A Study of Land Acquisition by Municipalities from the Perspective of Islamic Jurisprudence and Law (Book): Difference between revisions
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== Conflict Between Private Rights and Public Rights == | == Conflict Between Private Rights and Public Rights == | ||
In the second section, Rezā Bāghbānī examines the conflict between private law and public law across two chapters. The author clarifies that this conflict is not a fundamental one; rather, it represents a confrontation between the principles of property rights and public rights, determining which takes precedence (pp. 78-79). In the first chapter, he discusses the foundations for the precedence of private law over public law, while in the second chapter, he addresses the foundations for the precedence of public law over private law. After presenting the arguments from both sides, the author ultimately concludes that, based on the principle of justice, the rule of prioritizing the more significant over the less significant, and the precedence of governmental regulations, public law takes precedence over private law (pp. 161-163). | In the second section, Rezā Bāghbānī examines the conflict between private law and public law across two chapters. The author clarifies that this conflict is not a fundamental one; rather, it represents a confrontation between the principles of property rights and public rights, determining which takes precedence (pp. 78-79). In the first chapter, he discusses the foundations for the precedence of private law over public law, while in the second chapter, he addresses the foundations for the precedence of public law over private law. After presenting the arguments from both sides, the author ultimately concludes that, based on the principle of justice, the rule of prioritizing the more significant over the less significant, and the precedence of governmental regulations, public law takes precedence over private law (pp. 161-163). | ||
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=== Precedence of Private Rights === | |||
The author refers to three jurisprudential principles that prioritize private and proprietary rights over public rights. | The author refers to three jurisprudential principles that prioritize private and proprietary rights over public rights. | ||
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The author indicates that a person who is unwilling to fulfill the rights of others or their own legal duties is considered recalcitrant. In accordance with this rule, the governing authority is permitted to act in place of the recalcitrant individual. The author asserts that the legislator has utilized this rule in the laws governing municipal projects to prioritize public rights. For example, these laws provide that if the executive body and the property owner cannot reach an agreement, a fair price will be established by three experts (one from the executive body, one from the property owner, and a third chosen by both parties). Should the property owner decline to nominate an expert, a qualified court will appoint one on their behalf (pp. 125-130). | The author indicates that a person who is unwilling to fulfill the rights of others or their own legal duties is considered recalcitrant. In accordance with this rule, the governing authority is permitted to act in place of the recalcitrant individual. The author asserts that the legislator has utilized this rule in the laws governing municipal projects to prioritize public rights. For example, these laws provide that if the executive body and the property owner cannot reach an agreement, a fair price will be established by three experts (one from the executive body, one from the property owner, and a third chosen by both parties). Should the property owner decline to nominate an expert, a qualified court will appoint one on their behalf (pp. 125-130). | ||
'''• The principle of no harm''' | '''• The principle of no harm''' | ||
the author, first, engages in a detailed discussion to define this principle and provide the related documentation. He considers the principle of no harm to take precedence over The Rule of Dominion (<nowiki>''</nowiki>Taṣlīṭ<nowiki>''</nowiki>), which acknowledges personal rights. In essence,The Rule of Dominion (<nowiki>''</nowiki>Taṣlīṭ<nowiki>''</nowiki>) is part of the evidence for primary decrees, while the principle of no harm is part of the evidence for secondary decrees. In these instances, there is no fundamental conflict, and the contradiction between the two evidences is resolved through common interpretative understanding or governance. This means that the owner's actions are restricted to non-essential cases, and the implementation of municipal plans is prioritized over the owner's right to act. The author further presents another scenario involving the conflict of two harms (rather than the conflict between Taṣlīṭ and no harm). He argues that, on one hand, the owner's actions, due to the non-implementation of municipal plans, cause harm to the community, while on the other hand, the execution of municipal plans results in harm to the owner. Here, he also prioritizes the prevention of the greater and more significant harm, namely the harm to the community, over individual harm, and constrains the owner's authority to situations where no harm befalls the community. He believes that with the compensation for properties by municipalities, the owner does not incur any harm. Furthermore, the author considers positive laws to take precedence over | the author, first, engages in a detailed discussion to define this principle and provide the related documentation. He considers the principle of no harm to take precedence over The Rule of Dominion (<nowiki>''</nowiki>Taṣlīṭ<nowiki>''</nowiki>), which acknowledges personal rights. In essence,The Rule of Dominion (<nowiki>''</nowiki>Taṣlīṭ<nowiki>''</nowiki>) is part of the evidence for primary decrees, while the principle of no harm is part of the evidence for secondary decrees. In these instances, there is no fundamental conflict, and the contradiction between the two evidences is resolved through common interpretative understanding or governance. This means that the owner's actions are restricted to non-essential cases, and the implementation of municipal plans is prioritized over the owner's right to act. The author further presents another scenario involving the conflict of two harms (rather than the conflict between Taṣlīṭ and no harm). He argues that, on one hand, the owner's actions, due to the non-implementation of municipal plans, cause harm to the community, while on the other hand, the execution of municipal plans results in harm to the owner. Here, he also prioritizes the prevention of the greater and more significant harm, namely the harm to the community, over individual harm, and constrains the owner's authority to situations where no harm befalls the community. He believes that with the compensation for properties by municipalities, the owner does not incur any harm. Furthermore, the author considers positive laws to take precedence over Rule of Dominion (<nowiki>''</nowiki>Taṣlīṭ<nowiki>''</nowiki>) and asserts that this will not lead to conflict. According to the writer, this principle is also enshrined in law, as exemplified by Article 40 of the Constitution, which states that no one may exercise their rights in a manner that harms others or infringes upon public interests (p. 13-156). | ||
'''• The rule of negation of hardship''' | '''• The rule of negation of hardship''' | ||
According to this principle, actions that may result in severe and unbearable hardship are prohibited. Municipal regulations that ensure the comfort and well-being of the public, if not enforced, lead to public distress; therefore, based on this rule, public rights take precedence over individual rights (pp. 156-161). | According to this principle, actions that may result in severe and unbearable hardship are prohibited. Municipal regulations that ensure the comfort and well-being of the public, if not enforced, lead to public distress; therefore, based on this rule, public rights take precedence over individual rights (pp. 156-161). | ||