جستجوی مقالات مرتبط با کلیدواژه "فرمالیسم" در نشریات گروه "فقه و حقوق"

Formalism and the consent principle have been open to discussion in law for a long time. When speaking about the principle of consensualism encountering with formalism in law, it is usually concluded that the principle of consensualism is ranked as first and formalism as the second. However, today after going through extremes in implementing these principles in western law, it seems that the confrontation of originality with formalism has been significantly reduced due to new forms and goals. Therefore, it can be said that these two are implemented in law proceed without breaching each other and in line with elevating the science of law in the field of legal practices. Today, the forms that bind legal practice have appeared unprecedentedly, all of which have reasonable and expedient goals; for instance, western law protects consumers against professional sellers in request to establish a legal relation between a skilled worker and an amateur individual in a written form containing the necessary information. Based on the descriptive-analytical method, this research concludes that the synchronicity of the consent principle and modern formalism, in contrast to Western law, in contemporary jurisprudence and Iranian law, has not been well received by scholars in this field. Additionally, the consensualism of legal acts against the new formalism is considered as a principle.

Legal formalism takes an inflexible approach in the field of criminal offenses by giving importance to the unquestioning acceptance of the law in the field of crimes and determining the punishment for criminals. In contrast to this approach, another type of criminal law has been proposed, which defends the role of various factors in the occurrence of crimes, such as: individual characteristics, environmental and social factors, and also giving importance to the role of interpretation of laws, the authority of the judge. and issuing judgments based on the status of criminals entered the arena under the title of realism. Therefore, the realism approach can be considered as a critique against formalism. The findings show that in response to the inefficiencies of this approach in determining punishment in criminal matters, legal realism has been proposed. Realism is a method to overcome the shortcomings of the law, its inflexibility, replacing community-oriented methods instead of prison and retribution, paying attention to the judge's creativity in cases where the law is not a solution, and also a more accurate application of crime and punishment. In domestic criminal laws, alternative punishment, considering justice and benevolence in determining punishment and crimes, and also assigning a role to the judge's creativity are solutions for using realism in the field of the criminal system. The present research method is also descriptive and analytical and using documentary and library sources.

Like any other legal system, the international legal system requires both recognizing and justifying legal rules therein. Formalist approaches have arisen in international law in order to identify legal rules from other legal inference based on formal logic and deductive argument. However, staying within the formalistic and formal frameworks of international law, as defined in formal sources such as treaties, custom, general principles of law, and some resolutions, is incompatible with the dynamics of this branch of law. Critical approaches to law have marked the failure of formalism in the emergence and justification of the rules of international law. Each of the formalist and critical approaches claims that their own method is right in identifying, explaining, justifying, and interpreting the rules of international law. The present article seeks to review and theoretically analyze the contribution of each of them in the logic of international law through reviewing and reflecting on the origin and methods of each of these two approaches in recognizing the rules of international law.

Contrary to what may seem at first glance, critical international law is not an international narrative of critical legal studies. However, critical legal studies (CLS), along with global critiques of liberalism, have made an effective contribution to the development of critical international legal theory. The present paper, with the purpose of explaining a broader concept of critical international law, seeks to show that any approach to international law, which by questioning and re-reading its belief system and procedures, seeks to policy window opening and show inconsistencies between the promises and the ends of international law and the existing reality of international relations, or in other words seeks to show the distance between the status quo and the desired state of the international legal order, and refers this inconsistency to the limitation of the structure or functioning of the international legal system, and provides agendas towards transformation or renewing the values, structure or function of this system, generally has a potential critical capacity. A review of the most prominent examples of critical approaches in the international law scholarship and the examination of their fundamental claims, along with expressing the most important criticisms, shows that the critical approach by emphasizing problem-raising rather than problem-solving and a redoubled attention to the role of international lawyers, offers a great potential for the gradual and progressive development of international law, and by confronting the depoliticization of international law, seeks to participate more actively in re-shaping the global legal order. From this perspective, the critical approach is an episteme towards hope, dynamism, and evolution.