Analysis of the Concept of "Soft Law" and Its Application in the Family Legal System from a Religious Perspective
Seyyed Musa
Musawi
PhD Student in Women's Studies, University of Religions and Denominations, Qom, Iran
author
javad
habibitabar
Associate Professor, Department of Jurisprudence and Judicial Law, Al-Mustafa International University, Qom, Iran
author
Mahmooud
Hekmatnia
Professor, Department of Jurisprudence and Law, Research Institute of Islamic Culture and Thought, Qom, Iran
author
Muḥsin
Fattāḥī
Assistant Professor, Faculty of Women and Family, University of Religions and Denominations, Qom, Iran
author
text
article
2021
per
The concept of "soft law" has faced difficulties from the beginning and different views have been expressed about it. Some do not consider "soft law" as a legal concept because it does not have the nature of a government obligation. On the other hand, others believe that this concept, despite not having a guarantee of criminal execution, is one of the legal concepts in which voluntary obligation is introduced instead of government obligation. Some have equated soft law with morality because of its binding nature. Using descriptive-analytical method, this research seeks to answer the question: what is the meaning of "soft law" and how does it flow in the family legal system from a religious point of view? To answer this question, while explaining the concept of soft law, we examined its conceptual relationship with hard law and morality, and after reaching the point that soft law has a legal meaning and is different from hard law and morality, we analyzed the application of soft law in the family from a religious perspective. Hence, we have shown that, from a religious point of view, not only "soft law" can be applied in the family law system, but also due to the unresponsiveness of hard law in the family law system and the lack of ethics in family relations, the basic principle in family law system is the softness of rights and laws.
Jurisprudential - legal studies of woman and family
University of religions and Denominations
2676-3036
4
v.
7
no.
2021
7
27
https://zan-khanevade.urd.ac.ir/article_137088_640d9e8ac7fced0ff3009c89eb898f84.pdf
Women's Account of the Difficulties of Legally Claiming Their Family Rights
Aqdas
Barati
PhD Student in Women's Rights in Islam, University of Religions and Denominations, Qom, Iran
author
Mansoureh
Zarean
Assistant Professor, Department of Social Science and Development Studies, Research Institute of Women, Alzahra University, Tehran, Iran
author
Shohreh
Rowshani
Assistant Professor, Department of Social Science and Development Studies, Research Institute of Women, Alzahra University, Tehran, Iran
author
text
article
2021
per
The purpose of this paper is to study the difficulties faced by women in claiming their family rights through law. The research has been done by qualitative method. Data were collected through semi-structured interviews with 21 women who had experience of marriage and marital life and were selected by purposive sampling. Data were analyzed using qualitative content analysis technique. According to the research findings, the legal difficulties of claiming women's family rights are included in four categories: the difficulties of using the terms of marriage contract, the dominance of the male view in drafting and enforcing laws, the inefficiency of family laws and the conflict between legal demands for rights with the continuation of a peaceful life. Accordingly, despite women's awareness of many of their family rights, mis-institutionalized attitudes and actions resulting from the cultural context of society, legal gaps, and the possibility of violating legal obligations play an important role in women not enjoying their rights.
Jurisprudential - legal studies of woman and family
University of religions and Denominations
2676-3036
4
v.
7
no.
2021
29
54
https://zan-khanevade.urd.ac.ir/article_137089_1ba9bdebf9e64231d333e8da10ceac84.pdf
Jurisprudential and Legal Analysis of Article 957 of the Civil Code: Fetal Competence of Enjoyment
Abolfazl
Alī Shāhī Ghaleh‘joughi
Associate Professor, Department of Theology, Farhangīyān University, Tehran, Iran
author
abdollah
bahmanpouri
Assistant Professor, Department of Theology, Yasouj University, Yasouj, Iran
author
Raziyeh
Pishro Nasrabad Sofla
Master's Graduate in Theology, Yasouj University, Yasouj, Iran
author
text
article
2021
per
In Article 957 of the Civil Code, the legislator has spoken about fetal competence of enjoyment stating that the fetus enjoys civil rights, provided that it is born alive. It seems that there is no clear statement in this regard in jurisprudential texts. In this study, we try to answer the questions: Is the condition of being born alive valid only about inheritance or can it be generalized to all rules of pregnancy and fetus? What is the difference between inheritance and other rights related to pregnancy, which requires several rulings? In this article, based on religious and legal arguments, we have given appropriate answers to these questions and we have reached the conclusion that since the condition of the live birth of a fetus has religious reasons only for inheritance, the condition, by comparing other matters, cannot be generalized to contracts such as gift, peace, sale and endowment without a reason. And the spread of this condition to other contracts requires a reason which is missing, because inheritance is a legal event and is forcibly inherited by the heirs, but contracts are legal acts that are enacted by the legislator and have legal effect or are of an indefinite category that are not mentioned in the law. According to the theory of ownership transferring in contracts, the fetus becomes the owner from the time of transfer of ownership, and it does not matter if he is born alive or dead. As a result, the nature of contracts is different from inheritance. Thus, having multiple natures also requires multiple rulings. Consequently, in Article 957 of the Civil Code, it is better to reconsider the condition of the living birth of the fetus to enjoy civil rights.
Jurisprudential - legal studies of woman and family
University of religions and Denominations
2676-3036
4
v.
7
no.
2021
55
79
https://zan-khanevade.urd.ac.ir/article_137090_fd2e3d840ea8e6ffcf2a76af53b4ad68.pdf
Ruling on Converting a Temporary Marriage into a Permanent One, Assuming that the Period is not Mentioned in the Formula
mohammad rasool
ahangaran
Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Farabi Campus, University of Tehran, Qom, Iran
author
Mahmud
Golaghayi
PhD Student in Jurisprudence and Fundamentals of Law, Farabi Campus, University of Tehran, Qom, Iran
author
text
article
2021
per
One of the indisputable principles of Shiite jurists regarding transactions is the compliance of contracts with intent. However, in Shiite jurisprudence, we encounter issues whose appearance is contrary to this rule, and some transactions have been ruled to be done, although they are against the intention of the contractors. Among these issues is the matter of converting a temporary marriage into a permanent marriage if the period is not mentioned due to forgetfulness, modesty or intentional abandonment. Since this is contrary to the rule of compliance of contracts with intent, the question arises as to how, when a person does not have the will to have a permanent marriage, the formula results in a permanent marriage. In this article, we re-read the reasons for converting a temporary marriage into a permanent one and try to say that, the documents and proofs of converting a temporary marriage into a permanent one are not reliable. Moreover, we put forward two new reasons to prove that permanent marriage does not take place. This article uses analytical method.
Jurisprudential - legal studies of woman and family
University of religions and Denominations
2676-3036
4
v.
7
no.
2021
81
104
https://zan-khanevade.urd.ac.ir/article_137091_ce33458abc85cc81d8a4ddbebdbc6fd5.pdf
Jurisprudential and Legal Review of the Right of the Adopted Child to Receive Alimony from the Legal Guardian
Ahmadreza
Mousavi
Master's Graduate in Private Law, Imam Sadiq (AS) University, Tehran, Iran
author
Ahmad Ali
Ghane
Associate Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Imam Sadiq (AS) University, Tehran, Iran
author
text
article
2021
per
Some citizens adopt a child through the legal process, thus committing themselves to providing for their material and spiritual needs. The adopted child is not considered the real child of the guardian and is not even one of his or her real relatives. For this reason, some believe that the means of alimony are missing and that the adopted child has no right to receive alimony from his guardian. On the other hand, man certainly needs someone to provide for him at a young age. Current laws also require the guardian to pay alimony. Therefore, at first glance, it seems that there is a conflict between this legal ruling and jurisprudence. In the present study, the authors reject this conflict. With a jurisprudential and legal approach and by collecting data through the library method, they have addressed the basics of the adopted child's right to receive alimony from his guardian. Finally, the guardian's commitment is introduced as the source of his duty to pay alimony.
Jurisprudential - legal studies of woman and family
University of religions and Denominations
2676-3036
4
v.
7
no.
2021
105
124
https://zan-khanevade.urd.ac.ir/article_137093_c5bf8f206fad102d615d039e577306fb.pdf
Jurisprudential Study of the Ruling on Unity of Procedure in the Payment of Dower in Installments and the Wife's Right to Refuse Obedience
Fatemeh
Maleki babhavizi
Department of Fiqh (jurisprudence) and basis of Islamic law, Qom Branch, Islamic Azad University, Qom, Iran
author
Esmat al-sadat
Tabatabaei Lotfi
Assistant professor, Department of Fiqh (Jurisprudence) and principle of Islamic law, Qom Branch, Islamic Azad university, Qom, Iran
author
Nasrin
Karimi,
Department of Fiqh(jurisprudence) and basis of Islamic law.Qom Branch.Islamic Azad University.Qom. Iran
author
text
article
2021
per
According to the famous ruling of the jurists and Article 1085, the wife can refuse the first special obedience until she receives the dower. Sometimes, due to financial incapacity, the husband is not able to pay the dower, which in case of referring to the competent authorities and claiming incapacity, the court orders the dower to be paid in installments. In this case, the dispute over whether the wife's right of refusal still remains or not, led to the issuance of ruling on unity of procedure in the payment of dower No. 1387/05/22-708, according to which, until the last installment is paid, the wife has the right to refuse and is entitled to alimony. In the jurisprudential study of the issued verdict, the following results have been obtained: First, a considerable number of jurists, in the case of incapacity, do not consider the right to imprisonment valid and have accepted it only if the husband is financially capable. In addition, a group of jurists have considered heavy dowers as an obvious example of spendthrift transactions and have cast doubt on their legitimacy. According to the authors, in the current situation, acting in accordance with the ruling on unity of procedure is contrary to the requirements of the marriage and its inherent nature.
Jurisprudential - legal studies of woman and family
University of religions and Denominations
2676-3036
4
v.
7
no.
2021
125
147
https://zan-khanevade.urd.ac.ir/article_137094_43b250d5867825e07e4a53e11b805820.pdf