A Legal and Jurisprudential Perspective on the Challenge of Financial Compensation for Spiritual Damage in Courts

Subject Areas :

فاطمه السادت حسینی ¹ , Mahmoud Ghaumzadeh ² , Mohamm RahbarPour ³

1 - Islamic Azad University of Law
2 - Islamic Jurisprudence and Law, Islamic Azad University, Saveh Branch, Iran
3 - Department of Criminal Law and Criminology, Faculty of Law and Political Science, Allameh Tabatabai University, Tehran, Iran

Received: 2020-01-07 Accepted : 2020-01-07 Published : 2020-01-07

Keywords: Damage, damage types, Civil liability the no-harm rule, jurists’ opinions, social profit,

Abstract :

Islam,like every ideological or belief system is based on a philosophy, the entirety of which,from its existence to its general perspective to human, society, and the world beyond, indicates the specific intellectual system of the adherents of that school. Besides, law, due to its own philosophy,has a particular attitude toward the element of loss in human relations, since it is a source of violation of the rights of individuals and society.Thus, what we aim to say in the field of legislation and Tashri'(Islamic legislation), in the first place, is that in case of damage, if the divine legislator(God)does not establish a rule,it cannot be inferred that the issue is out of the domain of the legal system, because the lack of guarantee in compensation for spiritual damage causes the aggrieved party to suffer loss, and therefore,the no-harm rule will deny the lack of guarantee. However, rational unconsciousness holds that there is a guarantee and the damaging party will, in general, be liable to pay compensation.In this paper, with an approach to the no-harm rule, we attempt to study the way of its practical application in the face