نوع مقاله : علمی پژوهشی
نویسنده
استادیار دانشگاه آزاد واحد قزوین
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
The structure of rationality is based on four dualist indicators (perfect/ bounded rationality, typical / personal rationality, intrinsic/instrumental rationality and formal/substantial rationality). The structure of every legal system also has these indicators as an architecture and regular and reasonable thinking of regulating relations in the society. In this article, these four indicators were examined in the Roman law, common law and jurisprudence systems. The research method of this article is analytical-descriptive and the method of collecting information is library. The findings of the research show the fundamental differences between different legal systems and the contradictions of the structure of rationality within each legal system. In this way, the dominant trend in Roman law is towards full, kind, essential rationality, however, there is a long-standing challenge regarding the rule of formal-instrumental and essential-essential rationality, which ultimately leads to the fusion of essential-essential rationality (natural human rights and justice) distributive in civil rights) with formal-instrumental rationality in the form of transnational international documents and domestic laws. In the common law, the prevailing and traditional tendency is towards full, kind, instrumental and formal rationality. However, there are signs of recent tendencies towards limited, personal and substantive rationality based on the analysis of the behavioral economics of rights and the inherent and immutable principles of human rights. In the jurisprudence system, the popular trend is towards complete, kind, intrinsic and essential rationality. All three legal systems have a structural conflict in terms of the form or substance of rationality, but they share a common opinion in the tendency towards perfect rationality.
کلیدواژهها [English]
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