نوع مقاله : مقاله پژوهشی
نویسنده
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
The principle of autonomy of volition (will authority) in the modern Roman–Germanic legal system means the originality of human will (the parties of agreement) for the legitimacy of the obligations and contracts. It is only the will of the parties of obligation that justifies and constructs the contract. If there is a constraint, this constraint is a legal constraint that roots in the public and national will. Law is the appearance of will in the general arena, and obligation is the appearance of will in the private arena. This approach roots in the consideration of human as a "subject" that began in Descartes' philosophy and culminates in the subjectivism of Kant. Kant presents the human as an essence rational, free, volitional, and brave to use his reason autonomously. Legal liberalism believes that the free human, with his free will, is the positioner of rights and that he is the constructor of obligations with his autonomous will. This approach leads to anti-formalism, originality of volition, non-interference of government in private relations, and volition as a main element in the obligations, etc. However, in Shia jurisprudence (Imamai fiqhe), the contract is a religious affair, and it is religion that justifies the contracts (directly or through vouchsafing validity to rational custom). Validity of the contracts comes from Allah because He is the genuine proprietor of the universe, and only He can give permission of possession in property to servants. This approach leads to formalism and the originality of religion. The main problem of Iran's legal system is that it attempts to combine these different approaches. So there are two types of articles in the Civil Law of Iran. The hypothesis of this paper is that the principle of autonomy of volition (will authority) has no compatibility or salubrity with Shiite jurisprudence, and Iran's legal system should select between the principle of autonomy of volition and the approach of Shiite jurisprudence and should avoid legislative articles conflicts.
کلیدواژهها [English]
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