Document Type : Research Paper
Authors
1
Professor, Private and Islamic Law Group, Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran
2
Assistant Professor, Private Law Group, Faculty of Law and Political Science, Allameh Tabataba'i University - Doctor of Law, Private Law, Faculty of Law and Political Science, University of Tehran, Iran
Abstract
In this article, the basics of the theory of domination or non-domination of the self in Islamic jurisprudence and French law have been studied. The main question was whether there is a term "body and soul" in the narration of "people have dominion over their property" and in general, whether a person has dominion over his body and soul or whether domination and right over the soul has not been legislated, and in cases of doubt, is the principle on domination of the soul or on non-domination? By studying the narrations and criticizing the views of the Imami jurists and separating legal domination from real domination, it was concluded that the word "body and soul" does not appear in the aforesaid narration; and, all the verses and hadiths that forbid man from making harmful possessions in his body and soul deny dominion over body and soul as a rule. Therefore, the principle should be based on the lack of legal domination of man over his body and soul, except in cases where the Holy Shari'at has explicitly allowed a special possession or justifies the "necessity" and the basic rules of permitting such possession, such as repelling existing or potential harm, the need to save the life (of oneself or another) and save the life of a living human being, to repel more severe harm with lesser harm, the rule that something more important takes precedence over something important and the like. French law also recognizes the principle of non-domination of body and soul, and provides for exceptions in case of "medical necessity" for the treatment of oneself or another person and the sampling of organs and cells of a living person. French jurists have also opposed the approach of using human beings as a tool for scientific purposes with humanitarian and moral arguments, emphasizing human dignity and the place of the human soul in his body.
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