Localization of legal institutions with an Islamic approach مقاله

خلاصه ماشینی:

" In this article, by assuming the principle of utilizing legal institutions from other legal systems, we attempt to examine and analyze the localization method, especially in light of the Islamic legal system. The major question is that, given the fundamental difference in the basis of legitimacy of legal rules in the Islamic legal system compared to other legal systems, can legal institutions from other systems be utilized, and if they can be used, what is the method of adopting and accepting them? " In this writing, by assuming the principle of utilizing foreign legal institutions in Islamic law, we address the second question and, in fact, the method of localizing a legal institution. The jury exclusively determines the subject matter, and the judge, upon recognizing the ruling, proceeds to issue the verdict; however, this situation does not exist in the judicial structure and discussions of the Islamic legal system. For example, when the Islamic legal system encounters the institution of intellectual property and intends to express an opinion regarding moral rights, knowing the foundation will be very effective in analysis and expression of opinion. Of course, the existence of such an institution in the accepting system has merely a coordinating role and perhaps, to use a better expression, an educational role; and based on it, one cannot proceed to the derivation of a ruling unless the legitimacy of the theory can be obtained from the foundations and sources of Islamic law through evidence. Although adopting such a subject is not problematic, what matters is examining the legitimacy of such institutions in Islamic law.