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

According to the predominant narrative, the concept of human rights is founded within the context of modernity and based on the secular theories of Enlightenment philosophers. However, there is a minority view that traces the roots of modern theoretical and political movements such as humanism, liberalism and socialism, which form the intellectual foundation of human rights, in Christian theology and ethics. Nietzsche is one of the pioneer philosophers who considers the basic principles of the international human rights system, including inherent dignity, freedom, equality and universality, to be influenced by Christian moral values which are based on the representation of the morality of slaves against the morality of masters. This theory is different from the westernization of human rights claimed by cultural relativism and postmodern theorists, although both opinions lead to the same result; challenging the universality of human rights. The present paper tries to investigate the course of this intellectual flow by focusing on the works of Nietzsche and to give an appropriate answer to the question of how the universality of human rights has a paradox with its Christian roots.

One of the remarkable institutions of Islamic criminal jurisprudence, which causes the active presence of the accused and the criminal, in the field of determining the judicial fate and eliminating criminal proceedings, is repentance, which is systematically reflected in the Islamic Penal Code of 2012. However, using the maximum capacity of repentance requires an institution called "Estaba" (official offer of repentance to the accused or criminal), which has been used in the criminal policy of Imam Ali (a.s.) in various crimes. Based on the results of this article, Istaba as a sovereign task is based on anthropological, political and social, moral and criminalistic elements and has various functions such as decriminalization, guidance, correction, dignity-oriented and psychological. In addition to this, in the criminal policy of Imam Ali (a.s.) it has been implemented in financial, ideological and non-victim crimes, but it is possible to extend it to all crimes in which repentance is prescribed and also as one of the conditions for the criminal to benefit from reconciliation institutions. There are criminal and post-criminal protections.

The evolution of natural law within jurisprudence has profoundly shaped legal philosophies throughout history. Its foundations intertwine theology, religious ethics, and the belief in fixed, eternal laws governing the world's nature, rooted in divine order. The origins of natural rights can be traced back to the Stoics, whose philosophy emphasized the intrinsic relationship between nature, reason, and law.Early proponents of natural law, influential until the 18th century, contested the credibility of man-made laws, advocating for objective limitations on sovereign lawmaking. They asserted that man-made laws ought to align with natural law, grounded in reason. However, societal progression prompted a shift, acknowledging the necessity of man-made laws.In the modern era, the rise of positivism and the belief in the separation of law and ethics posed challenges to traditional natural law theory. Some thinkers contended that despite these changes, natural law could still address modern ethical needs by modifying classical perspectives.John Stuart Mill's "On Liberty" in 1859 introduced the Harm principle, challenging the government's role in morality enforcement. Subsequently, James Fitzjames Stephen opposed this notion in "Liberty, Equality and Fraternity" in 1873. The 20th-centur y "Wolfenden Committee" report to the British House of Representatives triggered debates such as the "Hart and Devlin" debate, centering on the principle of harm, becoming pivotal in Anglo-American legal philosophy and across legal systems globally.This article aims to assess the relationship between law and morality within the context of natural law jurisprudence. It contends that while classical natural law comprehension may be inadequate, a rational understanding of legal ethics can withstand positivist criticisms. Moreover, it argues that modern natural law, despite its theoretical advancements, faces practical challenges. Notably, references will be drawn from prominent natural law thinkers such as LON Fuller, Mark Murphy, John Finnis, and Robert George.An essential conclusion drawn from these evaluations is the centrality of reason in moral legislation. While classical natural law emphasized the superiority of morality over law, modern natural law theories focus on the formal conditions of legal morality, relying on formal, rational, and verifiable criteria.The transformation also extends to the approach toward law and ethics, altering the concept of duty towards unjust norms and leading to changing standards of legal morality. Furthermore, the origins of legal validity have shifted from moral principles rooted in broader maxims to the predominance of reason and rationality in legitimizing political and legal orders.

The article 567 of the Iranian Islamic penal code, with an innovation towards the former law, has criminalized a new behavior which is encroaching on other’s bodily privacy and imposing intentional physical force on his body. This behavior, although may lead to spiritual injury in victim, leaves no effect in his body. This crime has considerable unity aspects with a criminal offence in the English legal system entitled "Battery". Scrutiny the elements of this crime in the English legal system and comparing it with the mentioned article and also studying the similarities and differences between these two crimes, shows new aspects of the mentioned article in our country’s legal system; Aspects which has not been considered so far. In addition, it seems that the nature of the legal response that inserted in the article 567 of the Iranian Islamic penal code for committing the matter of the article is not just punishment, but also has aspects of compensation.

Kelsen’s effort to deliver a normative positivism (thesis of normativity) leads to a theory of legal obligation which is moral in nature i.e., it provides us with norms which refer to a rational necessitation of an action. But, the purity of the theory demands the separation of morality from law (thesis of separation). Therefore, confliction between the two above mentioned theses is inevitable. Kelsen tries to reconcile them by proposing three solutions: restriction of presupposition of basic norm to effective legal systems, moral relativism, and descriptive nature of legal propositions. These solutions include three claims about the Differentiation of basic norm from moral norms: moral formalism, moral neutralism and exclusion of positive invalidity. But critics argue that the solutions suffer from derivation of “ought” from “is”, rejection of possibility of conflict between moral and legal norms, insufficiency of moral relativism for proving Kelsen’s theory as an only alternative of natural law and traditional positivism and tendency of theory to regarding legal norms as imperative. To avoid these problems, Kelsen substitutes the traditional theory with the empowerment theory. The new one could reconcile the normativity of law with the thesis of separation, but its inability to explanation of legal obligation convinced Kelsen to give up his new-Kantian believes and join to voluntarism.

The judicial reasoning –based precedent is a profound issue rooted in the philosophical thoughts of the judge. The philosophical orientations or lingual characteristics of the judge always determine the method used by him relate the general concepts of the law specific case . Each philosophical theory has a different view on it. Based on Hegel 's dialectic approach and the language function of Wittgenstein and Gadamer's Hermeneutics with respect to law, the judicial reasoning process deserves to have its internal moral rules particularly under the non- realistic schools of the morality. The present article, using descriptive – analytical methodology, aims at studying the morality of the process under the said theories. According to Hegel, the law is becoming due to the dialectic nature of the judge's determinism. This fact is an essential element for the social newness. This social newness is a context for the formation of the moral norms. As the language function argues, in the judicial argument the language is not the mirror of the concepts only; but, it creates them. This approach may change the criminal titles or civil law terminology , possibly leading to the change in the social norms Under the philosophical hermeneutics , there is a circle between the philosophical orientation of the judge and the legal text. In each reading, new concepts emerge which are true and applicable .This theory plays a significant role in the judicial reasoning process and the enforcement based on it for the formation of the mora values .

The present article, titled "the legalization of moral affair in the geography of right and duty," deals with the question: How can moral values be articulated and dominated in the modern right-axis world?Here, the author tries to follow the discussion of the legalization of morality in the four areas of the human society, the religious community, the Islamic society, and the national community, while referring to Durkheim's theory of "moral conscience" and expressing the profound social differences between the two axes of thought and right axis.According to the present article, the moralization of society, whether through law or otherwise, requires the consideration of society as an influential structure.A community is a society that consists of the composition of its components that are the people of society and, at the same time, has a different property than the individual constituent of it. In this context, any change in social relations, such as legal or moral affairs, requires the consideration of society as a fact of determination

The aim of this article is to show that (1) “right” can have a moral meaning; and (2) moral duties are divided into those that correspond to moral rights and those that do not. A moral right is a kind of right that is rooted in moral considerations, and states or expresses such considerations. There are at least two ways to argue for these claims the first is to examine the justificatory foundations of rights, showing that the justification that is available for some rights is a moral justification (section 2), and the second is to examine the role, status and function of rights in morality and moral discourse (section 3).

With the transformation of political and economic systems, the world is becoming a global village, and its needs to harmonize laws and regulations and the globalization of rights is more and more concrete. In this study, the conditions and barriers to the recognition and enforcement of foreign judgments in Iranian law have been adapted to EU rules, and the implementation and differences of judgments in both systems have been investigated. The results showed that the commonality of both systems is that only civil and commercial sentences can be identified and enforced, and criminal and administrative and tax decisions are excepted. The study found that EU regulations could be shared between countries with regional and religious communities, such as the member states of the Islamic Conference, the Eco-Organization and the Non-Aligned Movement (NAM).

The aim of this article is to introduce and compare the views of some Muslim thinkers in philosophy of Islamic Jurisprudence (fiqh) regarding the relationship between morality and the positive religious law (Sharīʿah) with the views of some Western thinkers in philosophy of law regarding the relationship between morality and the positive secular law. In each camp we have two major rival views to be compared, i.e., Moral rationalism vs. the Divine command theory, and Natural law theory vs. Legal positivism. Although each of these theories has been variously formulated and interpreted over time, the central tenet in Legal positivism is that there is no necessary relationship between morality and the content or form of law, whilst Natural law theory is grounded on the acceptance of the existence of just such a relationship. On the other hand, in philosophy of fiqh, the various formulations of the Divine command theory are centred on the dependence of morality on Sharīʿah whilst all readings of rationalism deny such a dependence. Certain formulations of the Divine command theory and Moral rationalism can be compared with particular readings of Legal positivism and Natural law theory, respectively. This comparison can help to deepen our understanding of all four theories and aid legal interpreters and executors in the refinement and implementation of religious and secular positive law.

Rights are among the most important fundamental normative claims that have played a pivotal role in the development of individual and social lives of human beings over the last centuries. This concept and institution, the same as any other normative concept and institution, is in need of justification. However, justification of rights, due to their particular nature, seems to be too hard. Are rights established on the basis of morality? In order to answer this question, it is first imperative to inquire into the nature of the moral and also that of rights. Inquiring into the nature of them, in particular that of morality, shall inevitably lead the discussion towards the common and distinguishing features of them from similar fields. This paper is, however, focused on the differentiating dimensions of the moral and rights. Having introduced distinguishing features of “the moral” and “rights”, we shall investigate and conclude on the logical relationship between the mentioned two in the context of justification or theoretical defence of rights. Such investigation and conclusion will pave the way for a more precise understanding and application of the aforesaid concepts.

The question of reason and possibility of legal enforcement of morality rooted in fundamental concepts of public LAW, such as freedom and law, and the answer to this question have a great influence on determining the form and functions of the state. What is being discussed in this article is that, by contradiction between the morality and authority of the state, how should be the morality enforcement  and in other words, what is  the mechanisms of the morality enforcement in the Islamic Republic as a concrete example of the Islamic state? The answer to this question, in addition to the fact that it is possible to enter the state in the field of morality and the requirement for it, can be a base to the assessment of the validity of the state's morality enforcement, and to use these mechanisms in various subjects or to amend them. In this article, which is prepared by the method of library studying and analyzing the legal- juridical system of the Islamic Republic of Iran, after expressing the concept of morality and a brief examination of the principles of limiting the freedom of individuals by law, the laws and institutions of the Islamic Republic of Iran are analyzed. It can be said that prioritization of morality enforcement, such as the mechanism of the Islamic Republic's fundamental rights, the method of Appointment and supervising state agents, the establishment of special institutions for the promotion of morality, and public supervision have the priority that the morality enforcement of Judiciary. The use of force is the last level of the morality enforcement.

In the legal interactions of humans, a contract is made and the people obligate themselves to this contract and the decree is prohibited and deserves compensation, and due to this contract, a person committed for doing something and on the other hand, these obligations have compelling powers that are crystallized in the form of its implementation and are distinguished from ethical promises. Where does the source of obligation come from? In responding to this question, many ideas were raised that each of the opinions has many followers, including the rule of will, constraint, law, justice etc. and among them, the advocates of this theory which emphasize on intention, make the will only the source of the obligation to contract. But it does not seem that the only will of the person who usually seeks to attract personal interests is effective in this obligation and commitment, but along with this individual will, one has to pay attention to the role of the collective will of humans seeking to attract the interests of the people, and finally it is acknowledged.

Family rights base upon moral values. The effect of moral factors in this emotional community is a matter of fact. The correlation between legal regulations and moral principles is a main characteristic of Islamic law; hence approved and disapproved things in Islamic Jurisprudence point to moral concepts. The present paper aims at investigating and adapting moral factors affecting marriage and divorce and tries to employ descriptive and analytic methods to answer   this question: Did legislators consider moral principles in family rights? The author emphasizes that since marriage and divorce rules are influenced by Quran culture, the influence of moral lessons is undoubtedly unavoidable in this area. Factors such as the responsibility of wife and husband to behave well, forgiveness, marriage portion due payment, commitment to justice among wives, moral principles of divorce, custodial, expenditures of wife and her relatives are all legal elements smoothened by moral principles.

With regard to the relationship between morality and international law, there is no consensus among lawyers and the existing law schools. In this case, universal morality is considered, which is united unlike the domestic morality in different societies. It also includes the norms that are generally accepted by the international community. There is no legal sanctions for moral norms in international law, but if these norms become legally mandatory rules, they will get the legal sanctions which are anticipated for the rules. The role of morality, which becomes more and more important through the moderation of sovereignty of states and also by the progressive role of non-state actors in international law, is clearly visible in the areas such as international human Rights, international humanitarian law, international criminal law, international responsibility law and the international law of Treaties. The current research seeks to express and explain different views about the effects of morality on law and also studies the appearance of morality in different areas of international law.

Substantially, legal rules, containing their own orders and punishments, are to be supported by two or more sanctions in order to prevent the legal system to transform into mere recommendations, thus all imperatives will be guaranteed by the system of sanctions. These orders and imperatives must be circumscribed to demarcations necessary for social life since they lead to limitations in individuals’ freedom space. The most part of these sanctions legitimate in only necessities are, inter alia, non-criminal including civil, administrative and corporate sanctions and only a tiny realm of ordinances need strong backing as to criminal ones. Therefore, we’ve found it right to express that in minimalistic criminalization, a criminal type would contribute the least tinge of the concept. Such an approach is expandable due to various theories as to moralistic one. As a moralistic illustration is imagined about the society, neither enactment legal criterions nor affection on individual’s volition subject to an intimidation from implementing sanctions is needed specifically. Moralistic proliferation and the procurement of appropriate foundations for the sake of moral reactions does require a freedom in volition for making decisions come true in order to be able to concern actions derived from people’s tendencies and not from legal intimidation particularly when an action is done and an omission is undone. Therefore, a society accompanied by moralistic behaviors containing virtue-oriented men, will absolutely be emerged. What comes in the following pages is focused on expounding the minimalistic criminalization in the moral respect.

A close reading of academic literature reveals that there are different approaches over the relation between ‘natural right/human rights’ and ‘natural law’. One approach maintains that there is an unbridgeable gap between these concepts. This highlights that natural rights emergence dates to a later period compared with natural law tradition. In addition, it articulates that there is no conceptual consistency between these concepts: natural rights’ propositions are morally neutral claims which identify our liberties while natural law principles are duty-based moral obligations. Critically analysing these issues, this paper argues for a close connection between a doctrine of natural or human rights and the tradition of natural law from the historical and conceptual perspective. The essay ends with an argument suggesting that the emergence of natural rights doctrine roots in, and has evolved from, the longstanding tradition of Scholastic natural law theory.

The question of the reason and the possibility of the legal enforcement of morality is rooted in the most fundamental concepts of public law, such as liberty, law, and morality, and the quality and extent of government interference in the relation between liberty and morality requires subtlety and precision, because paying attention to each of these concepts without regard to the other Can clash society with the crisis of heterogeneous nor unknown norms or violations of public opinion. Nowadays we can say that the main and most widely used means of expressing people’s thoughts and ideas is virtual social networks, especially telegram messaging software, but the rapid spread of such tools among the people has made it impossible for social institutions and government to effectively support moral enforcement and principles in this area. The important question is “What are the legal requirements for morality enforcement in the Islamic Republic of Iran? And in particular, on the social network of telegram, what are the solutions to protecting the values of morality? “In this paper, that is descriptive and analytical through the review of general laws and provisions, after explaining the questions and expressing the concepts and framework of research, including the foundations of morality enforcement. We search among the abovementioned requirements by collecting laws in order to identify legal solutions, including positive and negative solutions, to the determination of moral principles, including observance of considerations such as freedom of speech and the legality of the offense and punishment.

According to the extremity-centered attitude of human, freedom of expression is
a requirement for the individual independence of human being as an essential
end, so the restrictions on which should be determined within the framework of
the essential exception. Freedom stands in the realm of the natural rights and
restricting it in any manner is against that essential right. In the current age,
television can undoubtedly be utilized as one of the most powerful media in the
service of freedom of expression. However, at the same time, mal-use of this
device can offend both public and private rights. Therefore, restricting the
domain of activities for the TV channels is essential. In this regard, the
international documents of human rights have set restrictions for TV. The
Iranian legal system considers some restrictions for this matter too, some of
which are compatible with those prescribed in the international documents of
human rights and some others such as the Islamic rules and standards cannot be
found in any other international documents as the restrictions on freedom of
expression. It seems that the Guardian Council's interpretations of Articles 44
and 175 of the constitution are a kind of additional constraint on the freedom of
expression. In this paper, by conducting a comparative analysis on the said
documents, we analyze the restricions on form and nature of the freedom of
expression in the Islamic Republic of Iran’s Broadcasting Corporation

Quran morals massage for young’s Muslim Moral has high position in Islam knowledge and it is one of the important korani topics.Refinement and human manner were important goals of prophetic mission in during human life so Prophet Mohammad said his prophetic mission goal was manner and Quran point to this goal in several verse. «هو الذی بعث فی الامیین رسولا منهم یتلوا علیهم آیاته و یلزکیهم و یعلمهم الکتاب و »انوا من قبل لفی ضلال مبینمه و ان کالحک Messages ethics to all Muslim youth .to advance educational goals help, in this study we evaluated the introduction part of this message; History of ethics, Definition, Ethics in place Quran and hadith ,The moral message of the Quran for Muslim youth.