Conflict of principle and appearance in family rulings

Abdar Esfahani, Mahdi; Aliakbari Babookani, Ehsan; Heidari, Mohamad Ali

doi:10.30497/flj.2020.238719.1540

Conflict of principle and appearance in family rulings

Document Type : Specialized Article

Authors

¹ PhD Student of Islamic Azad University, Najaf Abad Branch, Isfahan, Iran

² Assistant Professor of Department of Theology, University of Isfahan, Isfahan, Iran

³ Assistant Professor of Jurisprudence and Islamic Law, Najaf Abad Branch, Isfahan, Iran

10.30497/flj.2020.238719.1540

Abstract

Some jurists believe that appearance takes precedence over principle in the conflict between principle and appearance. Given that now, the courts do not have a unified procedure, some judges altogether prioritize appearance over principle and others prefer principle over appearance. In this paper, which is written in descriptive way, the authours attempt to state deductively a superior theory in the conflict between principle and appearance, according to the basics of different theories of jurists in terms of the preference of each principle and appearance over each other. The main purpose of this research is studying the meanings of the principle and appearance as well as the view of jurists in this field and also examining the practical cases of this issue during the trial on family court issues to determine what kind of these cases are perefered by the judge during the trial. In this paper, an attempt has been made to obtain the method of using these principles and their conditions in jurisprudential inferences due to the uses of jurists and fundamentalists and present a somewhat comprehensive analysis of this method.

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