نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشآموخته دکتری حقوق خصوصی، دانشکده حقوق و علوم سیاسی، دانشگاه تهران، تهران، ایران
2 دانشیار گروه حقوق خصوصی و اسلامی، دانشکده حقوق و علوم سیاسی، دانشگاه تهران، تهران، ایران
کلیدواژهها
عنوان مقاله English
نویسندگان English
1. Introduction
The Golden Rule of ethics, which states: "Do unto others as you would have them do unto you," because of its two fundamental elements of rational consistency and empathy arising from imagination and role reversal, has the potential to establish order and justice in human relations. Therefore, it can play a role in a legal system whose ultimate goal is to ensure order and justice. On the other hand, given the deep and extensive normative connections and shared goals between the legal system and the ethical system, the question arises: what is the role and position of the Golden Rule in the legal system? How can this rule be implemented in the legal system? And what are the effects of its implementation in the legal system?
2. Literature Review
The only article that has examined from a legal perspective the Golden Rule is Neil Duxbury's «Golden Rule Argument, Moral and Legal Judgment» published in 2009. In this article, the Golden Rule is described as a principle of fairness, and various forms of Golden Rule arguments in criminal cases and issues such as euthanasia and abortion are examined. However, there is no record of a legal review of this rule in the Iranian legal system. Therefore, this study aims to clarify the role and position of the Golden Rule within the legal system by examining its characteristics and comparing them with the features of the Iranian legal system.
3. Methodology
This research adopts a qualitative approach. Its sources have been gathered through a library method, and the research is organized into three parts based on a comparative analysis of reputable books and top-tier articles. In the first part, to examine the interaction of the Golden Rule with the legal system, the characteristics of this rule compatibale with the legal system are first examined. Then, considering that the Golden Rule is one of the fundamental ethical principles, the types of interactions between the ethical system and the legal system are examined, and finally, the relationship between the Golden Rule and the evolution of natural law is discussed. In the second part, based on the interaction of the Golden Rule with the legal system, its role and position as a general legal principle are examined, and for this purpose, while defining the general legal principle, its characteristics are compared with the Golden Rule, and its position as a general legal principle in the legal system is explained. In the third part, the effects of applying the Golden Rule as a general legal principle in the form of individualizing punishment principle and the principle of reasonableness in modern contract law are examined.
4. Results and Discussion
The Golden Rule is an ethical principle with a social dimension. Its application affects not only an individual's life but also the lives of others and regulates social relations within a community. Its normative dimension, similar to a legal system, involves preventing harm to others and refraining from using them instrumentally for personal gain, as well as managing limited social resources. Human desires for power and for social and financial prestige often lead individuals to exploit one another for personal interests, infringe on each other's rights, and prevent them from having simultaneous access to limited social resources. This rule plays a role in the legal system due to its social and legal consequences, not just its ethical implications. It can be argued that it serves as a suitable tool for recognizing fundamental human rights and needs and extending them to others, aiding the legal system in this regard.
The element of imagination and consistency of this rule, consisting of two principles―conscience (the alignment between behavior and an individual's desire for correct behavior) and impartiality (similar evaluation in similar cases, regardless of the individuals
involved)―lead to the use of shared human data and information or customary understanding, its application to others, and, ultimately, the alignment of natural human rights with the social environment, making them enforceable in positive law. As a general legal principle, it possesses an ideal and ethical nature, unbound by specific borders, geography, culture, or religion. Due to its element of consistency, it enjoys rational acceptance. With its imaginative element, it is abstract and concerned with the realm of existence rather than proof. The application of this rule within the legal system serves as the basis for existence and justification of legal rules and judicial decisions. Of course, the role of the Golden Rule as a legal principle in the legislative phase differs from its role in the judicial phase.
1. In the legislative phase, it is considered an independent source of the legal system, and the validity of rules is measured by it. At this stage, the legislator seeks to discover the customary understanding and direct perception common to human beings for legislation, which is directly obtained through the application of the Golden Rule.
2. In the judicial phase, it is used as a complementary source to interpret the law narrowly or broadly and suppliment it in cases of silence, deficiency, ambiguity, and contradiction.
5. Conclusion
Applying the Golden Rule in the legal system ensures its rationality and efficiency because the Golden Rule requires legislator and judge to act consistently toward citizens in similar situations, and it reduces concerns about public compliance with laws and judgments. Adhering to the Golden Rule during the enactment of laws and judicial decisions convinces people to comply with the relevant law or judgment.
This is not necessarily due to the presence of punishment, but rather to an internal motivation arising from improved attitudes and perspectives. In fact, applying the Golden Rule in the legal system contributes to its socialization. The concept of socialization from an anthropological perspective is related to the Golden Rule because, according to the Golden Rule, humans are considered beings with common ways of thinking, feeling, valuing, and shared behavioral norms.
In a word, applying the Golden Rule as a general principle in the legal system brings the two concepts of metaphysics and reality closer together. Thus, applying the golden rule in the form of the "principle of individualization of punishment" in criminal law, causes the legislator, trial judge, and execution judge, when determining and executing punishment, to put themselves in the place of the offender, with the same personal and social limitations, and to impose and execute punishment more appropriately and realistically, thereby better achieving the goals of criminal law of preventing recidivism, ensuring proportionality between crime and punishment, and administering real justice. Similarly, applying this rule in the form of the "principle of reasonableness" in modern contract law suppliments and clarifies the contract, invalidates unfair and unrealistic terms, and brings it closer to the actual circumstances of the parties. Applying this rule in the form of the "reasonable person" standard in fault-based civil liability law causes this standard to change from an objective and unrealistic form based solely on consideration of the harmful conduct to one focused on the decision-making process of the person causing the harm when there is a conflict and lack of coordination between that person’s plans and priorities and those of the victim, thereby turning it into a more realistic and efficient standard for determining fault-based civil liability.
کلیدواژهها English
