جستجوی مقالات مرتبط با کلیدواژه « جمع گرایی » در نشریات گروه « فقه و حقوق »

Exclusionary rule has been accepted in different legal systems and has not been clearly accepted in Iranian legal system. this rule can be justified both on the basis of individualism thinking and in the idea of collectivism. In the first approach, the goal is to further protect the accused and guarantee his human and individual rights, in the second approach, the goal is to improve the quality of the trial and the performance of the judicial system. Studies show that the dominant approach in Iranian law, as well as in many other individualistic legal systems, has been the reason for the exclusionary rule. the changes that have taken place in the legal system have caused the ideological foundations of this rule to change and society to thinking be in the center of attention rather than the individual, which in turn raises the status of the judiciary and, in other words, increases legitimacy. This study was conducted with a comparative study in the USA and Iranian legal system and the result is the confirmation of the rise of both legal systems to collectivist thinking as the basis for identifying exclusionary rule and attention to social feedback on the performance of the judiciary.

The western schools have tried to explain "interest" based on human reason. Individualists who have put emphasis on individual interest have not adopted a fixed and stable approach to interest and the way that it should be provided. They are regularly in fluctuation between merely focusing on individual interest and paying relative attention to collective interest. There is disagreement among collectivists who attach importance to the public interest to justify the ways that it should be realized. In such approaches, interest is generally taken as material interest; and, since such approaches are consequentialist and without a priori norms and do not take into consideration the permanently changeable conditions, they are not stable as much as it is necessary, and have no fixed definition for interest and the way that it should be provided. Imami jurisprudence, however, enjoys stable standards to define and recognize interest and the ways that it is realized in the society. And though both public and individual interests are of importance, if there is some conflict, the public interest will be preferred.

The history of ideas demonstrates that political philosophy focuses on two individualist and collectivist meta-narratives. Statism, Hierarchical system of power and social discipline, belief in positive liberty, dogmatic commitment to traditions and customs, altruism and living in a simple life are the considerable features of collectivist viewpoints. Moreover, collectivism put considerable impacts on constitutions. The most concrete effect is that collectivist constitutions are usually striven for establishing a Utopia. Populist tendencies, charismatic leadership, and one-party or dominant party system are among the main effects of utopianism. Collectivism has some manipulating impacts on the structure of constitutions such as manipulated system of distribution of power instead of a safe system separation of powers, politicized judiciary and centralist attitudes in the administration of power. The main characteristics of the individualists are conviction in negative liberty, minimal tasks for the government in all areas especially with respect to ethics and considering the individual as an end in it. Individualism has laid doctrines that ultimately resulted in real constitutionalism.

Defining an act as a crime is a well-studied measure stemmed from collective reason, and needs some principles and rules.Generally speaking, in this regard four principles may be mentioned:the principle of loss (principle of benefit), paternalism, legal moralism,and legal perfectonism. Employment of these principles depends upon government's political and cultural ideas, and each one of them springs out from a proper political and cultural idea. Thus, to know each one of them, its grounds should be known. Politcal ideas governing the contemporary world may be classified under two titles: liberalism (individualism) and collectivism. In defining an act as a crime, individualism tends to the principle of loss and somewhat to paternalism.In addition to the two, collectivism tends to moralism and perfectionism as well. The difference in creating and employing these four principles between individualism and collectivism has its roots in their anthropological interpretations.Thus, in the present study, anthropology has been regarded as a foundation to define an act as a crime; and each and every interpretation of man influences formation of political ideas and in particular the rules and principles for defining an act as a crime.