The Encyclopedia of Comparative Jurisprudence and Law

The Istisnaʿ contract, as one of the significant instruments in Islamic commercial jurisprudence and Islamic finance, has assumed an increasingly prominent role in legal and economic systems in recent years. This study was conducted with the aim of comparatively analyzing the juristic and legal nature of the Istisnaʿ contract within the Iranian legal system and examining its economic functions. Within this framework, the theoretical and jurisprudential foundations of the contract were first explained based on authoritative Persian, Arabic, and comparative sources. Subsequently, employing a descriptive–analytical method and content analysis of legal documents and previous studies, the essential elements, conditions, juristic disagreements, and legal foundations of the contract were examined, and its economic principles and practical functions were analyzed. The findings indicate that despite certain differences of opinion within Islamic jurisprudence, Istisnaʿ enjoys a reliable jurisprudential foundation and is capable of being aligned with the general principles of contract law within the Iranian legal system. Furthermore, the economic analysis demonstrated that, by facilitating installment-based payments, reducing transaction costs, and improving liquidity management, this contract can serve as an effective financing instrument for projects. Comparative examination also reveals that countries such as Malaysia and Jordan have facilitated broader utilization of this contract through the adoption of precise implementing regulations. Finally, the study concludes that Istisnaʿ possesses considerable legal and economic capacities, and its further development in Iran requires more comprehensive regulations and greater standardization within the banking and contractual sectors.

Multimodal transport of goods in international trade, due to the simultaneous or successive integration of multiple modes of carriage, requires a coherent legal regime governing the liability of the transport operator. The principal challenge in this field is determining the legal basis and liability regime applicable under international multimodal transport documents. The governing international instruments, including the United Nations Convention on International Multimodal Transport of Goods (1980), the ICC Uniform Rules for a Combined Transport Document (1975), the UNCTAD/ICC Rules for Multimodal Transport Documents (1992), and the FIATA Multimodal Transport Bill of Lading, have each sought to strike a balance between the protection of consignors, the efficiency of international trade, and the limitation of the carrier's liability. In the law of international multimodal transport, three principal models have been discussed: the “uniform system,” the “network system,” and their modified forms. At present, modified versions of both the uniform and network liability systems have attracted considerable attention among parties involved in the transportation process within international multimodal transport documents. Adopting a descriptive–analytical approach, this article examines the presumed liability of the transport operator as the basis of liability and clarifies the operator's legal status. Accordingly, where loss of or damage to goods occurs during the period between receipt and delivery, liability is presumed to rest with the transport operator, who may be exonerated only by proving the existence of legally recognized grounds for exemption. This position, although contrary to the apparent wording of the International Multimodal Transport Convention, is supported by reference to the spirit underlying the Convention and established commercial practice. The resulting shift in the burden of proof reflects economic, professional, and protective considerations embedded in liability rules and constitutes an effective mechanism for the equitable allocation of risk.

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.

Fraud upon the law, as one of the exceptions to the application of conflict-of-laws rules, has consistently created serious challenges in relations between the state of origin (whose law has been circumvented) and the destination state (whose law has been applied). Nevertheless, the legal status of the effects of such fraud in a “third state,” acting as the authority for the recognition and enforcement of foreign judgments, has received far less scholarly attention. Using a descriptive-analytical method, this article seeks to answer the question of how a judge in a third state should respond when confronted with acquired rights resulting from a fraudulent act. The findings indicate that the third state fluctuates between two competing imperatives: preserving the international validity of judgments and safeguarding international public policy in combating fraud. Although, according to the classical theory, fraud corrupts everything, within the jurisdiction of a third state there appears to be a tendency toward the relativity of the effects of fraud. In this regard, the present article proposes that the third state should adopt a differentiated approach by distinguishing between fraud directed against internationally mandatory rules and fraud directed against domestic laws. Furthermore, where an abuse of rights by the litigating parties is established, the third state should refrain from granting effect to acquired rights arising from fraud, in order to prevent its jurisdiction from becoming a safe haven for the legitimization of fraudulent acts.

Defects of consent refer to particular circumstances that undermine the validity or diminish the effectiveness of intention and consent, and consequently affect the validity of the contract itself. This study examines the examples and effects of defects of consent in Iran, England, and Egypt through a descriptive, analytical, and comparative method. The findings indicate that duress and mistake are recognized as the two principal defects of consent in all three legal systems under study. Fraudulent misrepresentation is explicitly recognized as a defect of consent in English and Egyptian law; however, in Iranian law, it may implicitly be regarded as a defect of consent. Undue influence is considered an independent category of defect of consent in English law, whereas in Iranian and Egyptian law some of its manifestations may be treated as forms of duress and therefore classified as defects of consent. The effect of duress in all three jurisdictions is the possibility of annulment. The general effect of mistake in English law is nullity, whereas in Iranian and Egyptian law a distinction must be drawn between different types and situations of mistake. Fraudulent misrepresentation is not formally categorized as a defect of consent in Iranian law; nevertheless, due to its close relationship with mistake, it substantively results in impairment of consent. The possibility of claiming damages in cases of fraudulent misrepresentation under English law, as well as the imposition of limitations on actions arising from defects of consent in Egyptian law, may constitute practical solutions capable of application within the Iranian legal system regarding defects of consent.

The expansion of artificial intelligence in recent decades has introduced new transformations across numerous fields of knowledge, including Islamic jurisprudence and ijtihād. Scientific authority in Islamic jurisprudence refers to the position of producing, evaluating, and directing juridical knowledge by jurists and scholarly institutions; a position historically founded upon human ijtihād, mastery of religious sources, and the capacity for legal inference. The entry of artificial intelligence systems into the domain of analyzing religious texts, retrieving jurisprudential data, and even generating quasi-fatwā responses raises the question of how the future of scientific authority in Islamic jurisprudence will be influenced by this technology. The principal issue addressed in the present study is the extent to which artificial intelligence can transform the traditional roles of scientific authority in Islamic jurisprudence and what opportunities and threats may emerge in this process. In addition, the study examines what form of jurisprudential and scientific regulation is necessary to preserve the authenticity of ijtihād while simultaneously benefiting from technological capacities. The research method employed in this study is descriptive–analytical with an interdisciplinary approach. Data were collected through library research, analysis of jurisprudential texts, review of scientific literature related to artificial intelligence, and examination of existing experiences in intelligent religious systems. The tools utilized included scientific databases, text-analysis software, language-based artificial intelligence systems, and comparative analysis of jurisprudential viewpoints. The findings demonstrate that artificial intelligence can provide opportunities such as accelerating access to jurisprudential sources, strengthening ijtihād-based research, enabling extensive textual analysis, and enhancing the efficiency of seminary research. Conversely, threats such as the weakening of traditional authority, the possibility of errors in machine-based legal inference, epistemic dependence on algorithms, and the emergence of illegitimate fatwās are also conceivable. The investigation further indicates that the existing literature has paid insufficient attention to establishing a coherent jurisprudential framework for governing the application of artificial intelligence in the fields of fatwā and ijtihād, reflecting a significant research gap. Based on the findings, it is suggested that a framework for the jurisprudential regulation of intelligent technologies be developed, that the supervisory role of jurists over intelligent systems be reinforced, and that artificial intelligence be employed primarily as a supportive instrument for ijtihād rather than as a substitute for it.

This study was conducted with the aim of examining the structural challenges of penal populism within the criminal justice system, with a particular emphasis on the adjudication of economic crimes. The research employed a descriptive–analytical method and relied on library-based data collection through the examination of legal sources, statutes, scholarly articles, and criminological studies. The findings indicate that the growing social sensitivity toward corruption and economic crimes has, in some cases, led to the emergence of reactionary approaches in criminal policy and the establishment of special mechanisms for addressing such offenses. Among the most significant manifestations of this situation are the creation of special courts for economic crimes and the adoption of exceptional measures aimed at accelerating judicial proceedings. Although the objective of these mechanisms has been to effectively combat economic corruption and respond to public demands, in certain instances the use of exceptional procedures, concentration of powers, and restriction of some procedural safeguards have created challenges for the fundamental principles of fair trial. The results of this study demonstrate that effective confrontation with economic crimes requires establishing a balance between the efficiency of the criminal justice system and adherence to the principles of fair proceedings. Accordingly, moving toward a rational and evidence-based criminal policy, strengthening ordinary and specialized judicial institutions, and simultaneously paying attention to preventive and structural solutions alongside penal responses may contribute to reducing the negative effects of penal populism in the adjudication of economic crimes.

The legal dispute resolution system among executive agencies is one of the fundamental elements in realizing efficient, transparent, and law-governed administration within the system of public law. In administrative law, such disputes mainly arise from ambiguity and conflict in laws and regulations, overlap in duties and competences, weak institutional coordination, and the absence of coherent procedures; they may lead to the waste of public resources, prolonged decision-making, and reduced governance efficiency. This article, adopting a descriptive-analytical and interdisciplinary approach within the fields of public law and the economic analysis of law, and relying on library sources, laws and regulations, and administrative and judicial practices, examines the strengths and weaknesses of the existing dispute resolution system among executive agencies. The findings indicate that the institutional fragmentation of authorities, ambiguity in jurisdictional boundaries, weak enforcement guarantees, lack of coordination among certain regulations, and insufficient attention to the economic process of administrative disputes are among the main factors contributing to the inefficiency of the current situation. Drawing on the principles of the Constitution, the Seventh Five-Year Development Plan of the Islamic Republic of Iran, the Law on the Administrative Court of Justice, and the related regulations, the article identifies the characteristics of a proposed integrated model based on the functional differentiation of disputes, the strengthening of a central dispute resolution institution within the executive branch, and the purposeful use of alternative dispute resolution methods. The establishment of such a model can contribute to strengthening the rule of law and increasing governance efficiency by reducing the direct and indirect costs of litigation, accelerating decision-making, and enhancing institutional coordination.