نوع مقاله : مقاله پژوهشی
نویسنده
دانشآموختۀ دکتری حقوق خصوصی دانشگاه تهران (پردیس البرز)
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
This article is part of a larger study of the philosophy and history of law in Iran. Philosophical studies in Iranian law need to begin with the examination of the most fundamental legal concept, namely the “law” itself. The study of the concept of law, in turn, can begin, as it has been the tradition of old scholars, with a semantic survey of the word “qānūn” (the Persian word for ‘law’). But since “qānūn” is a foreign word that came into Persian after the arrival of Islam, the first step would be to find the word that the ancient Iranians used for “law”. A brief look at the ancient texts and their translations shows that the Iranologists and translators have often translated the word “dād”, “dāta” or “dātā” to “law”. However, considering facts such as a) that, in Pahlavi texts, one of the definite meanings of “dād” is religion/“Aeen”; b) “dād” was used in the oldest texts and poems in New Persian (Dari) in the same meaning as Aeen and that it has apparently never been used to mean “law”; c) that there is no other New Persian word equivalent to “law”; d) New Persian is very similar to Middle Persian (Pahlavi) and there is not a long interval between the prevalence of Middle Persian and the first New Persian texts and poems , this hypothesis arises that in spite of what Iranologists suppose, “dād” in ancient Iranian texts does not signify the law. To find an answer to the research question and verify the hypothesis, we first need to provide a definition of the “law” as part of the theoretical and conceptual framework of the research. Hence, the definitions of “law” given by jurists and legal philosophers will briefly be reviewed. Then, in order to avoid imposing modern conceptual structures and ideas on ancient Iranian texts, as well as to expand the scope of the definition to include all possible examples, some elements of this definition will be set aside so that the law in its simplest definition - the rule of behavior – remains as the basis for this research.
Then, a sufficient number of Pahlavi texts and almost all Achaemenid inscriptions will be studied. The research method will be first to examine the translations of ancient texts and, wherever the translators have used the word “law”, to study the transcripts of the original texts in order to find out which words in the original text the translators have taken as equivalents of the law . In other cases, the transcripts of the original texts will be checked first. Wherever the word “dād” is used, translations will then be checked to find out what equivalents the translators have suggested for it. In the last step, by comparing and analyzing sentences and phrases, paying attention to their context, and considering the information available from ancient Iran, the equivalents that translators have suggested for the word “dād” will be evaluated. The results of this study will show that the translation of “dād” to “law”, especially from a legal point of view, is incorrect. “Law”, in its simplest definition, means a rule of conduct, but a single rule for a particular subject. Therefore, if the translation of “dād” to “law” was correct, then it should be possible to find a text in which “dād” means a single, particular rule. It should also be possible to find uses of this word in plural and in indefinite forms, uses such as in “there is a “dād” that stipulates that this must / must not be done”, or in “this text/book contains a few “dād”s applicable to ...”. But the findings of this research do not suggest such a thing. Though “dād” does refer to “all rules”, “being organized by rules” or “legality”, it has never been used to mean a single, definite rule. “Dād” is not law, but a part of a weltanschauung, cosmology or ideology from which the law can be derived. If “law” is directly, exactly and essentially a rule, “dād” and “asha”, a more comprehensive concept, describe merely the utopian state of universe before being invaded and polluted by Ahriman. They can thus illustrate the righteous forms of life, with certain implications about rules and norms. Perhaps it is why the 8th book of Denkard describes “dād” as the knowledge related to material world (Giti). Once it becomes clear that “dād” could not signify the law, the subsidiary question would arise what word was used for this concept in ancient Iran? Reviewing ancient texts shows that in addition to “dād”, some other words have been translated to “law” none of which, however, are suitable for this meaning, as neither is semantically connected to the concept of “law” even to the extent that “dād” is. Since the analysis of Pahlavi legal texts indicates that they do not tend to refer to the concept of “law” and given that the search to find a word equal to “law” in some of the most important legal texts of the Sassanid period fail, this article reinforce the hypothesis that the Sassanid legal literature lacked a word for “law”. Definitive confirmation of this hypothesis requires complete review of all Pahlavi texts. Finding a convincing answer to this question is one of the most important steps that can be taken in studying the history and philosophy of law in Iran.
کلیدواژهها [English]
منابع
الف) فارسی
ب) خارجی
ج) اینترنتی
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