health, with violations thereof prevented. Recognizing the right to water as an independent right plays a pivotal role in adequately securing and guaranteeing this right. This article, based on a descriptive-analytical method, addresses the question of how the right to water for individuals deprived of liberty has been interpreted and guaranteed in the judgments of the European and Inter-American Courts of Human Rights. The study concludes that, given the lack of explicit recognition of this right in the European and American Conventions on Human Rights, these courts have not treated the right to water as an independent right but rather as an element of human dignity. Through various cases, such as “Vitkovskiy v. Ukraine” in the European Court of Human Rights and “Bissoon et al v. Trinidad and Tobago” in the Inter-American Court of Human Rights, violations of the water right have been recognized as violations of human dignity. To elaborate on access to safe and sufficient water, these courts have legally considered violations of this right as breaches of member states’ obligations to protect human dignity, as stipulated in Article 3 of the European Convention on Human Rights and Article 5(2) of the American Convention on Human Rights. However, in several instances, such as “Valašinasv. Lithuania” in the European Court of Human Rights, subsuming the right to water under other rights has resulted in the failure to establish a violation of Article 3 of the Convention, thereby undermining the effective guarantee of this right for prisoners. https://law.tabrizu.ac.ir/article_21023.html In maritime law, mortgages and maritime liens are considered to create a real right for the creditor on maritime property (mainly ships). This is while there is no legal provision in domestic law regarding the nature of the debt in a maritime mortgage and the basis of the maritime lien. In American law, the basis of maritime court jurisdiction is based on the theory of characterization of the ship, and in England, although this theory was initially fully accepted, it is now used solely as the basis of maritime lien. This study seeks to answer the reason for the introduction of the aforementioned objective rights in the Iranian maritime law. Although the implicit acceptance of the legal personality of the ship is seen in scattered articles of the maritime law approved in 1964, the theory of the legal personality of the ship has not been accepted in Iranian law. In this article, the basis and nature of maritime liens and mortgages are examined using a descriptive-analytical method, while examining the position of American and English law. By emphasizing the specific characteristics of ships and commercial shipping activities, an approach is presented to explain the provisions and principles of maritime liens and mortgages, thereby achieving up-to-date regulations regarding claims subject to maritime liens and mortgages, filing action in rem, and seizing a sister ship. https://law.tabrizu.ac.ir/article_21024.html Technology licensing agreements, as one of the most prominent manifestations of contracts in the realm of intellectual property law and the granting of exploitation rights to technical knowledge, are subjects of scrutiny and study. On the other hand, any contract may be breached by the parties involved. The theory of fundamental breach, which is of significant importance in many legal systems, explains which conduct constitutes a fundamental breach of the contract and provides specific remedies in the event of fundamental non-performance by either party. Since licensing agreements often fall under the category of commercial contracts with an international dimension, the authors of this paper examine the question of whether the theory of fundamental breach can be applied in such contracts. In this study, by analyzing international documents related to contract law, the fundamental breach is redefined, and through the description and analysis of cases that serve as examples of a breach in licensing agreements, we observe the application of the fundamental breach theory by adjudicating courts. https://law.tabrizu.ac.ir/article_21025.html One of the fundamental rights of individuals is the right to use a healthy environment as an inseparable part of the necessities of human life. However, the destruction and destruction of the environment by natural and legal persons, as well as natural disasters, has made the full use of this right difficult. In the present era, environmental protection has become a global challenge to the extent that the United Nations has listed environmental security as one of the seven factors of human security. Therefore, determining the indicators of environmental damage has become an important matter in the legal system of each country; therefore, in the legal systems of Iran and Turkey, the issue of compensation for environmental damage is foreseen in general and specific laws. Despite similarities in both legal systems, including in the method of compensation for damage, they also differ in many ways. In the Iranian legal system, the basis for compensation for damage is the theory of fault based on general laws, while in Turkey, the theory of no fault is explicitly foreseen in the environmental law of this country. In addition, there is more attention to the green economy as a suitable solution for sustainable development in Turkey. Citizens and non-governmental organizations also play a more active role as environmental advocates in Turkey. In this article, an attempt has been made to examine the principles of civil liability and its compensation methods in both systems, using an analytical and descriptive method, while expressing generalities such as reviewing legislative policies. https://law.tabrizu.ac.ir/article_21026.html Constitutionalism is one of the important concepts of legal science, especially in constitutional law. In this regard, this concept has been formed in many interpretations in legal thought. One of the types of this concept is populist constitutionalism, which has attracted the attention of legal researchers in the last decade. This article, using a descriptive-analytical method and relying on the most important sources regarding this concept and a Comparative study of the subject in different countries, seeks to answer the question of what populist constitutionalism is and what its characteristics are. The constitution has a different meaning for populists than its common meaning among jurists. Hence, some issues included in the constitutions, such as constitutional proceedings, elections, and an independent judiciary, are transformed in populist thought. Populist constitutionalism’s view of the constitution is instrumental. By relying on the concept of the people, they try to eliminate intermediary institutions such as representation and oppose ideas related to democracy. An attempt has also been made to determine the relationship of populist constitutionalism with close and bordering concepts such as political constitutionalism and popular constitutionalism. https://law.tabrizu.ac.ir/article_21027.html Ronald Dworkin’s and John Rawls’s theories of justice, despite their common grounding in the liberal tradition, provide two distinct accounts of the relationship between morality, law, and the constitution. Dworkin, through his theory of law as integrity, conceives the constitution as a living structure oriented toward the moral principles of justice, human dignity, and equality, to be interpreted in light of the best moral justification of the legal system as a whole. Rawls, by contrast, through his theory of justice as fairness and the notion of the basic structure, emphasizes the role of political institutions in realizing public reason and guaranteeing fundamental liberties in a pluralistic society. This article, adopting an analytical–comparative approach, offers a critical reassessment of the foundational works of both thinkers and examines their convergences and divergences with respect to constitutional interpretation. The findings indicate that, for Dworkin, constitutional interpretation is the continuation of individual moral agency and normative responsibility towards principles of justice, while for Rawls, the rational design of fair institutions constitutes the basis for achieving social justice. This conceptual tension opens new horizons for rethinking the foundations of public law, particularly regarding the legitimacy of public power, moral-oriented constitutional interpretation, and the constitution’s status as an instrument for realizing human dignity. Moreover, by focusing on Iranian constitutional law, the article demonstrates that applying these two theoretical frameworks in the local context can shed light on key issues such as freedom of assembly (Article 27), equality of citizens (Article 20), and supervisory authority of the Guardian Council (Article 99), thereby offering insights for enhancing the legitimacy and effectiveness of Iran’s constitutional order. https://law.tabrizu.ac.ir/article_21035.html Disclosure and identification of factors affecting the arbitrator's impartiality and independence are essential to ensure fair proceedings and prevent the annulment of the arbitrator's award. The obligation to disclose refers to the announcement of factors affecting the conflict of interest, and the obligation to discover, as a preamble to the obligation to disclose, means researching and searching for the existence of factors affecting the conflict of interest. Although achieving this goal requires the cooperation of all participants in the arbitration process, a study of the laws and procedures indicates that the scope of the obligation of the arbitrator and the parties to the dispute in this regard is not the same. This study, to determine the scope of commitment of each participant in the arbitration, has concluded, using an analytical method and using the teachings of comparative study and especially French judicial precedent, that while the arbitrator, due to the commitment to independence and impartiality, is obliged to try to discover and disclose the factors affecting the conflict of interest in general at all stages of the arbitration, the parties are only obliged to investigate to identify these factors at the stage of appointing the arbitrators and the initial deadline for challenge. This obligation is limited to examining publicly available information. https://law.tabrizu.ac.ir/article_20874.html Abstract A legal and jurisprudential ruling will only have validity if it is derived by following the principles of deduction. When researching the evidence to derive a ruling, the deducer may come across more than two pieces of Islamic evidence or legal articles that initially appear to contradict each other either broadly or specifically. Jurists and legal scholars pursue various, sometimes contradictory paths to reach a ruling in situations of conflict; these include cancellation, suspension, preference, choice, or attempts to find a resolution. The revolutionary approach regarding conflicts involving more than two pieces of evidence, whether textual or conceptual, is executable. Does this approach align with the principles method? Will derived rulings have validity without considering this approach? Can this approach specifically negate the validity of practical principles or alter the realm of conflict? Demonstrating the revolutionary approach provides a new and broad avenue for the deducer to confidently establish the validity of their ruling, getting closer to genuine rulings, and if rejected, assures the validity of alternative approaches. This method holds significance in the field of law, both due to jurisprudential rulings and by virtue of its intrinsic importance. In this research, we will analytically examine the revolutionary approach using the principles method and align it with general rules derived from remedial reports and rational principles through a library method. The revolutionary approach applies lexical rules and customary collection among reasons that are absolute general or specific, text and clearer or less clear, as well as preferred and less preferred, showcasing the precise relationship of conflicting evidence for issuing rulings. https://law.tabrizu.ac.ir/article_20875.html The rapid advancement of intellectual phenomena and their pervasive expansion have led to their intersection with other domains—including consumer rights. However, the inherently monopolistic and protectionist nature of intellectual property rights have challenged both established economic frameworks and consumer protection regimes. From a legal perspective, a nuanced understanding of the interplay between intellectual property doctrines and consumer rights is crucial for effective regulation, policy formulation, and economic governance in any society. Against this backdrop, the present study seeks to address a fundamental question: What role can consumers occupy within the intellectual property ecosystem? This article elucidates the conceptualization of the consumer within the framework of IP law while highlighting the ostensible discord between these two legal constructs. The tension arises from two competing propositions: (1) the promotion of innovation through exclusive rights allocation, and (2) the realization of economic efficiency by maximizing consumer welfare. The study demonstrates that, contrary to initial appearances, intellectual property rights are not inherently antithetical to consumer rights in the long term. Rather, the resultant monopoly is not absolute, and mechanisms such as the fair use doctrine, exhaustion of rights (first-sale doctrine), and compulsory licensing can substantially recalibrate the balance in favor of consumers. https://law.tabrizu.ac.ir/article_20876.html A contract may be terminated either by mutual agreement (mutual rescission) or unilaterally (termination) .Analyzing the legal effects of termination—particularly during the period between the conclusion and the termination of the contract—is of significant importance. In Iranian law, based on Islamic jurisprudential principles, termination is generally regarded as having a non-retroactive (prospective) effect. However, the findings of this study, conducted through a descriptive-analytical method and based on library research, suggest that in certain cases—such as contractual options (khiarāt) or revocable contracts (oqūd al-jā'iz)—the parties' mutual agreement may retroactively extend the effects of termination without equating it with nullity. In French law, the effects of termination can be either retroactive or non-retroactive. In bilateral contracts involving final performance, termination due to a fundamental breach may have retroactive effect. Conversely, in contracts involving continuous or successive performance, termination under the same conditions is typically prospective. Moreover, in cases such as agency agreements or open-ended continuous contracts, termination is usually applied without retroactive effect. https://law.tabrizu.ac.ir/article_20877.html In the constitutional theory, various concepts and doctrines about constitution have been developed. One of these concepts is the constitutional crisis. In every country possessing a constitutional legal system, there may arise particular political or legal circumstances in which the constitutional system becomes incapable of providing an adequate response or solution. This article, employing a descriptive–analytical method and relying on comparative study, seeks to address the question of what the notion of a constitutional crisis means and how such a crisis can be identified. In a constitutional crisis, the principles embodied in the constitution and the broader legal system of the state fail to resolve a serious conflict or dysfunction within the operation of government. Constitutional crises can take various forms and typologies, which are examined in this study. The concept of a constitutional crisis bears close relation to other notions such as constitutional erosion, constitutional rot, and the state of emergency, all of which are discussed comparatively in this article. Given the diversity of political and legal systems across the world, the manifestations of constitutional crises differ from one system to another. Therefore, this paper also explores several examples of such crises in various constitutional regimes https://law.tabrizu.ac.ir/article_21206.html The right of representation is part of an individual's political voting rights and one of the most important fundamental rights of the people in managing affairs and exercising sovereignty. The Constitution recognizes it as public participation in determining destiny and the right to be elected to represent the Assembly of Experts, and any citizen may run as a candidate within the framework of the law. The main duty of the Assembly of Experts is to identify, appoint, introduce, and remove the Leader. The legislator may set candidacy requirements in the exercise of legal governance, but these conditions must not conflict with constitutional principles. Supervision over the verification of qualifications is the responsibility of the Guardian Council, and no one should be deprived of the right to be elected without legal documentation and valid reason. The existence of vague general conditions and an unclear evidentiary method renders the nature of the right to be elected ambiguous, restricts candidates’ rights, and makes the assessment of qualifications inconsistent. This study, using a descriptive-analytical method and reference to sources, answers the question: “What are the criteria for the right to be elected and the bases for restrictions in the Assembly of Experts’ electoral system?” The findings show that by redefining and precisely articulating candidacy conditions, establishing clear indicators, and adopting a practical method for verifying qualifications grounded in the rights of the nation—and by relying on constitutional principles and the general policies on elections—ambiguities can be resolved. Recommendations related to judicial review of qualifications, candidate appeals, and responsible, public accountability can clarify the scope of the right to be elected and expand public participation in elections. https://law.tabrizu.ac.ir/article_21207.html Deceptive design in the digital space denotes a form of user interface design through which users are steered toward making decisions that do not necessarily correspond with their true intentions and may, in certain instances, result in detriment to their interests. Owing to the concealed and intricate nature of such design practices, these actions are frequently not regarded as constituting an explicit breach of existing legal provisions and, consequently, may fail to be legally classified as unlawful conduct or as violations of consumer protection law or competition law.With the expansion of academic inquiry and the increasing identification of concrete manifestations of this phenomenon—particularly since 2010—the concept of deceptive design has become embedded in scholarly discourse across disciplines such as computer science, psychology, and law. Concurrently, legislators in certain jurisdictions have undertaken measures aimed at the recognition and prohibition of such practices, especially within the regulatory frameworks of competition law and consumer protection law.Employing an analytical–descriptive methodology and a comparative approach grounded in library-based research, the present study examines the relevant legal regimes under European Union law and United States law and addresses the question of whether the prohibition of such practices can be discerned within the existing consumer protection and competition law framework of Iran. The findings of the study demonstrate that, notwithstanding the substantial impact of this phenomenon on consumer rights and competitive conditions, the current legal framework in Iran lacks the requisite adequacy to effectively confront it. Accordingly, the formulation and adoption of comprehensive, transparent, and technologically informed regulatory measures, accompanied by proportionate, effective, and deterrent enforcement mechanisms, are deemed necessary. https://law.tabrizu.ac.ir/article_21208.html Ownership of immovable property by foreign legal persons—particularly corporations—is regarded as one of the most controversial issues in private international law and in domestic legal systems. In the Iranian legal order, in view of the fundamental importance of safeguarding national security and protecting economic interests, the acquisition of immovable property by foreign legal entities is subject to strict limitations and conditions. Pursuant to Articles 1 and 5 of the Law on Immovable Property of Foreign Nationals adopted in 1931, foreign nationals are prohibited from owning agricultural land. Moreover, under Articles 1, 3, and 4 of the By-Law on the Acquisition of Property by Foreign Nationals in Iran adopted in 1949, ownership of residential and industrial properties is permitted only within a narrowly defined framework, subject to special conditions and the prior issuance of the necessary permits, and even then only to a limited extent.Although these restrictions may be justified as measures to prevent foreign economic influence, in practice they can create obstacles to attracting foreign investment through international companies. This study, with particular emphasis on the nationality of legal persons and its role in the regime governing the ownership of immovable property, examines the legal, security, and economic dimensions of the issue. It further adopts a comparative perspective by analyzing Turkish law, which, through a more balanced approach, has provided a legal framework facilitating the participation of foreign companies in property ownership. On this basis, the article proposes solutions for reforming the Iranian legislative structure in a manner that simultaneously ensures national security and promotes economic growth. https://law.tabrizu.ac.ir/article_21209.html The impartiality of judicial authorities is a fundamental principle of criminal procedure. One manifestation of this principle is the statutory recognition of grounds for judicial recusal. Article 421 of Iran’s Code of Criminal Procedure identifies a judge’s prior substantive opinion on a case as one such ground. However, Ruling No. 517 of the Iranian Supreme Court, which categorizes a judge’s preliminary opinions on a defendant’s prosecutability (e.g., during objections to a dismissal order or in resolving disputes between investigators and prosecutors) as procedural rather than substantive, raises significant legal questions. Is this ruling consistent with established legal norms? Can such opinions genuinely be characterized as non-substantive? Does judicial scarcity justify this interpretive approach? This study examines the conditions for recusal due to prior substantive opinions, analyzing their legal nature through a descriptive-analytical methodology. Comparative insights—particularly from U.S. federal law (28 U.S. Code §§ 47 and 455, which govern judicial disqualification)—enrich the analysis. Findings reveal that while both legal systems share commonalities, U.S. jurisprudence adopts a broader interpretation of recusal grounds, emphasizing impartiality as a decisive criterion. The U.S. framework encompasses additional scenarios where bias or partiality may arise, underscoring a more rigorous commitment to judicial neutrality. https://law.tabrizu.ac.ir/article_21210.html A crime as a behavior that disrupts public order is considered unforgivable, according to the rule, due to the superiority of its public dignity over its private dignity, unless the law stipulates otherwise. According to that rule and judicial procedure, fraud (and its related crimes) and thefts were among unforgivable crimes, which with the approval of two laws in 2020 and 2024 were first added to the realm of forgivable crimes based on the value of the proceeds of crime, but later returned to the number of unforgivable crimes. Irrespective of the causes of this expansion and contract hasty legal in the list of the forgivable crimes, its legal effects, when the crime is happen during the rule of the former law, and proceed during the rule of the later law, need to be investigated from aspects such as the amount of punishment, the manner of criminal prosecution, the inclusion of the passage of time and the problems and ambiguities that it creates in the judicial practice. The issue of the new law is either to intensify the punishment or to create more difficult conditions than before for the perpetrator, so it seems that it should be done in accordance with the ruling of Article 10 of the Islamic Penal Code. This article tries to briefly examine the issue of the new law, its legal effects and the temporal scope of the implementation of this law compared to the previous crimes. https://law.tabrizu.ac.ir/article_21291.html Comparative Analysis of the Position of Advisors in Juvenile Criminal Proceedings (A Study of Iranian and Afghanistan Law)Juvenile criminal proceedings, due to the developmental, psychological, and social characteristics of children and adolescents, require differentiated and specialized mechanisms. One of the most significant manifestations of such specialization is the inclusion of the counselor institution in juvenile criminal justice, whose primary mission is to bridge scientific data on the child’s personality with judicial decision-making. However, a review of legal systems indicates that the mere formal recognition of counselors, without granting their opinions effective legal influence, does not necessarily lead to the realization of child-centered justice.This study adopts a descriptive–analytical method and a functional comparative approach to examine the legal status of counselors and the legal effect of their opinions in juvenile criminal proceedings under Iranian and Afghan law. The basis of comparison is not limited to statutory texts, but rather focuses on the actual functioning of the counselor institution across three dimensions: the objectives of juvenile criminal justice, the institutional and procedural structure of proceedings, and the legal effect of counselors’ opinions on judicial decisions.The findings reveal that in Iranian law, despite the formal recognition of counselors and an emphasis on specialization, the advisory and non-binding nature of counselors’ opinions weakens their decision-shaping role, diminishes the effectiveness of personality files, and perpetuates a judge-centered model of juvenile justice. In contrast, Afghan law, by adopting a participatory and binding framework, integrates the counselor’s opinion into the formal judicial decision-making process, thereby achieving a model more closely aligned with child-centered justice. The study concludes by proposing reforms aimed at requiring explicit reference to counselors’ opinions in judgments, strengthening participatory juvenile proceedings, and enhancing the practical function of personality files. https://law.tabrizu.ac.ir/article_21292.html Partial invalidity of contracts, as a pivotal institution in contract law, seeks to maximize the preservation of the legal effects of agreements and prevent their complete nullification, particularly in legal systems rooted in Islamic jurisprudence. This study conducts a comparative analysis of the conditions for implementing partial invalidity of contracts in the legal systems of Iran and Iraq, elucidating its concept and examining the factors influencing the separation of defective from valid contract components. The research identifies two fundamental conditions for partial invalidity: first, the contract must be divisible in both material and legal terms; second, the invalid part must not be essential to the parties’ intentions. Drawing on legal sources, statutes of both countries, and doctrinal opinions, the study demonstrates that while both legal systems generally favor contract rectification and preservation of valid parts, differences exist in determining the role of parties’ intentions and the application of partial invalidity. Ultimately, the authors propose that explicit and systematic recognition of partial invalidity in legal frameworks is essential to enhance legal certainty and promote the stability of transactions. https://law.tabrizu.ac.ir/article_21293.html With the advancement of science—particularly computer technologies and electronic communications—the virtual space has expanded, and the concept of wealth creation in this realm has flourished. Today, many individuals regard interaction and ownership of assets in the virtual world or metaverse as equivalent to owning physical property. One of the most notable outcomes of these developments is the emergence of non-fungible tokens (NFTs) as unique digital assets, which have introduced new challenges concerning the concept of digital ownership. The existing legal frameworks, especially within the legal systems of Iran and the European Union, have not yet fully addressed these developments. This research seeks to answer two main questions: how the technical and legal structure of non-fungible tokens can be properly defined and classified within the legal systems of Iran and the European Union, and what legal mechanisms and frameworks can ensure legal security and the sustainable development of these assets. The hypothesis of the research is that current legal frameworks, due to their reliance on traditional concepts of tangible ownership, are unable to sufficiently recognize and protect digital asset ownership and thus require revision. In Iran, civil and property laws lack a clear definition of digital assets, while in the European Union, the absence of coordination among member states and the lack of a unified practical framework have prevented comprehensive legal protection for users and market participants. Adopting a comparative and analytical approach, this research examines the technical structure of NFTs and analyzes related regulations in Iran and the European Union to propose effective, transparent, and harmonized legal frameworks. The expected outcome is to establish a legal foundation for the sustainable development of NFT-related technologies, strengthen public trust, and enhance stability in the digital asset market.