Comparative Studies in Jurisprudence, Law, and Politics

In international multimodal transport documents of goods, despite the recognition of the unified liability of the multimodal transport operator, contrary to the principle of full compensation for damage, the scope of the operator’s liability is subject to specific limitations. Based on the value of the cargo and with due regard to the place where the damage occurs, the extent of liability for compensating the incurred loss is determined. Nevertheless, the parties to the contract of carriage may, by stipulating Paramount and Kaspiana clauses or by entering into agreements concerning the limitation of liability, modify the scope of liability in respect of potential future damages, provided that the level of liability does not fall below the minimum threshold prescribed in the multimodal transport convention as the governing law. Furthermore, the scope of liability of servants, agents, and representatives of the multimodal transport operator is determined in accordance with the international convention governing unimodal carriage of goods; however, the parties to the contract of carriage may, by stipulating a Himalaya clause, determine the scope of liability of these persons by agreement, thereby extending the limitations of liability to all persons involved in the multimodal transport of goods.

Crimes against public morality are of particular significance due to their infringement upon both the material and immaterial aspects of human life. Accordingly, Iran’s criminal policy, following Islamic criminal policy at the levels of theory and legislation, has addressed such crimes with the utmost severity and has prescribed heavy punishments for them. However, at the level of implementation, the approach of both criminal policies in dealing with these crimes—during prosecution, investigation, proof, and enforcement of punishment—stands in contrast to the strictness of the policy at the evidentiary and substantiation stage. In the adjudication process, a policy of concealment of the offense (crime-covering) is recommended and favored. Consequently, a category of offenses has been criminalized under the title of crimes against public morality. In Iranian law, crimes against public morality are divided into two categories: hudūd crimes against public morality, for which specific punishments are prescribed under Islamic law, and taʿzīr crimes against public morality. Taʿzīr crimes against public morality are, in fact, criminal behaviors occurring in the context of unlawful sexual relations that do not fall within the scope of hudūd punishments. This study was conducted using a descriptive–analytical method, and the findings indicate that, with respect to crimes against public morality, an examination of the relevant legal provisions in Iranian legislation and judicial practice reveals that the legislature’s general policy—following Islamic teachings—emphasizes concealment of the offense and the use of institutions such as enjoining good and forbidding wrong, as well as crime prevention. At the same time, in its legislative criminal policy, it has adopted a punitive and repressive approach, which is not fully aligned with the judicial criminal policy that tends toward leniency and forbearance through the application of sentence mitigation. As a result, Iran’s criminal policy in combating crimes against public morality requires review and reform from various perspectives. Judicial practice in punishing crimes against public morality generally follows and is subordinate to the legislative criminal policy and the Islamic Penal Code enacted in 2013, except in certain cases where interpretations and opinions issued by judges and the General Department of the Judiciary do not conform to the prevailing criminal policy. Nevertheless, in determining which of these two approaches or policies should prevail in the issuance of judgments, the circumstances surrounding the commission of the crime are decisive, and the determination rests with the judge. Accordingly, the legislator has, in various provisions of the Penal Code, clarified the punishments for crimes against public morality and enumerated all conditions for their realization so that judges do not encounter difficulties in legal inference and so that the full rights of victims in this regard are duly safeguarded.

The Administrative Justice Court, as the most important specialized judicial authority for examining complaints, grievances, and objections of citizens against the decisions and actions of governmental and public bodies, plays a fundamental role in guaranteeing citizens’ rights and realizing the rule of law within the Iranian legal system. From a theoretical perspective, this institution is expected to function as an effective mechanism for controlling administrative power, preventing arbitrariness by executive authorities, and restoring violated citizens’ rights. However, empirical assessments indicate that the Court’s performance does not always fully correspond to this ideal function. The central issue of this research is the pathology of the role of the Administrative Justice Court in guaranteeing citizens’ rights, with a focus on institutional deficiencies and procedural inefficiencies. The main research question is which factors within the structure, competences, and procedures of the Court have weakened its effectiveness in providing meaningful protection for citizens’ rights, and what consequences these shortcomings have entailed for public trust and the rule of law. The research method is descriptive–analytical and is based on the examination of statutory documents, judgments, and judicial practices of the Administrative Justice Court, the viewpoints of public law doctrine, and a limited comparative analysis with certain advanced administrative law systems. The data have been analyzed through library-based sources and qualitative content analysis. The findings indicate that factors such as limitations on the Court’s supervisory jurisdiction, ambiguity in adjudicative standards, excessive length of proceedings, lack of uniformity in judicial practice, weakness in the enforcement of judgments, and susceptibility to administrative considerations constitute the most significant obstacles to the Court’s effective fulfillment of its role in guaranteeing citizens’ rights. In practice, these shortcomings have led to a decline in the efficiency of judicial protection and a weakening of citizens’ sense of legal security. The conclusion of the study suggests that reforming the role of the Administrative Justice Court requires a simultaneous reconsideration of its institutional structure and judicial procedures. Finally, the research recommends that through expanding the Court’s competences, strengthening judicial independence, enhancing procedural transparency, expediting adjudication, and improving the enforcement of judgments, the conditions for a more effective fulfillment of the Court’s role in guaranteeing citizens’ rights can be achieved.

The Law on the Reduction of Ta‘zir Imprisonment Sentences, enacted in 2020, can be regarded as one of the most significant legislative developments in Iran’s criminal justice system in line with the policy of deincarceration. Through extensive amendments to the scope and manner of imposing ta‘zir punishments, the expansion of alternatives to imprisonment, and the limitation of imprisonment-centered sanctions, this law seeks to reduce the prison population and enhance the effectiveness of penal responses. Deincarceration, as one of the contemporary approaches in criminal justice, is premised on the assumption that imprisonment not only lacks a rehabilitative function in all cases but, in many instances, exacerbates criminal behavior and imposes substantial social and economic costs. The main issue addressed in the present study is the analysis of the legislative and judicial consequences of implementing the Law on the Reduction of Ta‘zir Imprisonment Sentences in light of the deincarceration policy. More specifically, the study examines whether the reforms envisaged in this law have contributed to the realization of deincarceration objectives at the levels of legislation and judicial practice, or whether legal challenges and ambiguities have hindered the full achievement of this policy. In addition, the effects of this law on judicial discretion, the uniformity of judicial practice, and the guarantee of the principle of proportionality between crime and punishment are examined. The research method adopted in this study is descriptive–analytical and based on documentary analysis. The data were collected through the examination of statutes, legislative deliberations, judicial decisions, advisory opinions, and the views of criminal law doctrine, and were evaluated using qualitative analysis. The findings indicate that, at the legislative level, the Law on the Reduction of Ta‘zir Imprisonment Sentences represents a positive step toward institutionalizing the deincarceration policy; however, at the implementation stage, it faces challenges such as divergent judicial interpretations, lack of coherence in judicial practice, and certain legislative gaps. Finally, it is suggested that the effective realization of the deincarceration policy in Iran’s criminal justice system can be facilitated through the formulation of clear judicial guidelines, specialized training for judges, and the amendment of certain ambiguous provisions.

The principle of freedom of trade, as one of the fundamental foundations of contemporary economic and legal systems, plays a decisive role in creating a secure, transparent, and predictable environment for economic activities. In free trade zones, this principle—through the reduction of administrative interventions, facilitation of the flow of capital, goods, and services, and the guarantee of contractual freedom—provides an appropriate framework for attracting domestic and foreign investors. In Iran’s legal system, free trade zones have been designed with the objectives of economic development, increasing non-oil exports, and technology transfer, and the principle of freedom of trade is considered one of the governing legal pillars of these zones. The main issue addressed in the present study is the extent to which the principle of freedom of trade, within the framework of the laws and regulations governing Iran’s free trade zones, has been able to ensure the legal security of investors, as well as the challenges that impede the full realization of this principle. Regulatory instability, conflicts between mainland laws and free zone regulations, and interventions by multiple institutions are among the factors that may weaken the effectiveness of this principle and negatively affect investor confidence. The research method employed in this study is descriptive–analytical and based on documentary research. Data were collected through an examination of the laws and regulations governing Iran’s free trade zones, upstream policy documents, relevant judicial decisions, and comparative analysis with certain successful legal experiences. The primary research tools consisted of legal note-taking and content analysis of legal texts and legal doctrine. The findings indicate that the principle of freedom of trade, if implemented coherently and accompanied by legislative and judicial stability, can play an effective role in ensuring the legal security of investors; however, weaknesses in enforcement guarantees, frequent regulatory changes, and a lack of institutional coordination have reduced its practical effectiveness. Finally, the study proposes that by strengthening regulatory stability, clarifying the limits of governmental intervention, harmonizing free trade zone laws with macroeconomic policies, and enhancing judicial protections, the conditions for the effective realization of the principle of freedom of trade and the enhancement of investors’ legal security can be achieved.

Contractual freedom, as one of the fundamental principles of private law, plays a significant role in regulating individuals’ legal and economic relations; nevertheless, this freedom is subject in all legal systems to certain limitations aimed at preventing the imposition of unjustified harm and ensuring contractual justice. In Imami jurisprudence, the principle prohibiting harm to others is embodied in the no-harm rule (qāʿidat lā ḍarar), which, as a governing rule, makes it possible to restrict the effects of contractual intent where appreciable harm occurs. The main issue of this research is to explain how the no-harm rule affects the limitation of contractual freedom and to comparatively examine its function in Imami jurisprudence, Iranian law, and French law. The objective of the study is to analyze the foundations and scope of application of the no-harm rule in Imami jurisprudence and to identify its reflections and functional equivalents in the legal systems of Iran and France by employing a functional comparative approach. The research method is descriptive–analytical, and the data have been collected based on jurisprudential sources, statutory laws, judicial practice, and legal doctrine. The findings indicate that in Imami jurisprudence, the no-harm rule fundamentally, though exceptionally, limits contractual freedom, and the mere consent of the parties does not by itself justify harmful contractual outcomes. In Iranian law, although this rule is only limitedly articulated in ordinary legislation, it is applied through principles such as Article 40 of the Constitution, public order, and the prohibition of abuse of rights. In French law, although there is no general and unified rule equivalent to the no-harm rule, the prohibition of abuse of rights, as the most significant analogous and corresponding institution to the no-harm rule, plays a central role in controlling the manner of exercising contractual rights and preventing unjustified harm. Overall, a functional convergence can be observed among the three legal systems in limiting contractual freedom in order to prevent unjustified harm, although the theoretical foundations and methods of applying these limitations differ.

The interpretation of legal and jurisprudential texts is not confined solely to the explicit denotations of words; rather, many rulings and legal norms are inferable from indirect meanings, particularly from the argument a contrario (mafhum-e mokhalef). This article, adopting an analytical–descriptive approach, examines the validity and interpretive status of indirect meanings in jurisprudential and legal texts and seeks to clarify the scope of their probative authority and practical application. It begins by explicating the concepts of explicit meaning (mantūq) and implicit meaning (mafhum), followed by an analysis of the positions of legal theorists regarding the probative force of the argument a contrario, identifying three principal approaches: absolute validity, absolute invalidity, and the differentiated (conditional) approach. The findings indicate that the existing dispute is largely minor-premise-based, concerning the verification of the exclusive causal role of the qualifying condition, rather than the fundamental legitimacy of the concept itself. Subsequently, the status of the argument a contrario in Iranian positive law is analyzed with particular emphasis on the cautious interpretive theory of Katouzian, and the three jurisprudential, historical, and rational criteria for its validity are articulated. The results demonstrate that indirect meanings—provided that the qualifying condition is established as the exclusive cause of the ruling and that no conflict exists with the general principles of the legal system—constitute an effective instrument for remedying legislative gaps, imposing reasonable limitations on legal norms, and achieving judicial justice. Ultimately, it may be concluded that the differentiated and conditional approach represents the most logical and efficient foundation for employing indirect meanings in the interpretation of jurisprudential and legal texts.

Conflicts of evidence in the science of principles of jurisprudence are among the most important and complex issues in analyzing manifestations and discovering the serious intention of the legislator. Although the Usul tradition has provided rules for the preference of manifestations in the general and specific, absolute and restricted, and conflicting reports sections, an independent and systematic section that monitors all types of evidence (verbal, current, status, verbal, etc.) in the form of a hierarchical system has not been compiled. This research, with the approach of "Principles of Contemporary Jurisprudence" and based on the six-axis typology of evidence - origin (legal, rational, customary, sensory), power of influence (definite and presumed), form (literal, non-literal), connection and separation (connected, disconnected), semantic function (usage, specific, concept, personal, typical), and jurisprudential application (contextual and complementary) - seeks to design a hierarchical system to resolve the conflict of evidence. The main innovation of the research is in adding the axis of jurisprudential application as the connection point of the axes and designing a step-by-step algorithm to systematize the preference process; an algorithm that first resolves the unstable conflict with the customary plural and then, in the event of a conflict, the preference rules are applied based on the levels of authority, the potentiality of emergence, rational and religious preferences, and the contextual/complementary ratio. The findings show that this multi-layered framework not only elevates the conflict of evidence from the level of personal preferences to the level of scientific rules, but also has the ability to adapt to complex jurisprudential and contemporary issues.