A Comparative Study of the Principle of Precaution in Modern Law and Iranian and Islamic Law

Abstract

The precaution principle is one of the significant legal principles which has been debated by lawyers in recent decades and has been used in the law of many countries such as France, Belgium, etc. This principle seeks to assure that the necessity of preventing danger is not limited to inevitable dangers associated with definite damages, but when the society is expose to serious dangers the casual relationship between which and the damage has not been definitely proven scientifically and technically, the necessary measures are taken to prevent the damages as well. Given the function of the precaution principle, it is possible that the efficacy of this principle is confused with some other legal institutions and rules in the first instance. Employing a descriptive-analytic method and after introducing the mentioned principle and addressing its constituent elements namely: 1) confronting the suspected risk; and 2) fear of causing a heavy or irreparable damage, the authors in this paper have reached this conclusion that this principle is distinguished from the compensation principle and provisional measure in law of Iran as well as the necessity to preclude the probable damage and Assimilative Capacity Model. However, its function can be justified by the rule of precaution in life, honor and serious properties in Islamic law. Furthermore, we can invoke the ta’zir or the necessity of maintain the System for legislating crimes and the foundation of fault for proving the damage.

Keywords

• suspected risk
• prevention principle
• principle of exemption
• the practical principle of precaution