نوع مقاله : مقاله پژوهشی
نویسنده
استادیار گروه فقه و حقوق، پژوهشکده زن و خانواده، قم، ایران
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
Research on the transformation of legal traditions generally seeks the transformation at the level of substantive rules and norms. In this regard, the experience of Iran during the period of Ali-Akbar Davar’s judicial reforms demonstrates that this approach alone cannot account for certain fundamental transformations. The main issue addressed in this article is whether the transformation of a legal tradition necessarily depends on changes in its rules, or whether changes in the institutional configuration of law can also lead to the transformation of that tradition, even while preserving a significant part of its rules. Drawing on Alasdair MacIntyre’s conception of tradition, Neil MacCormick’s theory of normative institutions, Douglas North’s institutionalism, and Pierre Bourdieu’s concept of the legal field, the article develops an analytical model for addressing this issue. According to this model, legal rules do not possess a fixed identity independently of the institutions through which they are produced, interpreted, implemented, and taught. Rather, through the reconfiguration of legal institutions and the formation of a new legal field, their mode of presence and function undergo transformation. This model is subsequently applied interpretively to the study of Davar’s judicial reforms. Using a descriptive-analytical method and drawing on sources in the history of law, this study demonstrates that, despite the extensive incorporation of Shi‘i jurisprudence into the drafting of the Civil Code, Davar created a new field through the reconfiguration of legal institutions, placing the same rules within a different institutional logic. The main finding of the study is that this reconfiguration transformed the institutional identity and position of these rules, even with the continued presence of a significant body of jurisprudential rules, and thereby provided one of the historical contexts for the gradual transformation of the jurisprudential tradition.
کلیدواژهها [English]
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