A Comparison of the Theory of Conflict of Conditional Obligations in Legislation with Other Theories (In the field of legislation based on secondary titles)

Document Type : Original Article

Author

Associate Professor, Department of Philosophy of Jurisprudence and Law, Research Center for Jurisprudence and Law, Islamic Sciences and Culture Academy, Qom, Iran.

Abstract

The theory of "conflict of conditional obligations in legislation" is about the scope and rules of legislation based on secondary titles. According to this theory, it is wajib (obligatory) in legislation that the rulings of Islam (including permissible, obligatory and status) and the goals of religion and the purposes of Sharia need to be all considered; that is, it is the condition of correctness, and is considered as the conditional obligation in legislation. These conditional obligations may conflict with each other, and it is in this conflict that the legislature finds the permission of legal silence or the permission of legislation contrary to the religious ruling. In the present article, this theory is compared with other theories in this regard, their commonalities and differences are described in detail, and through this comparison, the author has both explained the independence of the theory of the conflict of conditional obligations in legislation based on those theories, and has clarified the scope and rules of legislation based on secondary titles according to these theories. The proof of this theory has already been explained in the paper The Theory of Conditional Obligations in Legislation and here it is only compared with other theories. The method of this comparison is analytical and based on library sources. The result of this paper is a detailed explanation of the scope and rules of legislation and legal silence based on secondary titles, and it can be applied in the legislative system of the Islamic Republic of Iran  , regarding the duties of the Guardian Council and the Expediency Discernment Council in legislation.

Keywords

References

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History

  • Receive Date: 18 September 2021
  • Revise Date: 17 December 2021
  • Accept Date: 17 March 2022

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