law

Gender transition is one of the significant legal, ethical, and medical issues in the contemporary era, and its legal aspects are now also considered in light of human dignity. The present study, in light of the importance of this issue, aims to comparatively examine the views of advocates of gender transition in Iran and the UK from the perspective of human dignity. The question of the study, therefore, has been formed as: “What reasons have been presented for the acceptance of the issue of gender transition in the domestic laws of the two countries?” The present study has shown that the issue of gender transition has not been addressed independently and explicitly in Iran's laws; however, due to the connection between Islamic jurisprudence and law, referring to Islamic jurisprudential viewpoints is essential for examining opinions on gender transition. Additionally, approval of gender transition from the Islamic jurisprudential perspective can be achieved by relying on jurisprudential principles such as permissibility (ḥalāl), necessity (iḍṭirār), self-control (tasallut 'ala nafs), and by undergoing medical procedures. In the domestic laws, the issue of gender transition is only mentioned in paragraph 18 of Article 4 of the Family Protection Law of 1391 (2012), which reflects either the legislator's silence or the consideration of certain criteria for the acceptance of this phenomenon. In the UK, gender transition is considered a free choice for the individual, extending human dignity to include the individual's right to change their gender. In the laws passed in 2004 and 2010, the economic and social rights of these individuals are considered equal to those of other citizens. The human dignity of individuals who have undergone or seek gender transition in Iran is dependent on the approval of their need by medical and legal authorities, whereas in the UK, it is based on the individual's free will and is equal to the rights of other citizens.

The origin and foundation investigation of authority and validity of law on the one hand and explanation of the method of achieving legal provisions on the other hand are two fundamental issues in the philosophy of law that have always occupied the minds of legal theorists. Herbert Hart, in his book "The Concept of Law", as one of the most important works of legal philosophy in the twentieth century, with a serious approach to legal positivism, seeks to present a content analysis of the use of the concept of law in various social behaviors and the construction of such concept to create legal provisions and justify its authority on order to design a modern model in law. To reach the goal, the use of speech acts as one of the important elements in the field of discourse analysis and the acceptance of a kind of moderate skepticism are evident in his words and ideas. Considering the translation of his works into Persian version and the expansion and promotion of the aforementioned thoughts in Iranian scientific-legal communities without paying attention to its philosophical background nor considering its paradigmatic difference with Islamic thought, the study here, has aimed to analytically and comparatively examine Herbert Hart's thesis in two methodological and epistemological aspects with Islamic jurisprudential and fundamental thought, in order to clarify the identity contrast of law emerged from the two. The emergence of the modern law with a different identity comparing the former is indebted to specific philosophical foundations, and its development does not simply refer to a change in terminology and positions. It seems that confronting and standing firm against modern philosophical interpretations of the science of law and presenting traditional and indigenous interpretations arising from the transcendent jurisprudential thought can serve as a center of authority elevating the status of the legal system in general and Islamic law in particular. Here, descriptive and analytical methods and comparisons in a cross-paradigmatic situation between the paradigms of existence and language have been hired in order to identify the components of each of the two ideas, create discourse, and emerge a suitable context for philosophical criticism. The findings of the study have depicted that in terms of methodology, given the dominance of the language paradigm in the 20th century and its extension in Western philosophical thought, such as the branches of continental philosophy and analytic philosophy, Hart's positivist thought follows a single linguistic method in answering all questions of the legal system generally called Law, including issues regarding the origin, foundation, authority, obligation, and validity of law, and recognition of legal rules and their provisions. However, in indigenous Islamic thought, actually not all of the above questions can be answered with the same method. Rather, given the dominance of the existential paradigm over Islamic thought and the divine dominance with metaphysical perspective, can be analyzed and through a rational-philosophical method, and rest with a rational-conventional explanation will be responded. Epistemologically, Hart's Monolateral view of man and his social actions does not guarantee the permanence and survival of law, and the elevation of human knowledge in the light of divine grace, by connecting to the source of revelation, frees him from limitation and secures the immortality of law in the field related to nature. With the correct view of rational and customary public laws, in short, one can achieve fixed and unchangeable laws.

The main issue of the current research is to investigate the sociology of law in thoughts and views of Pierre Bourdieu, a contemporary French philosopher. The research method was analytical-critical which results in Bourdieu's criticism of the law should be understood as a full-fledged criticism of a certain type of political domination and control through the law. Bourdieu's theory never enables us to understand the ambiguous issues via the legal power versus legal pluralism, having arisen in contemporary societies as a result of the intersection of national, local and transnational orders (symbolic interactionism). On the other hand, Bourdieu's thought provides a perspective from which regards with the relationship between the symbolic, violence and law. From Bourdieu's point of view, the law is always a part of a specific social context that has consequences both for its perception and explanation. Bourdieu thoroughly analyzes law from a symbolic power, as opposed to an instrumentalist cultural capital. For him, this idea not only has a constructive meaning (the world creates the social, although this world first creates the law itself as the symbolic power), but also primarily has a specific political physical analogy; Because creating and ordering social reality makes it last. According to Bourdieu, the law can work effectively only to the extent that the symbolic power of legitimacy (naturalization) reproduces and increases power. As a result, the political function of symbolic legitimacy is placed on the cognitive or simply creative dimension that law is framework of society. Bourdieu's main goal in analyzing law is to show how cultural and social class are related. Ideology, in turn, is called a tool serving to hide social reality and thus analyzing how social structures and institutions perpetuate inequality and hierarchy among individuals and maintain a status quo. Therefore, ideology is equal with symbolic violence including the capacity of a social and institutional power to impose legitimate concepts, as if the power relations implied the aforementioned power ingrain deeply as the symbolic power. Therefore, the law is the basic element of political domination and its nature is inevitably forceful and domineering.

The aim of the current study is to investigate the reasoning of the language of jurisprudence and law. In this regard, the validity of jurisprudence and legal propositions has been critically discussed; the issue whether or not the inclusion of jurisprudenceand law to credit perceptions and status and contractual themes leaves a room for knowledgeable, truthful and falsifiable linguistic statements. Then the possibility of making a logical argument and writing an inferential analogy in the field of jurisprudence and law has also been analyzed. The results depict that, although credit, contract, composition and settlement are the basis of rulings, laws and legal concepts, following such creditability, sharia and rational establishing, esp. in the rational and canonical condition, make credit facts exist. Therefore, in a way, these credits are considered real matters, Linguistic statements are true and falsifiable about real matters. Therefore, announcements and statements about credits are also true and false. As a result, rulings, laws and legal concepts might be true and falsifiable. Descriptive and statements in the field of jurisprudence and law are semantic and meaningful. It has the value of truth that its truth and falsity are certain and recognizable. Every legal system provides a "reality" about facts presented, and the truth and falsity of those propositions are subject to conformity with the reality of that legal system. In jurisprudential statement where a mandatory or conditional ruling and the validity and fakeness of Sharia is attributed to Islam and Sharia, what Sharia evidence is established on it, including the provisions and requirements of ijtihad evidence such as circumstantial evidence or presumption and valid suspicion (speculation). It also concludes jurisprudential evidence such as practical principles. According to the relevant evidence, the truth of the jurisprudential statement is verified. In fiqh (jurisprudence), there are different types of reasoning; some arguments focus on topics, and some on the rulings of those topics. Some are to reach the basic rules and some are to solve jurisprudential problems and issues. Arguments used in jurisprudence and principles include the following: Arguments which are based on manifestation and understanding the meaning of verbal evidence or based on the analysis of customary and rational concentrations, or inferential analogy and logical reasoning not based on rational manifestation and concentration. On the other side, there are some Arguments based on manifestation and receiving verbal proof or manifestation of Verses and Hadiths in jurisprudence and principles sometimes with a minor aspect, besides it is used to solve the problem of pride in jurisprudence and principles. Arguments based on customary and rational concepts are used in the two fields of thematic and ruling fields, in other words, minor and majors in the field of fundamental jurisprudence. Logical reasoning and rational inference with no relying on verbal expression and analysis of rational concentrations and ways are used both in the principles of jurisprudence, reaching at a general ruling. Inferential analogy and logical reasoning which are both the logical form of all jurisprudential and principled arguments. Therefore, jurisprudence and law are knowledge that relies on all kindsof arguments. Legal, juridical and jurisprudential arguments are derived from the manifestation of laws, sources of religion and rulings, whereas the analysis of customary and rational concentrations. The language of jurisprudence and law is prone to authoring analogies, inferences and logical reasoning.

Law is a category and a concept that has a long history in Western thought, and from the ancient Greek period to the modern period, under the intellectual-cultural developments in the Western world, it has always maintained its importance and centrality. In this study, the aim of the study is to examine the concept of law from the perspective of the moral views of Immanuel Kant and Hans Kelsen.

The concept of law is as old as the history of human thought. Law has been presented in two meanings in the intellectual heritage of mankind, one as an unchanging order related to the nature of things, the other as a criterion for organizing human life. Kant and Kelsen, as the greatest philosophers in modern ethics and thought in the West, have drawn the concept of modern law better than anyone else under this relationship of subjectivism with the world. In Kant's moral view, practical reason determines the will with its subjective law, and therefore this reason is self-determining and self-legislating, and this self-determination is the concept of freedom in modern thinking. But from Hans Kelsen's moral point of view, based on the school of positivism, affirmative laws are laws that governments pass and are different from the moral principles of the natural law school, which are considered permanent and even have divine origins according to some theories. This perception of the law is completely different from the common concept of the legal society today, and its opening is important in understanding the relationship between man and modern law, especially in determining the position of the law in a field of religious thought.

This article was written with the aim of investigating the validity and obligation of law according to the relationship between Law and morality in Aquinas and Hart's thought. In this article, information was collected by library method and analyzed by content analysis method. The results indicated that in Aquinas's thought, moral validity is a necessary condition for legal validity. Therefore, any law that is unjust will not be valid and the moral duty of citizens is not to obey such a law. but Hart does not consider such a condition necessary for the legality of law. According to Hart, law and morality can be related in two ways: one is Transverse, which includes the acceptance of moral principles in the rule of recognition and compliance with the minimum content of the laws from an moral point of view. The other is the Inherent relationship, which was the observance of the formal justice of the law, which meant similar treatment with similar cases. Such an attitude is not incompatible with the principles of positivism because it is only a formal aspect. Based on this both Aquinas and Hart acknowledged the role of morality in law, however, there was a difference in the way they analyzed and viewed this issue, so that unlike Aquinas in Hart's view, the lack of moral validity does not lead to the invalidity of the law although it can be he called a law a bad law

Lacan's article Kant with Sade and his seminar on psychoanalytic ethics represent a novel and innovative contribution to ethical debates. As acknowledged by most interpreters and commentators of Lacanian psychoanalysis, Kant with Sade is considered one of Lacan's most complex and challenging writings in his book Écrits. Despite the often incomprehensible complexity of Lacan's text, the author of this research argues that in this groundbreaking article, Lacan introduces the idea that the philosophy of Marquis de Sade, particularly in his book Philosophy in the Bedroom, not only extends Kant's ethical ideas in Critique of Practical Reason, but in fact complements them. In this article, Lacan claims that Kant represents the law, while Sade represents desire. Kant seeks to establish a pure moral law that restrains the pathological or disordered desires of the subject, whereas Sade pursues pure desire, one that transgresses all laws and is free. However, Lacan’s main thesis is that the law is dependent on desire for its existence, and desire, in turn, relies on the law for its existence. In other words, law and desire share a symbiotic and reciprocal relationship—a relationship that constitutes and grounds the psychic life of the human subject. The subject emerges from the dialectical relationship between law and desire.

Monetary crimes are those crimes against the integrity of public and government property that cause disruptions in the country's economic and monetary system at the macro level and cause citizens to lose trust in banks and credit institutions and create conditions for the collapse of the economic system. Monetary crimes are inherently controversial as a moral corruption, but the conceptual and consequential reading of this phenomenon reveals it as an immoral act that affects other areas of morality in society. Therefore, the present study was conducted with the aim of investigating the moral-legal aspects of the crimes of disrupting the monetary system in Iranian law.

The necessity of reforming the economic structure in order to prevent the occurrence of monetary crimes should be considered in the economic policies of those in charge of criminal policy. Also, due to the lack of deterrence of some laws in monetary crimes, paying attention to and observing moral principles makes the criminal, by weighing the benefits and losses and the moral consequences of committing the crime, not to have the desire to commit the crime; Although the use of financial punishments, proportional to the financial gains of that crime, can be considered a suitable option; But it will lead to results such as confusion in the money market, increase in liquidity and inflation, bankruptcy, jeopardizing the security of people's deposits, waste and confiscation of deposits, and ultimately disruption in the country's economic system. Therefore, in the discussion of symmetry and compliance between law and morality, it is always necessary to fill the gap between the two by a relative distance in public and private.

Law as the Elemental Component of Rational Life in Mulla Sadra's PhilosophyLaw is one of the fundamental components in the realization of a rational life. The law is established in order to guide the individual or the society towards the realization of expediency or away from corruption. According to Mulla Sadra, God did not create the human race as a singular species, but rather, human beings have a social and civilized life. They have to participate and cooperate in their existence and survival. A partnership that is based on following a kind of tradition and law. Our emphasis in the current research is that what Mulla Sadra intended about the law, in general, is not compatible with Sharia; Rather, he has considered a more general meaning of the law. In this paper, in the light of the analysis of the general meaning of the law and using a logical-analytical method, we have reached findings such as an explanation of the dependence and connection of the law with the religion and public good of the people, clarification of the position of security by relying on the implementation of the law concerning social systems, and an analysis of the role of law in both the internal and external realm of man.The results reveal that the transcendental philosophy of Mulla Sadra has a suitable capacity for the establishment of rational life in society because the alignment of reason and religion in the context of the adherence of politics to Sharia will lead to the formation of social and individual norms.

Preserving the stability of the grand plan and laws governing human life, while meeting their variable needs, has always been a matter of interest to intellectuals. The complexities of elucidating these two aspects, especially in divine religions, have provided the groundwork for presenting various theories on this matter. One can explore such efforts made to present a comprehensive religious theory in the works and thoughts of ‘Allāmah Ṭabāṭabā’ī. He believes that divine laws have been formed based on human innate needs and therefore have fixed aspects. On the other hand, they also adapt to the daily needs of man, and in this respect, they consider the transformative aspect of material life. In this paper, through a descriptive-analytical method, while examining ‘Allāmah Ṭabāṭabā’ī's perspective on this issue, the foundations and consequences of his thought are reviewed. By inquiring briefly into the rival theories, the similarities and differences between them and ‘Allāmah’s views are highlighted.

The purpose of the current research is to investigate the theological account of nomos in the thought of Karl Schmidt, and its relationship with human identity. It has been depicted in which case the word nomos relates to human identity and why the new cosmopolitan thought is considered as a threat to the independent identity of societies and how to redefine the concept of nomos in order to help to preserve the conflicting political and social identity of individuals and societies. Through hiring a descriptive-analytical method, the key concepts of Schmidt's philosophy in the field of space, property, law and human existential identity were investigated, and finally the relationship between the concept of nomos and human existential identity was discussed. The results indicate that Schmitt expressed the restoration of borders to preserve the identity and political distinctions of individuals and societies as an essential issue, thus he aims to redefine the relationship between man and the earth in a theological expression, and because of that he surveyed the roots of the concept Nomos explaining the nature of Nomos in a relationship between earth and man. Nomus to be considered in connection with man, land and law, and removing any of these components, seems meaningless. Regarding the relationship between man and the earth, Schmidt based his thought in opposition to liberal globalization in order to preserve the borders between countries, and considered the preservation of borders equal to the preservation of the political and social identity of man.

As it is clear to everyone, the family is a social institution, and its meaning is not always the same in different societies and throughout human life. Social developments have changed. The family is composed of a group of people who are related to each other through blood, marriage, adoption, and live together for a long and specific period of time. The goals of forming a family include the absence of loneliness, peace, the fulfillment of sexual and instinctive needs in a controlled manner, affection and mercy, and mutual affection among the spouses, the continuation of the generation and the perfection of the man and the woman, and finally, the closeness of God. In all the legal systems of the East and the West for the family, including issues of marriage, legal laws according to their ideals and ideologies, but each of them has a place to ponder because every day we witness men's dissatisfaction with women and women with Men and parents are children and vice versa, which shows the illogicality and lack of firmness of family legal rules, which seems that more culturalization should be done in order to get closer to a balanced family, and men and women are selfless in fulfilling their duties and even Act beyond their duties. Nowadays, in the world regarding women's rights, they are influenced by the achievements of the Westerners regarding the equality of men and women, and this idea of the West has almost surrounded everywhere, even the communist world. Westerners are very proud of themselves in this matter, .

A non-responsibility clause is a type of contract in which it is agreed that the parties are exempted or their liability is reduced from possible moral responsibilities that may arise in the future. In this way, it can be said that the non-responsibility condition is a condition that is included in the text of the contract, and its purpose is to eliminate the responsibility that is faced by the obligor in case of non-performance of the contract or delay in its performance or incomplete performance of the contract. Therefore, the purpose of this research is to examine the ethical dimension of this condition in Iranian and international law, which was done with a descriptive analytical method with a library technique.

The non-responsibility clause is a clause that is included in the contract with the purpose of eliminating the contractual or non-contractual liability of one party for compensation. According to one opinion, the condition of non-responsibility is invalid. According to another opinion, the disclaimer clause is valid. Comparing the condition of non-liability in international law with Iranian law, considering its dimensions in the rights and moral obligations of the parties to the contract, in domestic and international treaties and their moral obligations, has been effective. If the condition of non-responsibility is fulfilled correctly, it eliminates the moral responsibility of the obligee, and the injured party can no longer claim damages from the causer of the damage. The non-responsibility condition is valid in the scope of contractual civil responsibilities that are caused by mistakes and errors.

The law is the reason and guide for human behavior; therefore, it is a normative social practice. But what conditions should a norm have to be called a law and what is its relationship with morality? Is the criterion of being a law, its origin or its content? In response, the school of natural law and legal positivism are two long-standing competing theories. The school of natural law, which is a recommendatory and prescriptive, emphasizes the content, but the positivism, which is descriptive and explanatory, emphasizes the source of the law. Of course, at first, the school of natural law looked for content in religion, but today, individual human rights as the subject and social contract as the process has noticed. The conceptual space of legal positivism is formed by the combination of two theses of social reality and separability, and the separation theory denies any conceptual and content relationship between law and morality. but, Dworkin, by criticizing the separation theory, divided positivism into two opposing camps, soft and hard, and the soft positivism abandoned the separation theory to some extent. But is soft legal positivism compatible with the claim of the authority of the law and its guiding function? Is discovered or invented morality an essential and existential part of the law or is it a criterion for its evaluation? In this article, the mentioned questions are analyzed in order to discover the position of hard and soft legal positivism.

Right in general meaning has a broad dimension and ethics is one of its most important and widely used aspects. Despite the importance of this type of right, it is also surrounded by ambiguities. Does moral right have an external existence at all? If it exists in the world, what is its origin? When rights and morals conflict, are rights or morals a priority? What is moral right? Can its conditions be revoked? On the one hand, the mind is busy with such questions, but on the other hand, among the existing works, except for a few, no work coherently deals with moral rights, therefore, there is a need for a brief introduction and the purpose of clearing ambiguities. Existing, concerning some general titles of moral rights, the issue should be examined case by case according to Hill Steiner and Allamah Tabatabai. The research method in this article is descriptive-analytical using text analysis. The findings show that even though both philosophers consider moral right as a real and existing right, there are noticeable differences between the two views in the discussion of "the structure of moral right". Hill Steiner considered the owner of the right to belong to the moral right, and if the owner of the right renounces his claim, the moral right is lost. But the vision of Allamah Tabatabai is completely different. In his eyes, the right is the same as the virtue, and in this case, belonging to the right is a moral act, and it will be impossible to take away the right.

What is presented in this article is the explanation and confirmation of three claims about the Knowledge of religion of Muslim philosophers: First. Muslim philosophers influenced by Plato and Aristotle have considered man as a social being. This means that man continues to live and survive in the form of presence in city, and the formation and survival of city requires law. But the law they introduce for the administration of city is not a human law, but a divine law, and that law is nothing but the divine religion. Therefore, according to Muslim philosophers, the nature of religion is the law. Second. Since Muslim philosophers have considered religion as a law, they have never questioned the existence of this law; That is, they have not asked what kind of existence religion as a law has in the outside world. Third. Although Muslim philosophers have expressed ontological points under the concept of religion as words and books and the like, they do not consider religion to be ontologically authentic. They have never had a coherent, codified and independent discussion about religion from the perspective of ontology. The basic question about religion, which has been neglected in Islamic thought and culture so far, is this: How does religion exist as an entity? The difference in approach regarding the existence of religion will cause a difference in the way of encountering religion and establishing a relationship with religion. Therefore, the ontology of religion is not just a theoretical discussion and it has many practical effects.

Plato’s doctrine of Ideas can be considered as the center of his philosophy. From Plato’s viewpoint, Ideas form the essence of sensible things. The Ideas are condition of both the existence of sensible things and their recognition. According to the problem he was facing, Natorp returned to Plato's ideas. Natorp's problem is the invalidation of philosophy and the baselessness of science. He tries to determine the relationship between philosophy and different sciences in order to give credit to philosophy and clarify the logic of governing sciences. To achieve the above two goals, Natorp takes help from Plato's ideas and presents a transcendental and epistemological interpretation of them. Because in his opinion, philosophy only as epistemology is valid. So, Natorp believes that Plato’s Ideas cannot be considered as fixed entities and separated from the sensible world, but they should be considered as transcendental conditions of the actualization of reality. Ideas are laws or explanations that are posited in thought in the first place and then the reality derived from their nature. Now, considering this introduction, some important issues arise: Do Plato's ideas have a purely epistemological function? What is the relationship between Natorp's law and Plato's ideas? This article, with a descriptive-analytical method, while examining Natorp's interpretation, tries to explain that Plato's ideas do not only have an epistemological function, but their ontological and moral aspects are also important.

The present paper investigates the necessity of the development of social life in the view of Mullā Ṣadrā and Ibn Miskawayh in the domain of religion’s response to human needs following a comparative approach. Mullā Ṣadrā believes that the necessity of fulfilling human needs warrants the existence of law and Shar‘ as well as an individual as a prophet. Following a philosophical approach, he explains that the concept of human species is realized in their “collective identity” outside their mind and in their social schematism. Ibn Miskawayh’s standpoint, which is worth more deliberation and is perhaps unique, indicates that man’s main need for collective life is due to the necessity of responding to their intrinsic need for mutual “love and affection”, while he refers to satisfying material needs at a later level. In his view, love provides the basis for life and formation of human collective society. Mullā Ṣadrā’s view enjoys a rational and philosophical essence, whereas Ibn Miskawayh’s explanation is merely based on the presence of love and affection among human beings. However, both thinkers acknowledge that the revealed religious theorems can respond to all human worldly and other-worldly needs. Nevertheless, none of them directly and clearly emphasizes the necessity of the purification of the soul for the prophet and the divine perfect Man.

Philosophy of law and that of politics are two close disciplines of knowledge which bear similarities in many issues. At first, one might ask whether they have any relation. If yes, what is it?Having adopted a descriptive-analytic method and library- reference, the author goes to study the relation between the two philosophies. Findings show that they share both in some principles and telos. There is a relation of generality and particularity in some respect between the issues of the two. Each of the two depends on another in some cases and makes use of its outcomes. Sometimes they have a common solution for some issues.

Abolhasan Ameri believes the goal of human life is to achieve happiness, which is the highest good and virtue, and ultimately the actualization of human’s faculty of rationality (speech) The only way to achieve happiness is to adhere to tradition, i.e. the personal, family, social and governmental rules. The government’s duty, in this regard, is to provide the situation for the growth and excellence of human beings, and to help them achieve their material and intellectual happiness, and ultimately to achieve the highest good, by carrying out the law in the community and impelling people to respect these regulations. Ameri believes, as I have proved in this article, the general honor, i.e. the Almighty God, legislates the general laws; and the just erudite ruler deduces the particular laws from these general rules, such that it is along God’s will. In addition, the main criterion, which should be regarded for the legislation of rules, is the nature of the rule’s subject, and the primary principle is to legislate a law in accordance with the nature of its subject, although this principle may be violated in cases where different criteria are in conflict. In addition, Ameri believes a law has four main characteristics: predictability, guarantee of implementation, being unique and dominant over everyone, including the ruler.