Document Type : scientific
Authors
1
Associate Professor, Department of Theology Education, Farhangian University, Tehran, Iran.
2
PhD Student, Department of Jurisprudence and Law, University of Mazandaran, Mazandaran, Iran.
3
Master’s Graduate in Private Law, Ferdowsi University of Mashhad, Mashhad, Iran.
4
Assistant Professor, Department of Islamic Theology Education, Farhangian University, Tehran, Iran.
Abstract
The rule of “prohibition of detriment or no harm and no harassment” (Arabic: لا ضَرَر و لا ضِرار, Romanized: Lā Ḍarar wa Lā Ḍirār) is one of the widely used topics under the discussion of “balancing two rights” or “reconciling two rights.” In fact, balancing two rights is a civil jurisprudential rule invoked to prevent harm, although jurists have not presented it as an independent jurisprudential rule. The reconciliation of two rights is proposed as a solution to prevent harm, which is the reason for the supremacy of the rule “no harm” over other jurisprudential rules, as reason also dictates this. Additionally, it finds application in various chapters of jurisprudence and law, such as in contracts of sale (Arabic: اَلْبَیْع, Romanized: al-bayʿ), insolvency, Mahr (Arabic: مهر) or Ṣidāq (Arabic: صِداق), liability (Arabic: ضَمان, Romanized: ḍamān), pre-emption (Arabic: اَلْشُّفْعَة, Romanized: al-shufʿah), and so forth. In this article, the researchers aim to examine the most important reasons for reconciling two rights using a descriptive-analytical method, accompanied by references to the sources of legal scholars and the opinions of Imāmiyya jurists. Based on these reasons, the discussion addresses various aspects of the rule of reconciling two rights, along with its functions and examples in civil and criminal matters. This is particularly relevant in situations where a conflict arises between the rights of two individuals, and there is no possibility of prioritizing one over the other; in such cases, the rights of both parties are reconciled due to the principle of non-harm, as harm is negated in Islam.
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