The Encyclopedia of Comparative Jurisprudence and Law

Examination of the Legal and Jurisprudential Foundations of the Purchase, Sale, and Donation of Human Organs

Abbas Dehghani iD , Alireza Asgari ^* iD , Mohammad Mehdi Ahmadi iD

The theory of brain death and the issue of organ transplantation, in addition to being among the topics subject to examination and analysis in medical science, constitute highly significant and noteworthy issues in jurisprudence and law as well. This matter has been raised with particular sensitivity in Islamic jurisprudence, as the subject is directly connected to the bodily integrity of individuals, and from the perspective of Islamic law, special importance is attributed to the human being and his bodily integrity as the vicegerent of God (Khalīfat Allāh). The present study was conducted with the objective of examining the legal and jurisprudential foundations of the purchase, sale, and donation of human organs, employing a descriptive–analytical method and utilizing library-based and documentary sources. Based on the research findings and through reference to jurisprudential and legal sources, while critically analyzing the arguments advanced by proponents of the prohibition and invalidity of the sale and purchase of human organs, and considering the existence of legitimate and rational benefits arising from organ transplantation—such as saving human life or relieving a person from pain and suffering, which itself constitutes a rational and legitimate purpose—and in light of the applicability of the general principles of sale (ʿumūm adillat al-bayʿ) to the permissibility and validity of transactions involving objects that entail rational and legitimate benefits, the study emphasizes the theory of permissibility and validity.

A Criminological Study of Mitigated Criminal Responsibility Based on Perceptual Ignorance: From Chronological Maturity to Cognitive Maturity

Ali Movahhedirad iD , Zahra Tajari Mozani ^* iD , Mohaddeseh Sadeghian iD

The evolution of the juvenile criminal responsibility system in the Islamic Penal Code of 2013 (1392 AP) has taken a significant step toward criminological realism by recognizing the concept of "perceptual ignorance" in Article 91. This research aims to analyze the criminological foundations of the transition from chronological maturity to cognitive maturity. In the traditional paradigm, reaching the age of Sharia-based maturity was considered a definitive presumption of full criminal responsibility. However, findings in modern criminology, particularly in the fields of neurocriminology and developmental psychology, indicate that the development of the brain's frontal lobe and the capacity for impulse control do not necessarily coincide with chronological age. Using a descriptive-analytical method, this paper addresses how perceptual ignorance can function as a mitigating or exempting factor for criminal responsibility in crimes subject to Hudud and Qisas. The research findings indicate that understanding the wrongfulness (Hurmat) and the nature of a crime are complex cognitive processes that may be impaired in adolescents, despite physical maturity due to psychological immaturity or environmental factors. From a clinical criminology perspective, mere abstract knowledge of an act's illegality does not equate to a profound perception of its consequences and criminal nature. Finally, this paper emphasizes that Article 91, by accepting doubt regarding the development and perfection of intellect (Kamal-e-Aql), has shifted Iran's criminal policy from an absolute retributive approach toward a gradual and differentiated criminal responsibility. Nevertheless, the primary challenge lies in judicial realism and the difficulty of objectifying the criteria for measuring cognitive maturity in forensic medicine.

Comparative Analysis of the Foundations and Methods of Contract Interpretation in Iranian and French Law with Emphasis on Imami Jurisprudence

Hossein Imani iD , Abolfazl Dankob ^* iD , Susan Narimani iD

Contract interpretation, as a process aimed at discovering the true intention of the parties or determining the content of the contract in cases of ambiguity, constitutes one of the most challenging issues in contract law. The Iranian legal system, influenced simultaneously by Imami jurisprudence and French law, has developed a distinctive approach in this field. This article, employing a descriptive-analytical method and a comparative study, examines the foundations and methods of contract interpretation within these three legal systems. The findings indicate that French law, evolving from a traditional approach based on textual formalism toward a modern approach (particularly following the 2016 reforms), emphasizes the standard of the “reasonable person” and the search for the common intention of the parties, although judges retain considerable discretion in this process. In contrast, Imami jurisprudence, grounded in the principle that “contracts follow intentions,” primarily directs interpretation toward uncovering the internal intention; however, in practice, due to the difficulty of proving such intention, it pays close attention to the apparent meaning of expressions and customary understandings. Iranian law, in turn, adopts a synthesis of these two approaches; although Article 224 of the Civil Code identifies “custom and usage” as the criterion for interpretation, it establishes—under the influence of jurisprudential principles—a form of balance between internal intention and the apparent meaning of contractual language. It can therefore be concluded that there exists a meaningful convergence between Imami jurisprudence and modern French law in adopting the criterion of “reasonable understanding.” Nevertheless, Iranian law, in order to achieve a coherent and efficient interpretative system, requires a redefinition of the role of internal intention and the apparent meaning of expressions, as well as a clearer articulation of the judge’s role in this process.

The Civil Liability of the State in Cases of Public Rights Violations within the Framework of Jurisprudential Rules

Mohsen Mohammadi iD , Mostafa Amiri ^* iD , Mohammad Varasteh Bazghaleh iD

Public rights refer to a collection of rights and public interests that are generally recognized by the state or public institutions for the purpose of safeguarding and maintaining the interests of society and its citizens. These rights reflect, in a sense, the collective demands and needs of the people and encompass a variety of domains, including social rights, economic rights, political rights, environmental rights, and cultural rights. The purpose of this research, which was conducted using a descriptive-analytical method, is to explore the jurisprudential and legal foundations of the civil liability of the state in cases of encroachments on public rights, within the framework of Islamic jurisprudential rules. The findings of the study indicate that, from a jurisprudential perspective, the rule of no harm (lā ḍarar), which is grounded in a Prophetic tradition and Article 40 of the Constitution, prohibits causing harm to citizens in any form. The state, as the ruling authority, is subject to this rule, and in accordance with Article 171 of the Constitution, is responsible for compensating damages in cases of judicial error or administrative misinterpretation. This study demonstrates that the Iranian legal system, by integrating jurisprudential principles and the foundations of public law, has established a relatively comprehensive framework for the protection of public rights and for the compensation of damages resulting from state transgressions. Nevertheless, the need for the enhancement of executive and supervisory mechanisms is still strongly felt.

Legal Foundations of Exercising a Right with the Intent to Harm Others

Majid Poursohi iD , Ali Jahankah ^* iD

https://doi.org/10.61838/jecjl.239

Since it appears that each individual can freely exercise their right in any form they choose—even if this leads to harm to another—and since one may accept another's apparent intention as genuine without investigating their true motives, which may in fact be flawed and result in injury to others, the objective of this study is, first, to identify the harms arising from exercising a right with the intent to cause damage to others, and to explore its dimensions and criteria within Imamiyyah jurisprudence and legal frameworks, based on the documentation of the la-zarar (no harm) rule and the views of jurists and legal scholars. Second, it aims to delineate the scope of exercising rights, legal theories, and the resolution of disputes. The use of specific cases also assists in better analyzing the subject and identifying the standards for exercising rights with the intent to cause harm. This research, which is a scientific study, investigates a novel topic and considers Article 40 of the Constitution. The study attempts to determine the criteria for exercising a right with harmful intent. These criteria include social purpose, significant harm, wrongful conduct, conflict, lack of legitimate benefit, preference of interests, and fault—each of which, if left unchecked, can lead to dispute. What is central to all these criteria is the issue of intent to harm. One of the findings of this study is that the la-zarar rule has a scope as vast as the domain of rights themselves. It can encompass any exercise of privilege, priority, or preference as instances of intent to harm. Consequently, given that this issue is not explicitly addressed in existing legislation, and that in doctrinal discussions the concept of intent is rarely defined by jurists—who tend instead to focus on the consequences of its absence—it is possible, through an examination of cases involving the exercise of rights with harmful intent, to derive the criteria for such actions. This can ultimately guide society toward justice and rightful conduct.

Support for Crime Victims in Light of the Institution of Diyyah: A Jurisprudential and Criminological Perspective

Omid Mohammadinia iD , Mohammad Javad Fathi iD , Abbas Mansourabadi ^* iD

https://doi.org/10.61838/jecj.2.4.11

With the transformation of criminal justice approaches from an exclusive focus on the offender toward the restoration of victims' rights, attention to mechanisms for compensation—particularly within the framework of restorative justice—has gained increasing importance. The institution of diyyah (blood money), as one of the most deeply rooted instruments of compensation in Islamic jurisprudence and Iranian criminal law, possesses the capacity to support victims not only as a tool for material redress but also within a restorative, moral, and even psychological framework. This article, using a descriptive–analytical method and drawing on jurisprudential sources and modern criminological theories, endeavors to demonstrate that diyyah, beyond its financial function, can provide a foundation for reconciliation, social relationship restoration, and the rehabilitation of the victim’s dignity—especially when accompanied by components such as apology, restorative dialogue, and the participation of supportive institutions like the Diyyah Headquarters (Setad-e Diyyah). Within this framework, Qur’anic and jurisprudential teachings, emphasizing peace, forgiveness, and reparation, along with peace-oriented criminology and victimology theories, provide the theoretical grounding for analyzing diyyah as a restorative institution. The article also explores the feasibility of implementing methods such as victim-offender circles in the context of diyyah payments and argues that, although Iran's legal system is not yet structurally familiar with such methods, it does hold jurisprudential and legal-philosophical potential for achieving consensual justice. A comparative analysis of diyyah in jurisprudential teachings with the concept of restorative justice—as a novel idea in peace-oriented criminology—reveals that the institution of diyyah has considerable potential for protecting the bodily integrity of victims and resolving crimes through participatory and reparative means. Restorative justice, by emphasizing non-criminal and informal approaches, accords an active role to the victim, a feature that aligns with penal policies grounded in Qur’anic-jurisprudential teachings that are "non-punitive," "restorative," and "victim-centered." Accordingly, the institution of diyyah can serve as a bridge between retributive and restorative justice, effectively addressing the needs of victims in society.

Necessity of Criminalizing Private Bribery and Corruption with Emphasis on the 1401 Penal Code Draft

Ehsan Saleh iD , Ali Mazidi Sharafabadi ^* iD , Amir Mohammad Sedighian iD , Ali Zare Mehrgardi iD , MohammadReza Rahmat iD

https://doi.org/10.61838/jecj.2.4.2

Bribery and corruption are terms used within Iran's administrative system to refer to corrupt behaviors, particularly regarding financial corruption. Corruption remains one of the major challenges for the country, as reflected in various reports. However, there is ambiguity surrounding the precise definitions of these terms. Thus, providing clear definitions and developing regulations to combat these issues is crucial. Effective actions to fight corruption, especially financial corruption, are essential to enhance transparency and accountability within Iran's administrative system and ensure the proper use of public resources. The importance of addressing private bribery, whether private bribery or private corruption, lies in the fact that financial corruption is one of the main causes of inefficiency in administrative systems. Furthermore, bribery is a crime against public security and comfort, and every government must seek appropriate solutions to address this phenomenon to maintain legitimacy and societal order. In the past, bribery could only occur in the public sector; however, with the expansion of the private sector and the transfer of many government duties to private entities, the conditions for bribery in the private sector have also emerged. Although Iranian lawmakers have not generally criminalized private bribery, Article 588 of the Islamic Penal Code refers to private corruption concerning judges and experts. However, the 1401 Penal Code Draft gives attention to criminalizing corruption in the private sector. Based on international models, particularly the Merida Convention, criminalizing private bribery has become essential. Therefore, this study emphasizes the necessity of criminalizing private corruption and analyzes this issue according to the 1401 Penal Code Draft.

Iran's Criminal Policy Toward Economic Disruption with Emphasis on the Scapegoat Theory

Mazher Khajevand ^* iD , Sheragim Sheikhoeslami Kandelousi iD

https://doi.org/10.61838/jecj.2.4.1

Disruption in economic crimes is one of the criminal topics in Iranian criminal law that is subject to ambiguity and various interpretations. Accordingly, the aim of this article is to examine the question: How can Iran's criminal policy toward economic disruption be analyzed with an emphasis on the scapegoat theory? This is a descriptive-analytical article that employs a library-based method to address the aforementioned question. The findings indicate that Iran’s criminal policy is predominantly a security-oriented penal policy, attempting to portray itself as powerful, whereas the true strength of the system and penal policy lies in crime prevention. In reality, the state, by sacrificing a scapegoat, seeks to influence public opinion with the notion that it possesses sufficient authority to confront offenders. The fact of the matter is that in the context of economic disruption, the multiplicity and proliferation of criminal labels—driven by pragmatism—undermine economic development, as they cause confusion and fear of prosecution among investors due to the abundance of legal provisions, leading them to hesitation; whereas adherence to clear and transparent laws fosters trust and encourages investment. Furthermore, the notion of growth and development is meaningless without consideration for judicial security. This can only be achieved when fundamental principles such as the independence of the judiciary, judicial independence, and timely adjudication are taken into account. However, in many instances, populist approaches and practices based on the scapegoat theory lead to the neglect of these principles.

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