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

The nature of a contract is constructional and it is set by the human will, making it distinguishable from social and experimental realities that are formed in the real world. the question here is the extent of the connection between contract and reality. Is it a pure function of reality? Furthermore, we’ll explore the existence and continuation of a contract and how it is affected by external realities in Kant’s volitional school of thought. How effective is the role of the human will in the conclusion of a contract? What are the consequences of pure voluntarism? From the point of view of voluntarists, the contract takes priority rather than reality, and the point of origin for contracts is the human will, and socio-experimental reality cannot be considered the basis of a contract. Equity and the La-Haraj rule are not applicable in this school of thought. In addition to maintaining the integrity of the contract and ensuring its survival under any circumstances and in any location, Pure voluntarism exposes the solidity and Jamud present in contracts. In this school of thought, the lifecycle of the contract is a pure function of the will of its contractors and the human willretains its creative power and is not considered an instrumental aspect. According to this school of thought, this is where the benefits of the power of reasoning and human will prove important, and the principle of voluntarism plays an infrastructural role in the conclusion of a contract. The transactional relationship between the parties requires an adjustment of the pure voluntarism school of thought, to account for socio-experimental reality as well. Moderate positivism claims that a contract is influenced by reality, which adjusts the pure voluntarism school of thought in contracts.

Credits and realities are two different entities, and a person deals with them advertently or inadvertently in their lifetime. Experimental reality or social reality, both of which exist in the external world and virtual things such as contracts, are brought into effect by the human will. From the point of view of realist thinkers, virtual things have a basis in reality and human will plays an instrumental role. The question is: what are the practical implications of this relationship between contract and reality and what are the advantages and disadvantages of this school of thought? The philosophical realism approach sees a contract as directly dependent on reality and weakens the integrity of the contract. The consequences of such an approach will come into effect during the conclusion and execution of the contract. such a result is unacceptable by the human will and the standards of existing contact legal systems. To avoid this decadence, centrist positivism is a better substitute. This approach finds the human will as the basis of the contract and believes that the prolonged existence of the contract is dependent on the initiative will of the contractors, but it does not factor out the role of external reality. Reality is a moderating factor but it does not constitute the whole of a contract and affects the status of the contract without the involvement of the contractors. according to this approach, the contract is affected by reality, but it is not entirely dependent on reality.

The use of the words "Author", "Creator" and "Creation" under the definition of "Work" in Article 1 of the Law on Protection of the Rights of Authors, Writers and Artists (1348) indicates that the existence of the element of creation in works is required in order to protect them. This issue poses a serious challenge to the protection of factual works. Factual works are works that include compilation and narration of facts, photographs, and geographical maps that describe facts or aspects of the world in which we live, e.g.  data and information about the world that are discovered and are not the result of the act of creation. Due to their extensive composition of factual material of the public domain, as well as the requirements for accurate narration of facts in some instances, such as biographies and histories, these works face significant uncertainty in distinguishing between "Fact" and "Factual Expression". The present study by using a descriptive-analytic method in examining the legal status of factual works and a comparative study of achieving originality in different types of these works in American law, due to their different nature, seeks to express the status of this issue in Iranian law and concludes that Iranian law has failed to recognize the distinctive nature of these works.

Law has a constructed nature; the one which is distinguished from socio-empirical reality. Nevertheless, one can believe in dualism of contructionality and reality providing constructionality is independently thought to be different from reality and each of which has its distinct area. Furthermore, contract has a constructed nature. The question is whether there is an insist on its separation from reality; or what kind of effects would be followed by this independence? As long as this independence resulted in dominancy of contractual constructionality over reality, would it necessarily eventuate to have a fair contract? What are the challenges of pure dependency of contractual constructionality from reality? On the basis of this dependency, can one believe in the transformational and evolutionary function of law, particularly the contract? Denying both dominancy and pure dependency approaches, it sounds in all likelihood that it is the one and only way to keep the supremacy of will principle beside the principle of equity or the principle of the denial of distress and constriction; moreover, we should just emphasize how influenced the contractual constitutionality could be by the reality.

There is no doubt that the paradigm of modernity is based on the idea of progress and not compatible with stoicism. However, there is no unanimity on the notion of progress, on its linear nature or its cyclic behavior. The plurality of legal contexts is sign of legal panjurism and the interpretation as the will of meaning is sign of judgmental panjurism. This is a crisis factor in the aim of legal modernity. The explanation of this content is not possible without explaining the nature and meaning of the notion of progress and the nature of modern law; because this is ambiguous in the concept of "progress" and its nature in the discourse of modern law. This research is based on duality of the fields of cognition and norm in the discourse of modernity to present a clear sign of progress and its relationship with modern law.

There is no doubt that the economic analysis of the law is realistic. The question, however, is whether or not this realism is in conflict with the fundamentalism of legal modernity? If realism, considers interpretation as the will of a concept, economic analysis of law as a theoretical framework for the interpretation of the legal rule, leads to the negation of fundamentalism and to the acceptance of pluralism in validity of the legal rule; as substantial and formal formalism will not be valid. These results denoted the paradigm of legal postmodernity, as a pluralistic one. However, it seems, if that fundamentalism is manifested in spontaneous value, it is a symbol of the interaction of reality and metaphysic. Thus, the economic analysis of the law, based on this type of fundamentalism, is only the resurgence of the modernity as the spontaneous order. Consequently, the interpretation will also be confined to the discovery of meaning, so that information has not fallen in the demise of pluralism. Because the acquisition of economic information requires a minimum of this formalism, the validity of this method of interpretation means the validity of formal formalism.

Public beliefs, values ​​and attitudes as a complete form and as a set of meaningful elements constitute the central sector and the essence of the culture of society. This system is structured and institutionalized due to its social validation at three micro, intermediate and macro levels in an interconnected way. These three semantic subsytems lie in the community-wide culture as the main umbrella of the social system deployment. Accordingly, fiqh and law creat a social world (both subjective and objective). By focusing on the mutual and dialectical relationship between these elements, the present research attempts, in its limited scope, to compare the relation between fiqh and law (the legal explanation of fiqh) as a set of social rules that guide the conduct of bodily part actions (and indirect internal actions) of the individual on the one hand, and social practices, institutional interactions, will be analyzed on the other hand. The embodiment of Islamic jurisprudence and law through accepted normative beliefs and values reciprocally are effective in the continualtion and endorsement of the normative values that depends on fiqh and law. Through the process of socialization in the community's mind and conscience of the members of society, they are internalized. Moreover, in the light of interactions between individuals intellectual exchanges, systems and institutional levels, they are part of their potent components, and in turn repeatedly and consistently through actions and contacts in various areas of daily life are reproduced from standard normative systems in Islamic society, based on fiqh and law (and a great deal of morality) strongly with these three of the semantic interactions. Therefore, this study use documentary, analytical method.

The Knowledge of Law from the Point of Philosophical Cognition In addition to the point that the term “Philosophies of Law” is more exact than the “Philosophy of Law” because of the totally different nature of subject matters thereof, such as sale of goods, marriage, tort, criminal, constitutional and international law, there is a more essential point in respect of the nature of “Law” itself. Is its matters, real ones and therefore that knowledge is a real science such as physics and at least philosophy. If it is, then the rules of cognition will be applicable and binding in law knowledge.

Fundamentals of legal rule is one of the major discourses of the philosophy of law، which has led to the formation of numerous intellectual schools in this field. The main query of the present research is that whether the two schools of “natural law” and “legal positivism” can interact with each other. Is the combination of “value” and “reality” possible in a legal system? What is the status of these factors in Iranian legal system? In other words، given the Islamic-value of our legal structure، has this system neglected the reality or are value and reality creating legal rules in a constructive interaction with each other? Answering these important questions requires studying the intellectual ideas different from those of all the Western thinkers. Finally، the present research concludes that in the West values still enjoy a major status، although it has tried to separate its legal principles from value principles. Besides، in the Iranian legal system، although an Islamic system and value-oriented، the values create legal rules in an effective interaction with realities.

Until the nineteenth century, natural law and its values (the divine will or empirical reason) were known as a basis for the rule of law. Therefore, a matter was known legal when it matched with the values (divine will or reason). But another approach in law developed in which the legal system was based on facts and the existences. So instead of orders and prohibitions of the natural law and its values, the question of existence and nonexistence “with the title of” positivism" or "prooforiented" was suggested. The spontaneous order of history and social conscience in framework of history school and sociology school of law were raised and presented as the basis of legal rules. But none of these schools could be the basis of its legal system's form. In addition to these two schools, the role of governments in creating legal rules in framework of governmental school has been introduced. The recent school is based on the assumption that while governments can be the basis of legal rules, they have power to create a legal system. But the problem is that governments may use law to meet their interests and intentions. The differently presented views in response to question of establishing legal rules shows that the facts alone cannot establish legal rules and besides them, the minimum content of natural law as an essential element of the legal system of rules should be accepted. In other words, both values and facts are essential to establish the legal system and the fact, minus the value, cannot be efficient in the legal system.

Legal fiction as a legal mechanism in various legal systems especially in formalist and inflexible legal systems is original subject of this article. in this article be analysed the nature and elements of legal fiction and its historical role in ancient Roman law system and common law with comparative study in iran legal system. Legal fiction as a legal mechanism in various legal systems especially in formalist and inflexible legal systems is original subject of this article. in this article be analysed the nature and elements of legal fiction and its historical role in ancient Roman law system and common law with comparative study in iran legal system