A Comparative Study on the Continuation of Rights after Death and the Viability of Proposing the Theory of the Legal Personality of the Deceased

Abstract

The concept of "capacity to be entitled" is an essential component of the definition of legal personality. If the law recognizes a "right" for an object or entity other than a living person, it implies the implicit grant of legal personality to that object. In the traditional common law system, death was regarded as the termination of legal personality. However, with advancements in experimental sciences and the emergence of intellectual property rights, the recognition of rights after death gradually gained importance, necessitating the consideration of legal personality after death. These rights include the right to donate body parts, the right to posthumous reproduction and the possibility of assigning a child to a deceased parent, the right to make decisions after death, the right to the integrity of the body, personal rights (privacy) after death, and the right to respect and honor the deceased. Despite the existence of the term "legal personality", Islamic jurisprudence continues to employ concepts and constructs such as capacity, which convey the meaning of legal personality and are applied to issues such as endowments, treasury, and holy places. Therefore, to identify traces of legal personality in Islamic jurisprudence, we must examine its consequences and effects. Jurisprudential recognition of certain rights, such as the right to make decisions after death, the right to inherit the estate (a subject of integrated religion), and the deceased's ownership in the prosecution of crimes against the deceased, indicates the limited survival and inviolability of legal personality after death. These findings rely on the application of Article 956 of the Iranian Civil Code.

Keywords

• capacity after death
• legal personality after death
• personal rights after death
• right to property after death
• right to the integrity of the body