نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی کارشناسی ارشد حقوق خصوصی، دانشکده معارف اسلامی و حقوق، دانشگاه امام صادق علیهالسلام، تهران، ایران.
2 استادیار، گروه حقوق خصوصی، دانشکده معارف اسلامی و حقوق، دانشگاه امام صادق علیهالسلام، تهران، ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Context & Objective: This research addresses the concept of Hajr (legal incapacity) within Shia jurisprudence and Iranian law, prompted by the complexities of modern economic life. In specialized fields like financial markets, individuals who are legally competent [Rashid] may still lack the specific expertise to identify and avoid detrimental transactions, raising the question of whether legal protection can be extended to them. This study explores the foundational possibility of establishing a form of "relative Hajr" [Hajr Nesbi], which would apply only to specific domains where an individual is vulnerable. The research aims to answer whether the concept of Hajr can be interpreted in an exemplary (non-exhaustive) manner and if the legally recognized causes of incapacity are strictly limited to those explicitly listed in legal and jurisprudential texts, or if new causes can be identified to meet contemporary needs.
Method & Approach: The study employs a doctrinal and library-based methodology, utilizing a hermeneutic-analytical approach to examine primary sources. The research begins by establishing a conceptual framework through a lexical and terminological analysis of Hajr and its prerequisite, legal capacity [Ahliyyat]. It then critically assesses the definitions and causes of Hajr presented by both jurists [Fuqaha] and modern legal scholars, highlighting divergences between the broader jurisprudential understanding and the narrower interpretation often found in Iranian positive law, particularly concerning Article 1207 of the Civil Code. The paper contrasts these views, proposes a refined definition of Hajr, and briefly compares the concept with laws on legal incapacity in several U.S. states to demonstrate the viability of a more flexible approach in contemporary legal systems.
Findings: The research finds a significant distinction between the definitions of Hajr in Iranian legal scholarship and Shia jurisprudence. While many legal scholars link Hajr to a lack of capacity for legal execution [Ahliyyat al-Istifa'], jurisprudential sources define it more fundamentally as a "prohibition" [Man'] imposed by the Lawgiver on a person's ability to dispose of their property, whether partially or totally. This jurisprudential view supports a more expansive application. Regarding its causes, the study argues that the common legal assumption of an exhaustive list (minority, insanity, and prodigality as per Article 1207) is a misinterpretation. Analysis of classical jurisprudential texts reveals that the enumerated causes were often considered exemplary or conventional for pedagogical purposes, not strictly exhaustive [Hasri]. Therefore, the findings suggest that any condition leading to a legally mandated prohibition on financial disposition, consistent with the Islamic Fiqh, can foundationally be recognized as a cause of Hajr.
Conclusion: The study concludes that the restrictive interpretation of Hajr in Iranian positive law is not mandated by its Islamic jurisprudential foundations. Shia jurisprudence allows for a more flexible and expansive understanding, where the causes of legal incapacity are not exhaustively enumerated. Consequently, there is no fundamental jurisprudential barrier preventing the legislator from establishing new forms of Hajr, including "relative Hajr," to protect individuals in specific, complex situations, provided such measures align with a precise definition of the concept. While this research establishes the foundational possibility, it emphasizes that the actual implementation of such a law would require a comprehensive evaluation of competing principles, such as the freedom of contracts versus the protective aims of the law. This paper serves as a crucial first step, inviting further research into the practical and theoretical implications of modernizing the application of Hajr.
کلیدواژهها [English]
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