جستجوی مقالات مرتبط با کلیدواژه « اثبات گرایی حقوقی » در نشریات گروه « علوم انسانی »

The definition and ambit of criminal policy has been evolved since its birth and it is today regarded as knowledge and art of recognition and implementing several measures and backward or foreward responses invented to tackling criminal phenomenon, defending society and citizens and safeguarding individual rights and liberties by state and/or community. By different sorting out of its dual elements -criminal phenomenon and body of society-, variable relations and state-based or community-based models evolve. State-based models could belong to authoritarian or totalitarian states as well as to liberal states. On the other hand, the longlasting and fundamental problematic of criminal jurisprudence as to source of the right to punish has been enfronted with within two major categories of doctrines -psitivist doctrines and natural law doctrines. This research, using descriptive-analytical method, has been to a find the interrelation of these doctrines and the so-called models and has found out that state-based models, authoritarian and totalitarina models are mostly compatible with natural law doctrines, while liberal state models are more conformed with positivist doctrines.

Although the school of legal positivism took place as a prominent discourse in the world's scientific environment; But theschool of natural law isalways favored bymany thinkers of the world.With the statements made by the thinkers of natural law, we can say the similarities between this attitude and the foundations ofTranscendent theosophy in the field of the relationship between law and ethics. The most important of these similarities is the adherence of each of the above two groups to fixed moral principles in law and the recognition of the close connection between these two sciences. This research aims to answer the question that what is the relationship between the Transcendent theosophy thinkers and the human rights of the West? The hypothesis of this research is based on the fact that natural rights thinkers believe in the existence ofakind of fixed rights in human legal systems,which they considerbeyond contractualagreements, andTranscendent theosophy thinkers, in addition to seeing rights as divine, believe that moral principles are fixedin They believe in the human system and as such as natural rights, reason ismentioned as oneof the sourcesof measuring and receiving these fixed principles But the divine law,which is comprehensive of morals and rights, is considered perfect for the happiness of man.The school of positivism also does notneed tomatch the ruleswith fixed moral standards in order to recognize the correctness of laws, but only the will of the legislator expresses the correctness of a law. This research is based on analytical-descriptive method and based on library sources.

Philosophy of law is one of the most complex and difficult branches of law, as well as philosophy, which seeks to determine the legal truth of law (law as it is). Legal positivism, as one of the philosophical schools of law, with a morally neutral theory, makes the conceptual description of law possible and necessary. According to this school of law, positive laws are laws adopted by governments, and in the context of the analysis of this school, public law emerges as a branch of law whose main mission is to study the rules governing the organization of internal and external relations of the state in its general sense, by designing general theory with a correct and in-depth understanding of its fundamental concepts. Herbert Hart’s legal theory, with a hermeneutical approach to legal rules, seeks to understand the legal system through introspective analysis and semantics of legal rules. Through a comprehensive analysis of the formulation of legal rules, while adhering to a minimum of the natural law, it also seeks to depict a system of law in which following the law is internalized, not as mere following the ruler; this system of law proposes the theory of distinction between the primary rules and the secondary rules, as well. Therefore, this descriptive-analytic research analyzes Hart’s positivism in the field of public law.

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.

The dominant approach in the field of human rights is Legal attitude. Legal attitude more than anything else on the identification and recognition of human rights by the government is focused. At the same time, governments are the biggest violators of human rights norms. Despite the gap between the legal obligations of states and the real world, legal analysis of this gap is not possible. Therefore, in the era of inflation of rights, according to Louis Henkin, transition needs based approach to the protection of human rights is justified. Social sciences, especially political sociology may be, to identify obstacles to the realization of human rights in different societies and operate it is used. Since the main subject of political sociology "explores the relationship between state and society" is, knowledge can be produced in the field of political sociology in understanding the inability of governments establishing human rights norms and effective ways to fix it. Therefore, it can be said that human rights political sociology focus on: how to advance the state of human rights in a society and its institutionalization and consolidation within all relationships and political processes.

Intellectual trends called fascism and nazism, legal positivism, and some other philosophical schools believe that man inherently lacks dignity and seeks the origin of his dignity in such things like his correlation with a certain state, government, race, ideology, and religion. Islam, however, believes that as a human being, man has inherent dignity. This dignity is based on a set of concepts and fundamental moral and religious values; namely," freedom and freewill” rationality and reasoning”, and “possession of divine blast and prestige". Islam believes that in addition to inherent dignity, man has “acquired dignity” the most important criterion and basis of which are piety and faith. The present paper studies the meaning and principles of inherent and acquired dignity according to Islam.

Hans Kelsen was not only a very great jurist but he possessed of exceptional personality. During his life, Kelsen devoted a considerable attention to the issues like as the maintenance of peace, international matters, and the nature and concept of law. He sought to describe law as separate from both ethics and ideology. Kelsen's legal positivism is of some features as follows:1. it is free from any ethical or ideological issues;2. in his theory no value judgment is made concerning the legal system per se;3. all historical, sociological and ethical issues are beyond the scope of this theory;4. this theory is set up first by making a fundamental distinction between the prescriptive and the descriptive aspects of positive law;5. Kelsen separated the validity from the efficacy; in his view, the validity means that there is norm or legal order, and the validity of the legal norms within any system stems from a basic and fundamental norm;6. Kelsen's theory redounds to some unity between international and national law, between objective and subjective law, and between the state and the law.