The Position of a Contrario Sensu of Description in the Principles of Shieh Jurisprudence and Iranain Civil Law

Jafarzadeh, Mirghasem; Hosseinpour Sharafshad, Iman

doi:10.22054/jplr.2022.39874.2121

Document Type : Research Paper

Authors

¹ Associate Professor, Department of Private Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran

² Ph.D. Student, Department of Private Law, Mazandaran University, Babolsar, Iran,

https://doi.org/10.22054/jplr.2022.39874.2121

Abstract

In this research it is shown that attributing a contratio sensu to a description used by the legislator when providing legal rules is much debatable among Islamic Law Schoolars. The same debate seems to exist among Iranian legal writers. The detailed examination of this research does also show the fact that when justifying a contratio sensu for description, some scholars in Sheih Jurisprudence are of the opinion that in order to prove such implied indication for description it should be an exclusive causal link between description used and the express contemplated Legal rule. In contrary to this view, it is suggested by the writers that it would suffice if it is proved that there is definite causal link between the description used and the legal rule provided by express language.
Likewise, althohgh the result is chalangeable in the Principles of Sheih Jurisprudence, it can suggsseted by confidence that such Sensu can be attributed to the Iranian Civil Law Lawmakers in most of cases. This view can be justified by various aruments such as the usual intention of the authority using such language to provide legal rules, normal perception of the addressed persons, reasonable meaning of the texts used by the legislator, constant precedents of the reasonable persons, the reasonability of the legislator, the principle of the necessity of generality in providing the legal rules and the usual use of such language in providing legal rules.
Based on this suggestion and in order to identify what kind of description could result into a contratio Sensu or not, the description used in law texts, shall be divided into an indicative which has a contratio Sensu or an explanatory which has not. It shall also be divided into a description which is used to describe the subject-matter and the one which describes the legal rule. In the first case it has not a contratio Sensu and in the second one has. Finally, it is also shown that "the description used in the law texts, has in principle a contratio Sensu, unless it is proved to be an explanatory, or subject matter-conditioning or has no causl linkage with the legal rule provide by exress language."

Keywords

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Private Law Research

The Position of a Contrario Sensu of Description in the Principles of Shieh Jurisprudence and Iranain Civil Law

References

References

Volume 11, Issue 40
January 2023
Pages 9-38

The Position of a Contrario Sensu of Description in the Principles of Shieh Jurisprudence and Iranain Civil Law

References

References

Volume 11, Issue 40January 2023Pages 9-38

Volume 11, Issue 40
January 2023
Pages 9-38