The Basis of The Taking of Property in Imamiyeh Jurisprudence, Iranian and British Law with Emphasis on Judicial Procedent

The protection of ownership is rooted in the foundations of the legal system, and its foundations are completely dependent on the ruling view of the ownership theory. At the same time, in any legal system, the individuals’ ownership may be invaded due to public needs. The problem is, what are the foundations of ownership protection? With what justification and basis can such protection be violated and denied? In Iran's jurisprudence, the protection of ownership is based on jurisprudential rules such as “Domination” and “Prohibition of the Detriment” or as a fundamental right. Expropriation was also justified in two western-jurisprudential schools of thought. On the one hand, the theories of public interest and necessity, which have a jurisprudential background, were raised, and on the other hand, the theory of public interest entered the legal discourse. In English law, the protection of ownership as a fundamental right is done through the rule of law and the principle of parliamentary sovereignty and the compliance of all actions with the law, and judicial supervision is its guarantee. Expropriation is also permissible if there is public interest, but the attitude towards public interest has different interpretations due to conceptual ambiguity. Nevertheless, the authors believe that the basis of expropriation is rooted in the legitimacy of the state. Such legitimacy at a minimal level is associated with the right to life of the government, so that expropriation is one of the basic tools of the government to continue its existence and provide public service. At the same time, the maximum level of legitimacy is rooted in the legitimacy of the political system from the people's point of view. From this point of view, in Iran, the divine-popular basis of sovereignty, which is the birth of the constitution, considers the basis of expropriation to be granted to the government through the people.