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

Today, one of the important issues that are raised in the domestic and international arena of governments is the issue of nationality, and every government tries to determine the nationality issues of its nationals by establishing specific rules. One of the things that can be effective in acquiring the nationality of a country is marriage which, depending on the conditions stipulated concerning it, can lead to either the granting or deprivation of nationality. In this regard, the Iranian legal system has distinguished between men and women and does not have the same view concerning them; while the Turkish legal system, does not recognize such a difference. This research, which is analytical and descriptive, has addressed the issue of nationality, the methods of its acquisition and the effect of marriage on the acquisition and loss of Iranian and Turkish nationality by either husband or wife.According to the statutory articles of these two countries governing the issue of nationality, it can be stated that in the Iranian legal system, the type of marriage and its legitimacy and legality can affect the national status of Iranian men and women and even in certain cases, may lead to deprivation of Iranian nationality from individuals, while the Turkish legal system adopts a different perspective on this matter. The Iranian legislator, while distinguishing between Iranian women and men who marry foreign nationals, has simultaneously accepted the principle of family unity and the principle of individual freedom. In such a way that, with regard to the Iranian woman, if she marries a foreign man whose national law imposes the husband’s nationality on the wife, then the principle of family unity is acknowledged. However, if an Iranian woman marries a foreign man whose national law does not impose the husband's nationality on the wife, then the principle of individual freedom is recognized. For a marriage that affects the nationality of the husband and wife to be valid, Article 1059 of the Civil Code must be observed. If a religious marriage has not been conducted between the man and woman, the nationality of individuals cannot be changed based on the marriage. In the Turkish legal system, merely marrying a Turkish citizen does not automatically grant Turkish citizenship to the individual. However, this person can acquire Turkish citizenship if legal conditions are met, without needing to apply for nationality and fulfilling the necessary requirements based on Article 11 of the Turkish nationality law. In other words, the accepted principle in this country regarding the relationship between husband and wife within the family is the principle of individual freedom and the non-necessity of the unity of nationality for husband and wife.

Consolidating judgment is an Islamic jurisprudential (Fiq'hi) institution to resolve the disputes between the conflicting parties which today appear in the legal laws under the title of "arbitration". Due to respect for the sovereignty of the will of the parties in choosing a judge or judges as arbitrators, it is expanding progressively and is popular with the people. The legitimacy of arbitration or consolidation is disputed among Islamic Madhāhib, that is, schools of thought within Fiqh or Islamic jurisprudence. Despite the well-known opinion, which trusts the legitimacy of this Fiq'hi (jurisprudential) and legal institution, a group has completely denied its legitimacy, and another group has considered its permissibility only during the presence of the Infallible Imams (PBUH), and others have considered it dependent on the absence of an Islamic government or the dearth of an appointed judge in the city or region. The most basic question is that the different points of view raised around this debate are based on what evidence, and to what extent are the implications of each of the evidence of Islamic schools of thought? In this paper, various theories proposed about the legitimacy of arbitration are examined and criticized and then, the renowned opinion of Islamic schools (the legitimacy of arbitration institution) has been accepted according to the conducts of the wise and lastly the hadīth narrated by Abu Basir and the other hadīths to prove the theory of legitimacy (such as the well-known hadīth of Abi Khadijeh and Maqbūla Umar ibn Hanzalah) and the reason for the obligation to fulfill the condition has been deliberated.

The aim of this research is to investigate the legitimacy of Iran's political system between leadership as a religious and religious concept and republicanism as a western and new concept derived from the system It is the western politics that has been reflected in the constitution after the Islamic revolution. so; The challenges and jurisprudential-legal contradictions of legitimizing governance based on jurisprudence and people's republic in the Islamic Republic of Iran are examined in this research. The results of this research show that if there is any ambiguity in the interpretation of the people's right to sovereignty, it is necessary to pay attention to the constitution as a system; First, the position of the people as the creator of political power and the system of the Islamic Republic of Iran and the constitution should be considered as the product of the nation's will. In this assumption, the system of the Islamic Republic of Iran, as a creation of the people, must always be subject to its creator, that is, the nation, and thus, the creator of political power inevitably has the right of full and sole sovereignty. Based on this, the constitution has recognized the single sovereignty and dual and limited sovereignty is fundamentally incompatible with the principle of people's right to self-determination. Although in recent years, the people's right to sovereignty has been ignored in practice and institutions such as the Guardian Council have taken steps to Islamize the laws and also hinder the people's forces in the decision-making process and access to key institutions, but the people's sovereignty with The interpretations in the constitution prevail.

In his social life, man is bound to be present in various organizations that have chosen managers to manage their affairs and dominate other people. Every manager issues orders and commands to run the organization under his command and obliges his subordinates to accept them. Since, according to the foundations of monotheism, commanding is inherently exclusive to God Almighty, and no one other than Him has the right to command others, and accepting orders from anyone other than Him is also prohibited; Also, since in Islamic governance, all aspects of management and governance must be formed based on Islamic principles, it is necessary to examine the legitimacy of the phenomenon of commanding and being commanded according to these principles. Based on the relationship that each person may have with the organization, at first glance, the legitimacy of commanding and being commanded can be caused by the provincial system, laws and regulations, and the employment contract. In this article, by using the descriptive and analytical method and using the revelation and library sources, each of these funds, its conditions and requirements, as well as the territory of proving legitimacy by it, have been examined.

With the tremendous advancements in the field of science and technology and the invention of new electronic technologies, the lifestyle of human society has also undergone a transformation. These changes have been evident in all areas, including the formation of contracts and legal agreements such as the marriage contract, which can now be concluded through modern methods of electronic contracting. Therefore, the legitimacy of modern methods of contracting marriage is of great importance from a jurisprudential and legal perspective. This issue has been examined in various sources, including existing documents and records in this field, as well as jurisprudential and legal texts of both Iran and Egypt. It can be said that from a jurisprudential and legal perspective, the specific terminology used in the marriage contract holds a special position in determining its legitimacy. This is because the intention and volition of the parties involved are expressed through words, rather than actions. However, if written or electronic correspondence is used in the process of contracting, the legitimacy of the contract may be subject to doubt. These key concepts, including legitimacy, methods, contracting, marriage, Iran, and Egypt, have been thoroughly examined and analyzed in the aforementioned sources

In democratic policymaking, the demands of citizens in Criminal Normalization are taken into consideration. The legitimacy of criminal measures is achieved through the identification of citizens and the protection of their freedoms. In a democratic system, citizens have the most democratic participation in the Criminal process. In this research, this question is answered in a descriptive-analytical way through library information in the light of the three principles of representation, citizenship rights, and limitation of power. What is the position of citizens' demands for a fair criminal policy that is maximally acceptable and to what extent should the will of the general public be taken into account? The result of the present study is that the principles of democracy in any society, in terms of the degree to which it is conceptualized, affect the type and manner of criminal policies. Democracy by providing citizens' satisfaction and providing democratic participation while influencing criminalization can provide the basis for a fair criminal response in society. Paying attention to the will of citizens in democratic policy-making causes criminal responses to be redefined in the light of the concepts of civil rights, and criminalization and Sentencing to be carried out following the culture and civilization of society. the findings in this study are positive this fact, That the coercive result of establishing the concepts of democracy in societies is not necessarily the establishment of humane criminal responses, and in some cases, policymakers deviate from democratic concepts to establish strict responses

Reasons such as an innate lack of hymen, instances of rape, engagement in heavy physical exercises, and past wrongdoings (accompanied by repentance) are factors contributing to the growing demand for hymenorrhaphy or hymenoplasty among girls. The legitimacy of such a surgical procedure hinges on the adherence of both the treatment seeker and the physician to valid jurisprudential principles. To validate such surgery, one approach is to consider the "intentions of Sharia" or the purposes, goals, and objectives of the Sharia legislator in formulating religious rulings. An examination of the written documents related to the physician's actions, the focal point of our research, and a commitment to religious texts, alongside the consideration of intentions like preserving lives, maintaining dignity, concealing flaws, and addressing counterarguments against the legitimacy of the physician's actions (citing concerns such as the prohibition of touching and looking at someone else's genitalia, as well as assisting in sinful acts such as cheating) allows us to justify the physician's actions within the framework of Sharia. This new perspective provides a means to address some of the pertinent issues surrounding this practice.

The main question is whether the agreement to change the organ subjects to qisas to a similar organ is legitimate and causes the right of qisas to be forfeited concerning the original organ? There has not been a comprehensive research research in this regard with an exception of a brief outline of some examples in the codified criminal law and jurisprudence texts. This article attempts to re-examine the issue by presenting new analysis while critically studying the existing views. According to the famous Imami view, this agreement is not permissible and the right of qisas remains with the termination of the agreed organ. Therefore, it is necessary to pay the dues of the similar organs that have been cut off.The reasons of the famous view are as follows: the non-realization of the originality, the irreconcilability of the blood issue, the principle of non-substitution, the non-inclusion of the rule of body integrity, and the inclusion of the obligation of qisas in the original place. Indeed, due to the invalidity of the said agreement, according to the famous view, the left hand exchange (i.e. the fall of revenge from the right hand) has not been realized and on the other hand, the same exchange (left hand) has also been cut off.According to the second view, agreeing to amputate a similar limb instead of the main limb causes the right of qisas to fall and turn it into ransom. In such cases, on the one hand, the victim is entitled to receive diya for his right hand, and on the other, due to the amputation of  criminal's left hand, he is required to pay diya. In fact, agreeing on left-handed qisas instead of right-handed qisas is like forgiving the victim of right-handed qisas in exchange for left-handed qisas. Of course, it should be maintained that victim with left-handed who agreed on qisas has abandoned right-handed qisas, not that he has turned it into diya since if his goal was to receive the diya for his right hand, he could demand it from the criminal, and there was no need for the agreed qisas of the left hand.According to the third point of view, in practice, there is an exchange between the place of qisas and its similar organ, and the similar organ replaces the retaliated organ, which will result in the fall of the victim's right of qisas. The evidence of the third view are the implied amnesty of the agreement, the possibility of a change in the organ's qisas and reference to the rules of harmlessness and exclusion.The present article, with a descriptive and analytical method, while critically examining the jurisprudential foundations of the mentioned viewpoints and giving a reasoned preference to the promise of deserving punishment as a result of the agreed qisas of the similar organ, believes that such agreements and compromises can be based on. He considered it to be correct and legitimate and considered its provisions to be enforceable. In this regard, while studying the sayings and proofs of the jurists, by presenting proofs beyond the documents that have been presented for the third point of view, this opinion has been strengthened, the proofs of the illegitimacy of the agreement on the same organ's reparations are also disputed.The pieces evidence of the selected point of view are as follows:Analyzing the issue based on the aspect of the right of qisasThe basic rule in law is that the authority is in the hands of the right holder, and transferability, revocation, compromise, pardon, and forgiveness are among its accessories. So, first of all, since revenge is a special right of the victim, then it must be possible to judge the legitimacy of such an agreement. Secondly, considering the fact that the tortfeasor, even for free, can waive his right, then as a priority, he will be able to waive his right of qisas by agreeing to the qisas of the similar organ. Thirdly, due to the personal nature of the right to qisas in crimes against the soul, it is not possible to execute qisas without demanding compensation from the victim. Therefore, ruling to invalidate the agreement and re-implementation of qisas is contrary to this Muslim rule.Analyzing the problem in terms of substantive similarityBased on numerous pieces of evidence, there is a balance between the interests and functions of similar organs; which can be cited in order to prove the legitimacy of the aforementioned agreement.Applying the verse of qisas; From the honorable verse "Write down against them, that the soul is in the soul and the eye is in the eye and..." (Ma'idah/45), which explains the law of execution of qisas due to the necessity of similarity, it can be used that the paired body parts that are opposite each other and the ruling of qisas. They are exported, regardless of the right and left, they are considered similar to each other.Habib Sajestani's narration from Imam Baqir (a.s.): "Regarding the rights of Muslims, where a person has a hand, the hand should be placed against the hand..."Homogenization of similar organs in the verse; The chapters on limb amputation are used in the works of jurists, whose view of similar limbs is almost likeness and ruling on punishment of left hand in case of lack of right hand, based on this basis.From the point of view of custom, the organs of the pair are considered similar, and characteristics such as right and left are not considered by custom.Problem analysis based on the philosophy of qisas; The main purpose of the law is to legislate qisas punishment, deterrence, providing security and life of the society and healing the wounded feelings of the victim and the society. It seems that both of the aforementioned goals can be achieved with the agreement of similar organs.Arrange rational purpose for agreement.First: It is possible that rational and valuable effects and benefits will be obtained from the said agreement. Secondly: It is possible that the motive of benevolence is also desired in the qisas of the similar organ.Requirement of No Harm and The Dar'e RulesThe verdict of non- qisas ultimately leads to the qisas of two life organs for one victim. Therefore, referring to the harmless rule, the fall of the right of qisas against the victim is explained.Also, the rule of Dar'e, also includes qisas, and with the qisas of a similar organ, the legitimacy of re-implementation of qisas is questioned, the fall of the right of qisas seems more appropriate.Legal evidencesAlthough the legislature of Iran has not explicitly commented on this matter, according to the articles 347, 361, 363 and 365 of the Islamic Penal Code, conciliation and agreeability of the right of qisas, in each of the stages of prosecution, proceedings and execution, has clearly accepted and considered the right of qisas to fall and the hypothesis of this article is confirmed.

The principle of universal jurisdiction is a powerful tool in the service of international criminal justice. The principle of universal jurisdiction, under which states have the right and sometimes the obligation to prosecute and punish perpetrators of international crimes regardless of the place of commission, nationality of the perpetrators and their victims, has undergone a profound transformation in various dimensions. With the emergence of transnational crimes, the need for revision on the basis of territorial and personal jurisdiction has emerged. The concept of the principle of universal criminal jurisdiction, according to which the national courts of a country can prosecute a crime that has not occurred within the territory of that country, is not the subject of an accused or a defendant, and has not committed a crime against the interests of that country, has evolved in different dimensions. Crimes such as slavery and slave trade, piracy, racism, hostage-taking and air raids have been among the universal jurisdictional norms referred to in the article of the Islamic Republic of Iran

Among supporters of natural rights, it is believed that government is necessary and natural, but limiting the sovereignty and power of this government is also essential. The Government has been natural and necessary in natural rights advocate” s idea, following this grand approach, it is essential to the restriction of the sovereignty and power of this government. In public law studies, authority differs from crude or pure power, and the institution of authority is fundamentally linked to legitimacy .The basis of such legitimacy is the early guidance of natural rights that transforms pure force into authority under conditions of legitimacy. The nature of authority has a nature of power that is attached to legitimacy and is called legitimate power. A great example of this authority within the realm of state is sovereignty, which is a tool in the hands of the government. A sovereignty that is bound, not as an absolute entity, but as a relative entity, despite its inherent and permanent characteristics, by natural rules as an absolute entity. The output of this article paper confirms the relativism of sovereignty and absoluteness to natural rules, thereby limiting sovereignty to absolute natural laws.

Although development in the contemporary century is a simple and comprehensive concept, theoretically, has different economic, social, cultural dimensions. The question is which of these dimensions are more related to public law and what are the components of this relationship? Governance is at the heart of public law and the center of political development simultaneously. Governance is a step-by-step issue that begins with the issue of the legitimacy of the political unit as the first common point of public law and development and continues to other principles of good governance. The crisis of legitimacy itself is one of the development strategies and public law helps to solve it through its instruments so a country gets the necessary stability to achieve other dimensions of development. In the next step, the concept of good governance is introduced as another common goal. The principles of good governance are not only political goal of development buy also they are legal principles at the same time, and the more the governance of a country has these principles, the richer the public law in that country is, and such a country has political development. What this study shows is that good governance is not only a presumption to economic and social development, but also It is a developmental goal that public law paves the way for through its tools.

Undoubtedly, International Court of Justice as the principal judicial organ of the United Nations and also one of the highest international forums with general subject-matter jurisdiction has had an important role in development of international law for decades. In spite of ICJ’s core role in the development of international law, the legitimacy of this contribution has always been contested by some scholars. It is obvious that ICJ is not and could not be a legislative body in international law, but through of its judicial capacity the ICJ has developed existing rules and clarified the vague customary rules. In this respect, the legitimacy of those decisions or practice has always been questioned. As this article argues, ICJ through its high position in the international dispute settlement system and also its justification capability, has obtained enough legitimacy of the development of international law and such legitimacy has been approved by international community.

Legitimacy is a vague and complicated concept in international legal system; Because of the complexity of the concept there will be a requirement to find out that how legitimacy in international law should be evaluated. Legitimacy needs a fixed framework to be evaluated in the context of the international law in order to help the system to be stable. Hence, to answer the question that what is the appropriate criterion to determine legitimacy, three paradigms have been designed. At the first, legitimacy is considered as acceptability among the peoples and also among Rule - making Institutions. As it is not completely compatible with the current international law and creates some difficulties in this context, thus, creation of a paradigm that is based on the international law values and also result – orientated will be the last resort. Accordingly, the hypothesis of this article is that legitimacy means compatibility with the values of the international society.

Most legal systems are hesitant to provide explanations for artificial intelligence. The research requested by the TURI committee of the European Union considers artificial intelligence, in fact, a vague concept that covers a heterogeneous, wide and evolving set of applications. In Iran, perhaps in the near future, the use of artificial intelligence in this aspect will be a concern for researchers. Therefore, this research studies the legitimacy of using artificial intelligence in judicial affairs. Most legal systems are hesitant to provide explanations for artificial intelligence. The research requested by the TURI committee of the European Union considers artificial intelligence, in fact, a vague concept that covers a heterogeneous, wide and evolving set of applications. In Iran, perhaps in the near future, the use of artificial intelligence in this aspect will be a concern for researchers. Therefore, this research studies the legitimacy of using artificial intelligence in judicial affairs.
This research is of a theoretical type and has been carried out using a descriptive-analytical method.
Ethical Considerations: In this research, the principles of trustworthiness, honesty, neutrality and originality of the work have been respected.
The answer to the legitimacy of artificial intelligence in judicial affairs depends on the explanation of the judgment evidence, the conditions of the judge and other branches in jurisprudence texts.
Based on evidence, the judgment of artificial intelligence cannot be legitimate; Finally, artificial intelligence can only be used as a tool for the judge due to its power of memory, receiving and processing information, and lack of vision errors.

Many Western thinkers distinguish ethics from law and legitimize some rights which are legal yet essentially immoral. This way, the right to be wrong comes into play in modern human rights discourse. The basic principles of this right include separation of law from ethics, non-interference of the State in norm-making, and acknowledgement of the right to civil disobedience.  However, there are some other Western thinkers who refute the right, and in effect its principles, holding that it leads to an unrestrained law. The Islamic thinkers, unlike Western thinkers, believe that the source of right belongs exclusively to God and that Man is obligated to follow the divine commands to achieve eternal bliss. They maintain that it is the duty of the State to set the scene for the obedience of mankind. And that it is only the divine law which is inclusive of both ethics and law and can lead man to salvation. Moreover, civil disobedience is strictly prohibited in Islamic law unless it is done in accordance with ethical principles and in Mantaqa al-Farāq. Use was made of the descriptive-analytical design in conducting the present study.

In 2020, the prosecutor of the ICC requested the pretrial chamber to issue a Ruling on Jurisdiction under Article 19(3) of its statute regarding the state of Palestine. The Ruling on Jurisdiction means the beginning of preliminary investigations into the crimes committed by the Zionist regime against the Palestinians in the occupied territories.  Before examining the request of the prosecutor, the pretrial chamber requested the institutions, governments, and experts under the title Amicus curiae to state their considerations in this regard. Therefore, several bills were sent to the court's office, some of which indicated the approval of and others indicated the opposition to the ruling on jurisdiction. With a descriptive and analytical method, the present study explains the dimensions and approaches of the proponents and opponents of the jurisdiction of the International Criminal Court in the state of Palestine?” The research question asks: “What is the reason for the agreement and disagreement of Amicus curiae with the ruling on jurisdiction in the state of Palestine. The results of the research show that the approach of the supporters of the jurisdiction of the Court in terms of customary international law and the provisions of the Rome Statute is correct and in accordance with legal reasonability. Since most of the challenges regarding the state of Palestine are related to the issue of the statehood of Palestine, and the recognition of Palestine as a non-member observer state by the UN General Assembly resolution is a sure proof of Palestine as a state, the preliminary branch issued the decision of criminal jurisdiction in the state of Palestine despite the opposition of the friends of the International Criminal Court.

Examining the jurisprudential reasons for "vacant house tax" is an important step in the conclusion and implementation of the tax law on empty houses, as is the purpose of this analytical and descriptive research, which is a library-type method of collecting information. On the other hand, despite the importance of this issue, the entry of jurisprudence researchers in this field even after the Islamic revolution and the formation of the Islamic government was very weak and weak, and therefore this research is completely new and innovative.
The findings of the research indicate that the juridical legitimacy of the "vacant house tax" can be proven with three reasons: a) the approval opinion of the ruler of Sharia (with legal approval and the approval of the jurists of the Guardian Council). b) With the reason of "reason" through examining the aspects of the issue in terms of real advantages and disadvantages. c) The rules of "harmless" and "harmless", by proving the loss and harm of the absence of tax on an empty house.
Generalities and principles such as "be faithful to the contracts", "Muslim fulfills his condition" and "principle of correctness of action" are unable to prove the jurisprudential legitimacy of "empty house tax". As the arguments of the opponents under the heading 1- conflict with the rule of subordination and property rights of individuals 2- conflict with the rule of the need to protect the economic and social order and prevent system disruption, are weak and they do not have the power to contradict the supporting reasons.

Social phenomena have arisen with the development of previous phenomena. The legal system and political force are none alone accountable for all social realities and the foundations of the law are formed in the main roots of society and law cannot be analyzed separately from society. The issue of the land tenure is the phenomena that occurred in Iran after the Islamic revolution in the field of legislation which is a kind of rush to provide a solution and respond to the expectations of the revolutionary people by relying on jurisprudential and revolutionary views. The last result of the reasonable men to experiences and by jurisprudence for the benefit of some people in society was the new legislation. The challenges facing the fundamentals of the developments of land tenure have been the reason of discussion in many issues and the records of the subject should be reviewed and adapted in order to analyze it by jurisprudential and legal system. These challenges by identifying the foundations of the developments of land tenure are analyzed in this regard and the goal is not merely to discover jurisprudential rules as the basis. This article analyzes the hypothesis of the absolute impact of revolutionary views on expropriation [dispossession] of private ownership and iqta (Arabic: الإقطاع, Romanized: iqṭāʿ, sectorization) of public property. The result obtained in the end is that it shows the influence of revolutionary views along with social, economic and political conditions on the developments of land tenure after the Islamic revolution.

One of the conditions that couples, under the influence of the current socio-economic situation, are willing to include in marriage is the condition of not having children, while the legitimacy of this condition is a challenging issue in jurisprudence. In the present study, we are trying to answer the question of the legitimacy of the condition of not having children by descriptive-analytical method The result of the research is that the legitimacy and obligation of the mentioned condition from the point of view of certain jurists is not a license to commit a forbidden act or to use illegitimate methods in order to fulfill it, and in case of disturbing the obligatory obedience of the couple, the condition is not permissible. Also, if procreation becomes necessary in the society under certain conditions, the secondary ruling of having children is obligatory, and in this case, the condition of not having children in the marriage contract is certainly not legitimate and obligatory.

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.