A New Attitude to Economic Analysis of Law in light of Jurisprudence Rule of System Disorder Negation

Document Type : Original Article

Authors

1 Department of Islamic and Private Law, Faculty of Law and Political Science, Shiraz university, Shiraz, Iran

2 Department of Islamic and Private Law, Faculty of Law and Political Science, Shiraz University, Shiraz, Iran

Abstract

Economic analysis of law is a theory that evaluates and corrects legal regulations by using economic tools, considering efficiency as it’s main goal. Reviewing some of the critiques, raises doubts about the possibility of utilization of it’s whole achievements in Islam. Despite some efforts to prove the theory on the basis of pure rational propositions and jurisprudence rule of expediency, those reasons cannot prove the theory totally. The important question that hasn’t yet been answered, is that can any foundation be found in Islamic jurisprudence that proves it totally? This article has been written on the basis of this necessity, proving the impossibility of concluding the totality of the theory from Islamic jurisprudence. It also presents, for the first time, a new attitude in light of the rule of system disorder negation. Although, it seems difficult to admit the possibility of correcting Islamic verdicts in order to gain private utility as a general rule, but if the inefficiency of verdicts or lack of them creates disturbance in economic subsystem’s interests in a big scale, lifting inefficient verdicts or issuing efficient ones will be allowed but necessary, because governmental verdicts, based on economic system disorder negation, are prior to primitive and secondary verdicts. Economic analyzing of Islamic rulings in order to preserve general interests is permissible just in cases of contradiction with governmental economic expediencies, it is also reliable as long as expediency necessitates and it doesn’t appose stronger expediencies. so it has a more restricted domain compared to the theory.

Keywords

References

  • Abdali, Mehrzad, An Introduction to the Philosophy of Law and Legal Theories, Majd, Ch II, Tehran, 2009

- Dehkhoda, Ali Akbar, Dictionary, Tehran University Press, Tehran, Ch. 1, 1998

-Russell, Bertrand, Our Knowledge of the Outer World, translated by Manouchehr Bozorgmehri, Tehran, translated and published by Kitab, Vol. I, 1980

-Shawl, Steven, Foundations of Economic Analysis of Law, translated by Mohsen Ismaili, Research Center of the Islamic Consultative Assembly, Vol. 1, 2009

-Sharifzadeh, Mohammad Javad, Law and Economics in Islam, Imam Sadegh University, Tehran, Vol. 1, 2012

-Katoozian, Nasser, Introduction to Law and Study in the Iranian Legal System, Anteshar Co., Tehran, 1992, 2009

-Cody, Nikki, Tobacco boycott in Iran, translated by Shahrokh Ghaem Maghami, Tehran, 1979

-Mohaghegh Damad, Seyed Mostafa, Rules of Civil Jurisprudence, Islamic Sciences Publishing Center, 33, Tehran, 2011

- Motahari, Morteza, Collection of works of Master Shahid Motahari, Sadra, Ch 8, Tehran, 2012

- Mousavi Bojnourdi, Seyyed Mohammad Ibn Hassan, Jurisprudential Rules, Ascension, Tehran, Ch III, 1981

- Mousavi Khomeini, Ruhollah, Sahifa Noor, Ch II, Printing and Publishing, 2000

-Naimi, Seyed Morteza, An Introduction to the Economic Analysis of Law, Mizan Legal Foundation Publications, 2013

 -Abdali, Mehrzad, The Position of Ethics in Economic Analysis of Law, Comparative Law (Mofid Letter), Vol. 82, 2010

- Toogh aghaei, Moslem, Analysis of "Economic Analysis of Law", Comparative Law Studies, Volume 4, Issue 2, 2013

 - Babaei, Iraj, Theoretical Foundations of Legal Economic Analysis Approach, Journal of Legal and Policy Research, 2007

- Badini, Hassan, Philosophical Foundations of Economic Attitude Towards Law, Faculty of Law and Political Science, Vol. 62, 2003

-Badini, Hassan and Abbasi, Somayeh, A Study of the Efficiency of Pure Liability from the Perspective of Economic Analysis of Law, Comparative Law (Useful Letter), No. 1, 2019

- Hozeh and University Research Institute and Ebrahimi, Mohammad, Introduction to Islamic Law, Samat Publications, Tehran, 1989

- Takhiri, Mohammad Ali, the materials of the message and the possibility of its authority, Ahl al-Bayt jurisprudence, vols. 39 and 40, 2004

- Jalili Moghadam, Mojtaba, A Study of Bentham Utilitarianism, Knowledge, Year 19, Issue 159, March 2011

- Jafari Harandi, Mohammad and Arab, Alieh, Ruling on the necessity of maintaining order in the realm of religious rules from the jurisprudential point of view of Islamic religions, Approximate studies of Islamic religions, vol. 33, 2013

- Janati, Mohammad Ebrahim, The place of sent materials and correction in the sources of ijtihad, philosophy and theology, Kayhan Andisheh, 1990

- Haji Azizi, Bijan and Jafari, Faizullah and Blourifar, Mina, Applying economic analysis of law based on intellectual independence and the rule of expediency, Islamic jurisprudence and law, Volume 10, Issue 18, 1398

- Haghpanah, Reza, Government and Province, Andisheh Hozeh Magazine, Vol. 17, 1999

-Khorsandian, Mohammad Ali and Sharaei Elham, Principles of the Rule of Denial of System Disruption in Islamic Jurisprudence and Subject Law, Jurisprudence and Principles of Islamic Law, Year 49, Issue 1, 2016

- Rostami, Mohammadzaman and Rostami, Mohammad Hadi, Explanatory jurisprudential explanation of contracts and stupid activities in macro areas and new economic conditions, Islamic Economics Studies, 13th year, first volume (25 consecutive), 1399

-Rahbarpour, Mohammad Reza, Collection of Articles in Honor of Dr. Abolghasem Gorji, Publication of the Association of Cultural Works and Honors of Iran, 2010.

 - Sharifzadeh, Mohammad Javad and Naderan, Elias, Economic Analysis of Property Rights in Islam: (with Emphasis on the Concept of Exchange Costs), Islamic Economics, Winter 2009

-Fattahi, Seyed Mohsen, The scope of government authority in forging the law from the perspective of jurisprudence, Studies of jurisprudence and Islamic law, Volume 5, Number 9, Fall and Winter 2013

 - Ghasemi Hamed, Abbas and Nawazian, Ali Reza, Theory of Effective Violation of the Contract of Comparative and Critical Study in American Law, Legal Research, Special Issue No. 7, 2011

  -Gawahi, Zahra and Saghafi, Maryam, Jurisprudential-Legal Principles of Government Expropriation, Islamic Economics and Banking Quarterly, Vol. 15, 2016

-Mohaghegh Damad, Seyed Mostafa and Kikhai Farzaneh, Mohammad Amin, Aql in the Basics of Economic Analysis of Law in Comparison with Islamic Law (Based on the Ideas of Allameh Tabatabai), Jurisprudence and Foundations of Islamic Law, Fifty-second Year, Vol. 2020

- Malek Afzali Ardakani, Mohsen, The effects of the rule of maintaining order, Islamic government, the fifteenth year, the fourth year, 2010

-Vakilian, Hassan, The Position of Judicial Procedure and Law as Sources of Law in Legal Doctrine, Quarterly Journal of Public Law Research, Year 19, Issue 58, 2016

 - Har'amli, Muhammad ibn Hassan, Shiite means to study Sharia issues, Beirut, Dar Al-Ahya Al-Tarath Al-Arabi, without date

 -Hali, Abu Mansour Jamal al-Din (Hasan ibn Yusuf ibn Motahar) Hali, The End of Judgments, Ismaili Institute for Printing, Publishing and Distribution, Qom, 1989

 - Al-Zuhaili, Wahba, The contracts of the month in the law of the Emirati civil transactions and the Jordanian civil law, Dar al-Fikr, Damascus, 1987

 - Sheikh Al-Ansari, Morteza Ibn Mohammad Amin, The Book of Al-Makasim Al-Muharram, Al-Bayy and Al-Khayaryat, First Edition, World Congress in Honor of Sheikh Azam Ansari, 1994

  - Tusi, Abu Ja'far Muhammad ibn Hassan, The End in the Single of Jurisprudence and Fatwas, Dar al-Kitab al-Arabi, Second Edition, Beirut, 1980

-Ameli, Zayn al-Din ibn Ali (the second martyr), Al-Rawdha al-Bahiyya in the explanation of the people of Damascus, vol. 3, Qom Seminary Islamic Propaganda Office Publications, first edition, 1991

  - Klini, Abu Ja'far Muhammad ibn Ya'qub, Al-Kafi, Tehran, Islamic Library, 1987

  - Al-Musawi Al-Bajnurdi, Al-Sayyid Hassan, The Rules of Jurisprudence, Nashr al-Hadi, Qom, 1992

 - Al-Musawi Khomeini, Ruhollah, The Rules of Jurisprudence, Ijtihad and Imitation (Al-Rasa'il), Qom, Ismailian Press Institute, 1990

   - Al-Musawi Khomeini, Ruhollah, Book of Purification (I-Hadith), Tehran, Institute for Organizing and Publishing the Works of Imam Khomeini, 1989

   - Naeini, Mohammad Hussein, Minya al-Talib in the margins of achievements, Tehran, Al-Muktabah Al-Muhammadiyah, first edition, Tehran, 1995

Journal of Studies in Islamic Law & Jurisprudence
Volume 14, Issue 28
October 2022
Pages 157-194

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