Public Law
Hadi Tahan nazif; Ali Ariannezhad
Abstract
According to Article 124 of the Constitution; The president can have deputies to carry out his legal duties. On the other hand, Article 133 of the Constitution states that the responsibility of the ministries is on the president's chosen minister who has received a vote of confidence from the Islamic ...
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According to Article 124 of the Constitution; The president can have deputies to carry out his legal duties. On the other hand, Article 133 of the Constitution states that the responsibility of the ministries is on the president's chosen minister who has received a vote of confidence from the Islamic Council. Since, according to Article 113 of the Constitution, the President, who is the highest official of the country, heads the executive branch, including the ministries -except in matters directly related to the Supreme Leader’s powers, the powers of a vice president may interfere with the powers of ministers. Considering the obscurity of Article 124 and the legal gap regarding the limits to the powers of the vice presidents, the framework grounded for the powers of the vice presidents and the limits to the powers of the ministers should be determined.Research QuestionThis essay seeks to answer the question "Could the president appoint deputies with duties that are in the jurisdiction of the ministries?". The exact answer to this question depends on analyzing whether, on a legal basis, it is possible to appoint a vice president in the jurisdiction of the ministries or not. On the other hand, it should be investigated as to what extent this type of appointment has occurred in the legal system of the Islamic Republic of Iran, and what is the opinion of the Guardian Council as the main judge in this matter? And finally, considering the capacities provided in law, how can this conflict be prevented or solved? Literature ReviewBefore this research, the subject of vice presidents has not only been examined under the general concept of the president and the first vice president’s powers but also specifically in articles such as "The legal requirements of delegating the powers of the president to deputies in Iran's constitutional law system with regards to the opinions of the Guardian Council", "A look at the assignment of president’s legal duties to the deputies" and "Regulations for the appointment and the position of special representatives and deputy presidents". However, these articles did not deal with the issue of any interference between the competence of the president and the ministers and thus, their topic is fundamentally different from this research. Regarding the relationship between the vice presidents and the ministries, there has been a report on "carrying out executive affairs through the vice presidents instead of the ministries", which is also different from this research because it focuses on the possibility of doing executive affairs by the vice presidents instead of the ministries, irrespective of the issue of interference of their powers. Therefore, the innovation of this research is first, in its topic of examining the conflict between the legal powers of the vice presidents and ministers and, second, in its analysis at two theoretical and practical levels, and third, in its examination of the plausible legal answers and providing an innovative solution to overcome this problem. MethodologyThe current essay has been done through library research and adopting a descriptive-analytical approach meaning that, in addition to identifying the qualifications of vice presidents and ministers, we have analyzed the research problem using logical arguments. ResultsAccording to Article 124 of the Constitution, the president can have deputies to perform his legal duties. By examining the detailed summary of the deliberations of the Constitutional Revision Council, the proposed arguments, and the systematic approach taken to the enactment of the Constitution, we find that the deputy is considered a representative of the president by the legislator and a non-authentic person, and since the authority of the president is limited, he cannot appoint a deputy within the jurisdiction of the ministries.From the opinions of the Guardian Council regarding the issue of the "consulting minister", it is also deduced that the president can create institutions under his supervision and delegate matters to them to handle some extra-ministerial affairs and his special duties such as "supervising the work of ministers", "harmonizing government decisions", "formulating the government's programs and policies", "synchronizing and policy-making of executive bodies" and "mobilizing the facilities of executive bodies for a specific issue", but other duties and executive affairs that are not part of the president’s special duties which are under the jurisdiction of the ministries, cannot be entrusted to his affiliated institutions, and such assignment would be against the Constitution.In the current status, vice presidents are assigned in four ways: by the Constitution, the resolution of the supreme councils, the statutes, and by the decree of the president. On the other hand, the only bodies that determine the ministers’ powers are the statutes, and in case of a conflict between the powers of the vice presidents and the ministers, conflict resolution of the above-mentioned bodies with the statutory law should be examined. In case of adding to or changing the powers of the ministers by the statutory law and their conflicts with the powers of the vice presidents; If the founding document of the vice president is the statutory law or the decree of the president, the recent statute is applied, but if the founding document is the Constitution or the decree of the supreme councils, the recent law is invalid. To change or establish the powers of the vice-presidents, only the parliament or supreme councils such as the Cultural Revolution Council have the authority to appoint vice-presidents acting in duties that are considered to be in the jurisdiction of the ministers. ConclusionA conflict between the powers of the ministers and the vice presidents is only problematic where the founding body for appointing the vice president is the decree of the president himself, and in order to get out of this problem, it is possible to use the capacity provided by the constitution in the matter of supervision of the General Inspection Organization of the Country, the supervision of the parliament in Article 90 of the Constitution, and the case law of the Court of Administrative Justice; However, these solutions are difficult to reach and only reactive; Therefore, it is suggested that in the statutory law, the president -while appointing the vice presidents- should be required to approve bylaws on the limits of their authority in the cabinet so that the speaker of the parliament can prevent the interference of the authorities a priori, and that filing a well-grounded complaint in the administrative court of justice would become less complicated and problematic.
Hossein KAVIAR
Abstract
Article 10 (2) of the Law on the Organization and Procedure of the Administrative Justice Court determines the competence and ranges of the Court's powers to deal with and investigate objections and complaints against the final decisions of exceptional administrative authorities. According to the analysis ...
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Article 10 (2) of the Law on the Organization and Procedure of the Administrative Justice Court determines the competence and ranges of the Court's powers to deal with and investigate objections and complaints against the final decisions of exceptional administrative authorities. According to the analysis of the General Assembly of the Court of Administrative Justice in decisions number 37, 38, 39 dated 1989/10/2 and also the branches of the Court from paragraph 2 of Article 10, only real or legal persons of private law are allowed to file complaints and objections against final decisions. Exceptional Administrative authorities and the legal persons of general law don’t have that kind of power.Recently, on 2020/7/14, according to the ,Uniform Judicial Precedent numbered 792 of the General Assembly of the Supreme Court, the jurisdiction of the Administrative Justice Court to review the appeal filed by the Regional State Water Company against the decision of the Commission for Groundwater Affairs is recognized. Now the question arises is that whether the Uniform Judicial Precedent No. 792 is exceptional and is only about appealing the indefinite opinions of the judge of the Groundwater Commission?
Public Law
Mohammad Mohseni Rad; Ali Akbar Gorji Azandariani
Abstract
IntroductionLegal system is a legal concept that has been addressed less directly, except in a few cases. Legal order and later on legal system were initially introduced into legal literature by German jurists. In the first half of the 19th century, scholars of public law in Germany pioneered the discussion ...
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IntroductionLegal system is a legal concept that has been addressed less directly, except in a few cases. Legal order and later on legal system were initially introduced into legal literature by German jurists. In the first half of the 19th century, scholars of public law in Germany pioneered the discussion on the concept of legal order, influenced by the philosophies of their predecessors, namely Kant and Hegel. Similarly, the concept of a legal system, denoting an organic and systematic set of rules, emerged concurrently with the concept of the rule of law in the scholarship on law. The concurrent emergence suggests that the prerequisite for the existence of a legal system is the prior establishment of the rule of law. In all likelihood, the concept of a legal system had held more significance for scholars in private international law, whose aim was to elucidate how the rules of one system could be applied in another. Therefore, recognizing the concept of a legal system seemed to be a precursor to delving into the core discussion of international law. Later on, the concept of a legal system fell into neglect and received scant attention until it regained its importance during the 20th century. However, the revival did not stem from the inherent significance of the legal system itself, but rather from a debate between positivists and anti-positivists regarding the concept of law. Neither Hart nor Fuller—as the great figures of positivism and anti-positivism, respectively—explicitly referred to something as of legal system; however, their formulation and theorization would inevitably end up in the concept of a legal system. In any case, legal system can be viewed as a cohesive set of all elements that significantly contribute to establishing the rights governing the life and functioning of any human society.In this respect, the present study aimed to investigate the nature of the concept of a legal system by addressing the following questions: Why is the concept of a legal system important to us? What is a legal system? What are its defining characteristics and constitutive components? How are the components intertwined? and What kind of relationship does the legal system impose on its internal environment? It is presupposed that a precise conceptual definition of legal system is essential to understand the relevance between ethics and the legal system. Accurate identification of constituent elements of the legal system, as well as a careful examination of the criteria for the system’s validity, are crucial steps to gain insight into the relationship between ethics and the legal system. Literature ReviewAs the legal system consists of a set of laws, understanding the legal system requires a detailed analysis of the nature of law. It is thus crucial to note that any conceptualization of law significantly influences the understanding of the legal system. In the literature on legal studies in Iran, it seems that that there is a dearth of research concerning the conceptual and philosophical definition of legal system. The concept of a legal system and its related notions have not been a focal point for Iranian jurists. Although a few significant translated works deal with the concept of law, there is no independent research specifically dedicated to the concept of a legal system. In the non-Iranian context, the English-language literature includes notable works published in the early 70s, such as The Concept of a Legal System by Raz (1970) and Normative Systems by Alchourron and Bulygin (1971).The concept of law, as a normative-cum-institutional system, has become a battleground for positivist and non-positivist doctrines. The discussions on the existence, elements, and purpose of the law form an integral part of the analysis of the concept of a legal system, with each jurist and scholar interpreting it based on their theoretical perspective. In general, a legal system is deemed to exist when its laws do exit. Therefore, to understand the legal system requires a keen understanding of the conditions under which the law exists. Materials and MethodsThe present research employed a descriptive, analytical, and conceptual methodology, relying on library research and internet resources to collect the data. ConclusionIn light of the research findings, it seems that the study of the theory of a legal system is still in its early stages, for neither the nature of associated issues nor its significance has been recognized and understood. The research highlighted that understanding the nature of law requires an understanding of the internal relationships among laws, emphasizing that every law is necessarily linked to a legal system. In summary, it appears that the analytical theory of a legal system suffers from two shortcomings. First, it neglects the problematic issue of content, thus offering an inadequate explanation of the legal system’s dynamics. Therefore, such a theory needs to be complemented by ethical considerations. Second, this doctrine falls short in giving adequate attention to all constituent elements of the legal system.
Hadi Dadmehr; Seyed Hadi Mahmoudi
Abstract
The prohibition of use of force is one of the primary obligations of States under Article 4(2) of the United Nations Charter. No violation of this principle is permitted except in the case of self-defense under article 51 of the Charter or the authorization of the Security Council under chapter VII of ...
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The prohibition of use of force is one of the primary obligations of States under Article 4(2) of the United Nations Charter. No violation of this principle is permitted except in the case of self-defense under article 51 of the Charter or the authorization of the Security Council under chapter VII of the UN Charter. The Intervention by invitation is one of the controversial concepts in legal doctrinal debates partly because it has not been included in the Charter. Based on the latest Security Council’s practice in the case of the Gambia (invitation by an elected President who has never had effective control), the research provides new analytical findings on the theoretical self-sufficiency of the principle of intervention by invitation. The results of the survey support the argument that a President-elect, who is unable to gain power due to electoral riots, may request intervention with the explicit or implicit confirmation of their legitimacy by the SC without any reference to UN Chapter VII Resolutions.
Public Law
Hosein Poshtdar; Zeinolabedin Taghavi Fardod; Maryam Taghavi Fardod; Mohammad Taghavi Fardod
Abstract
The phrase “rule of law” is made up of two legal words, rule and law. Regardless of the broad meaning of both words in the legal literature -with each of them having a long history in the science of law- perhaps agreeably, it can be considered as the subordination of all political institutions ...
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The phrase “rule of law” is made up of two legal words, rule and law. Regardless of the broad meaning of both words in the legal literature -with each of them having a long history in the science of law- perhaps agreeably, it can be considered as the subordination of all political institutions to the law in order to regulate the relations between citizens and the government. The root of the rule of law can be found in the theoretical foundations of Western thinkers, in concepts such as power is corrupt. This is why, to achieve a good governance system in Western political philosophy and prevent chaos and establish public order and security, and establish the balance between the conflicting interests of social life through the exercise of governance, the idea of the rule of law has been proposed. It functions as a means to regulate the power of the rulers, negate the tyranny and arbitrariness of the rulers, and also to provide the requirements for the administration of public affairs.This particular interpretation of the concept of power and leadership was proposed in Germany and then in France during the Renaissance. It is the product of legalism and fundamentalism thinking and has three concepts of order; negation of autocracy, libertarianism which are crystallized in the external activities of the government (legislation) and its internal activities (organizational structure of the government).The political school of Shia jurisprudence presents the idea of monotheistic government based on divine law, and does not accept the secularization of government like it is in the age of modernity, and not only it does not consider the nature of power as corrupt, but accepts it as an excellent and admirable basis. Therefore, the nature of power in monotheistic thought is not corrupt, and it is its application and way of usage that turns it into a divine rule or tyrannical rule. On this basis and to establish the divine sovereignty of the Holy Sharia in the Age of Absence, Infallible Imam appoints the jurist Jame al-Sharia as his successor in all affairs of the administration of the Islamic Society.The essence of the idea behind the rule of law, which is the controlling of rulers and regulating the means of exercising government power over citizens, has been formed and evolved mainly based on liberalism and humanism in a country's political system. The liberal view of the rule of law has been formed in two ways: the first concept of the rule of law, which has a right-oriented nature, especially focusing on the right of expression, was formed in contrast with authoritarian rulers and its purpose is to limit the power of the government and protect the rights of individuals.. Another concept of the rule of law is a form that, through the law, emphasizes that the actions and decisions of government officials be rational concerning the citizens.After understanding the rule of law, it is possible to differentiate the formal (organization-oriented) and substantive (right-oriented) rule of law from each other, and by combining the two mentioned dimensions of the rule of law, a more complete model has been achieved in the system of the Islamic Republic of Iran.However, According to the political jurisprudence of Shia and consequently, in its complete model, i.e., the system of the Islamic Republic of Iran, simply examining the idea of the rule of law in each of these forms will lead to incorrect results, In order to achieve this goal, according to the foundations and principles of each political system, the position of the rule of law should be determined as an unchangeable principle or a criterion for guaranteeing other principles.From this point of view, there are fundamental differences between the principles of the rule of law in liberalism and the political system of Shia jurisprudence:1-The concept of lawIn the political system of authentic Shia jurisprudence, the concept of law has also been explained under the concept of monotheism, in such a way that law is an intrinsic matter that is rooted in the origin of the Shia political Jurisprudence. However, the law in the Western political system, are empirical laws that are established under secularism and are based solely on the consensus and opinion of the majority.2- Rule of law modelThe political system of liberalism distinguishes between two concepts of the rule of law: formal rule of law (organization-oriented) and substantive rule of law (right-oriented).The implemented model of the rule of law in the system of the Islamic Republic of Iran is obtained from the combination and synergy of the two mentioned models and is a more complete model.The Islamic legal system is established by the original belief and the basic political system of Shia jurisprudence in obedience to all individuals, even the leadership of the Muslim community. On the other hand, the essence of power is not corrupt in monotheistic thought but how it is applied can turn into either a divine government or a tyranny. The Unique legal system of the Islamic Republic of Iran has a diagnostic and monitoring mechanism that fully complies with the rule of law. This paper discusses the theoretical approaches to the concept and the formal and substantive aspects of the Rule of law in the common law vs. the Islamic Republic of Iran.
Ali Reza Jalali; Seyed Mahmood Majidi
Abstract
One of the aspects of the synthesis between religious freedom and freedom of teaching is the correct description of the legal system of religious education in schools. The aim of the research is the explanation of this system in the Council of Europe member States, especially in consideration of respect ...
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One of the aspects of the synthesis between religious freedom and freedom of teaching is the correct description of the legal system of religious education in schools. The aim of the research is the explanation of this system in the Council of Europe member States, especially in consideration of respect for the teachings of minorities, focusing on the situation of Turkish Alevis. These descriptions will help us to answer the following question i.e. what are the parameters of the European Court of Human Rights in outlining a legal system of religious education that requires States to respect the faith of minorities and whythe Turkish government does notrecognize Alevis as an independent minority. The result of our research is that from the point of view of European Court, a State can teach a particular religion in its education system, but these teachings must not affect the rights of Alevis. Ankara wants to strengthen its national and religious unity; hence it does not recognize Alevis as an autonomous community. All this is in contrast with the jurisprudence of the European Court and against Turkish secular system.
Mahdi Rezaei; mohsen ghaemi khargh
Abstract
Right is a meaningful, logical, and justifiable claim in the human realm, with the attribute of merit and the avoidance of the attribute of virtue, based on human dignity and honor. This concept, like a sword in the bottom of a drunken bell, is the basis for the rebirth of the state or the traditional ...
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Right is a meaningful, logical, and justifiable claim in the human realm, with the attribute of merit and the avoidance of the attribute of virtue, based on human dignity and honor. This concept, like a sword in the bottom of a drunken bell, is the basis for the rebirth of the state or the traditional order. In contrast, Etzali theology, contrary to the Kharijite or Ash'arite approach, while disturbing and struggling, has the concept of the right that the catalyst will be for the realization of the traditional order of the state and the advance towards the modern state. The proposed subject, without having a background and literature in pre-written writings, based on library studies and descriptive-analytical approach, to understand the form of right in the Etzali approach and its impact (as it is) on formation The modern State. This notion of Right, without regard to the modern state as a secondary and imposed nature, provides an epistemological basis for the formation of the modern state. This meaning, along with the divergence of Islam from the modern state in territorial dimensions, power-orientation and manifestations such as servitude, has considered the separation of the public sphere from the private sphere.
International Law
Morteza Ahmadifard; Mehdi Hatami
Abstract
On January 20, 2018, Turkey launched Operation "Olive Branch" and on October 9, 2019, Operation "Spring of Peace" in northern Syria, violating its territorial integrity and military entry into the country. Also, these attacks continue in a scattered manner. According to Turkish officials, the operation ...
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On January 20, 2018, Turkey launched Operation "Olive Branch" and on October 9, 2019, Operation "Spring of Peace" in northern Syria, violating its territorial integrity and military entry into the country. Also, these attacks continue in a scattered manner. According to Turkish officials, the operation was carried out to eliminate the terror of terrorism and self-defense, given that the use of force in international relations today is prohibited by international law and the UN Charter, this article examines the legitimacy of the use of force by Turkey and examines the behavior, goals and feedback resulting from its actions by citing the principles and rules of International law as well as some international jurisprudence, determines that Turkish government has violated the important principle of the prohibition of the use of force which is explicitly stated in paragraph 4 of Article 2 of the Charter, and the reasons given by the authorities of that government, including the fight against terrorism and legitimate defense, cannot justify a violation of this fundamental rule.
marzieh dastbala; Alireza Zaheri
Abstract
Over years simultaneously with the formation of the concept of government, the ideal of creating unity between governments and the formation of a single international community has always been discussed. Nowadays international unity as an expanding topic comes first in the international community. But ...
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Over years simultaneously with the formation of the concept of government, the ideal of creating unity between governments and the formation of a single international community has always been discussed. Nowadays international unity as an expanding topic comes first in the international community. But along with the expansion of the process of international unity and consequently the relations between governments, international problems specially in international governance domains and management of the process of globalization started to increase as well. As a result, thinkers, by taking tradition-breaking measures, have put aside the governments as the main role players of the international community and government officials have replaced the independent presence of the governments with the formation of parallel networks in line with special topics related to themselves. In this survey, using historical, descriptive and analytical methods, at first, the aim of the article to examine the background of these networks which under the name of transnational networks try to emerge a more advanced general structure in the international community and in law in general was dealt with. Finally, the acceleration of solving international problems due to the existence of transnational networks was inferred.
mahdi shahabi; mohammadreza mohammadi; Mortaza dehghanNejad
Abstract
From Naseri era until Constitutional Revolution because of lack of Rule of law as a symbol of modern government, voluntarism or king’s volition was one of the most important basis of legal rule validation that had deep roots in traditional and intellectual background of Iranian society. This volition ...
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From Naseri era until Constitutional Revolution because of lack of Rule of law as a symbol of modern government, voluntarism or king’s volition was one of the most important basis of legal rule validation that had deep roots in traditional and intellectual background of Iranian society. This volition received its legitimation from God’s will and people as peasants, by accepting this issue, considered this power transformation as a kind of charisma. However, because king’s volition came out of king’s characteristics, it was considered to have a variable basis and their derived rule had characteristics such as unpredictability, lack of equality element, uncertainty, lack of continuity and limitation. These features in contrast by modern legal paradigm could not have structure based on natural justice or legal justice and eventually led to the Constitutional Revolution. The major goal of this research is to analyzing the characters of traditional voluntarism frome the perspective of the modern voluntarism. Therfore, it would be possible to clarifing the structural challenges of the pre-revolutionary legal system.
ayat mulaee
Abstract
In the modern era, the Administration is assumed to be a service institution that should, in the ordinary and extraordinary circumstances, deliver public services. This cannot be achieved unless under the principle of the rule of law, its jurisdictions are defined. The present study, emphasizing on the ...
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In the modern era, the Administration is assumed to be a service institution that should, in the ordinary and extraordinary circumstances, deliver public services. This cannot be achieved unless under the principle of the rule of law, its jurisdictions are defined. The present study, emphasizing on the crisis of COVID-19, has attempted to discuss the jurisdictional competence of the Administration in a crisis situation in Iran. Therefore, this question is addressed: regarding COVID-19 outbreak, what is the position of the Iranian legal system regarding the powers of the Administration in times of crises? to answer this question, using the descriptive-analytical research method, it is concluded that, first, the constitutional legislator does not have a clear understanding of the concept of crisis and Articles 79 and 176 are ambiguous. Second, the legislator has taken an "isolated" and "partial" attitude in expressing the crisis. As a result, it has failed to enact a comprehensive law on the state of emergency. Third, jurists have been unable to make laws in crisis due to being under the shadow of the ruling atmosphere. Therefore, "lawmaking in crisis" is a missing link in Iranian legislative system. Accordingly, dealing with the COVID-19 crisis faces serious obstacles in Iran.
Anahita Seifi
Abstract
Undoubtedly, one of the conditions for the realization of peace is the participation of all strata and social and political groups. Therefore, the widespread process of peace requires attendance. The obstacles on this path indicate that we need to know more about why and how women participate in the ...
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Undoubtedly, one of the conditions for the realization of peace is the participation of all strata and social and political groups. Therefore, the widespread process of peace requires attendance. The obstacles on this path indicate that we need to know more about why and how women participate in the peace process. It is therefore necessary to pay attention to the participation of women as one of the groups most affected by war and violence. The challenges women face in the peace process are, in most cases, gendered factors. In this regard, the present study seeks to examine the implementation of United Nations Security Council Resolution 1325 on women's participation in the process of peace building in Afghanistan, using a descriptive-analytical method. The results of the study indicate that the Afghan National Action Plan is slowing down with regard to Security Council resolution 1325. This is largely due to the growing conservative position of the government on the role of women and the controversial views of the peace process, on the participation of women in the peace process and the international institutions that provide funding to the Afghan National Action Plan. Women's participation in the peace process in Afghanistan is faced with serious doubts.
Narges Qadirli; hoorieh hosseini
Abstract
The international organizations have independent legal personality which makes them responsible for their own wrongdoings. Therefore, member states of these organizations, are not responsible due to their mere membership. The European Court of Human Rights' decision in the Bosphorus Case can be considered ...
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The international organizations have independent legal personality which makes them responsible for their own wrongdoings. Therefore, member states of these organizations, are not responsible due to their mere membership. The European Court of Human Rights' decision in the Bosphorus Case can be considered as a key case in the context of the Member States' responsibility for the actions of international organizations. In this case, the European Court of Human Rights sought to determine when member states were responsible for actions carried out in the European Union. The doctrine of equivalent protection which first introduced in the case-law of the European Court of Human Rights, and in particular in the Bosphorus case, undermines the independent personality and separate responsibility of the international organization and made an exception to it. Under this doctrine, EU member states will be internationally responsible if they do not protect fundamental human rights at a level equal to the European Convention on Human Rights. In other words, when a state transfers its competence to an organization, it is necessary to ensure that it fulfills its other international obligations. This article analyzes how the European Court of Human Rights monitors the European Union's performance in the scope of human rights.
mohammad amin abrishami rad; Hamed Nikoonahad
Abstract
The ambiguity regarding the concept considered by the members of the Review Council of the term "issuing referendum" in Article 110(3), has led to this fact that the real role of the Leader in referendum process and the scope of his authority over the types of referenda has remained vague. In this research, ...
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The ambiguity regarding the concept considered by the members of the Review Council of the term "issuing referendum" in Article 110(3), has led to this fact that the real role of the Leader in referendum process and the scope of his authority over the types of referenda has remained vague. In this research, it was attempted to explain the concept of the term "issuing of the referendum" based on an intentionalist approach and in the form of descriptive-analytic studies, in order to explain the authority of the Supreme Leader in the process of substantive and legislative referenda. Analyzing the discussions of the members of the Review Council and considering other relevant indications, it could be argued that the term "issuing of the referendum" was intended to identify the practical action of Imam Khomeini in issuing the decree on the beginning of the process of the "Constitutional Revision Referendum" and it should be considered as the Replica of the first sentence of Article 177. Therefore, this authority of the Supreme Leader does not extend to referendum subject to Article 59 of the Constitution.
Public Law
mahdiyeh firoozi; Abbasali Kadkhodaei
Abstract
The concept of Law was the most important in terms of pre-constitutional reforms in Iran. The evolution of this concept as a basic concept can be generalized to the evolvement of reformist ideas in Iran; Thus, the importance of studying this concept becomes apparent. The beginning step of Iran's legal ...
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The concept of Law was the most important in terms of pre-constitutional reforms in Iran. The evolution of this concept as a basic concept can be generalized to the evolvement of reformist ideas in Iran; Thus, the importance of studying this concept becomes apparent. The beginning step of Iran's legal reform was affected by the reforms of Russia and the Ottoman Empire; hence it was formed under the title of the Age of Tanzimat. It was the first attempt by the Iranians to regulate and limit authoritarian and unconditional power. This research formulates by the descriptive-analytical method and library data collection method. This study attempts to show the concept of Nazm/Order as a measure to evaluate society and how it influenced Iranians' understanding of the concept of law by examining the works of Iranian writers, especially the works of Mirzamalkamkhan NazemAl-Dawla. The primary intention of this study is to investigate the concept of Law affected by the discourse of Tanzimat. The concept of law in such a context seemed to be highly centralist and with a formalist attitude, it sought to limit absolute power and tyranny, which was the most important symbol of the lack of Nazm/order in Iranian society.
Public Law
Ayat Mulaee; Nusratullah Nabeel Rahimi
Abstract
Post-positivism is a contemporary philosophical idea and has emerged with the influence of the criticisms of positivism. This concept is a part of the research methodology. The question is this: Does post-positivism have the potential to propose a research approach in public law? This article is fundamental ...
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Post-positivism is a contemporary philosophical idea and has emerged with the influence of the criticisms of positivism. This concept is a part of the research methodology. The question is this: Does post-positivism have the potential to propose a research approach in public law? This article is fundamental research, and the descriptive-analytical method has also been used for data analysis. Based on the findings of this article, First; most legal research does not take the research methodology seriously however, the validity of knowledge requires researchers to define the ruling paradigms of the research. If the researcher does not pay attention to this issue, the research output will not have scientific validity. Secondly; every knowledge cannot be considered as scientific knowledge. Correct scientific knowledge is subject to philosophical paradigms, which if not paid attention to, the output of the research will not have scientific validity. Thirdly; Post-positivism as a research approach can be extended to the knowledge of public law. Fourthly; this way of thinking enables public law researchers to adhere to descriptive and historical research methods (as contextual knowledge) in addition to using statistical techniques.
Public Law
hasan mohammadi; Ali Mashhadi
Abstract
Perfectionism, as an idea that has long influenced the political theories of the state, has a deep connection with the concepts of moral state, utopia, virtuous society, society's priority and the precedence of good. On the other hand, the public sphere, as a concept that has been born and developed ...
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Perfectionism, as an idea that has long influenced the political theories of the state, has a deep connection with the concepts of moral state, utopia, virtuous society, society's priority and the precedence of good. On the other hand, the public sphere, as a concept that has been born and developed in modern political thought, has been considered by modern political thinkers as a normative field and a rationalizing source for the state. Considering that one of the main approaches to the Constitution of the Islamic Republic of Iran is the perfectionist approach, Let's answer the question that, given the principles and pillars of the public sphere, is it possible to achieve it in a perfectionist approach to the constitution in the legal system of the Islamic Republic? Finally, by examining the foundations of the perfectionist approach and the public sphere, the refusal to realize the public sphere in this reading of the Constitution of the Islamic Republic of Iran is concluded.
Hormoz Yazdani Zunuz; Ali Mashhadi
Abstract
Considering that the administration enjoys the privilege of public power, in judicial supervision, the rule of "the burden of proof rests with claimant" should be adjusted in favor of the plaintiff. Every citizen who files a complaint in the Court of Administrative Justice is not necessarily a claimant, ...
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Considering that the administration enjoys the privilege of public power, in judicial supervision, the rule of "the burden of proof rests with claimant" should be adjusted in favor of the plaintiff. Every citizen who files a complaint in the Court of Administrative Justice is not necessarily a claimant, but may have initially been charged with a violation by the administration. In such cases, the claimant is the administration. Therefore, placing the burden of proof entirely on the shoulders of the citizen will not be proportionate to the purposes of administrative proceeding. The court's decision must include reasoning based on evidence. This research seeks to answer the following questions: In the procedure of the Court, how is the burden of proof distributed between the parties? Also, what is the status of the issued judgments in terms of being reasoned? In this research, a number of the opinions of the branches of Court have been examined. The results show that the burden of proving the claim is heavy on the shoulders of the citizen, and the stages of reasoning based on the evidence does not fully specified in the text of most of the examined opinions.
International Law
Mahmoud Hajjar; Seyed ghasem zamani
Abstract
The interpretation of treaties is particularly important in the field of treaty law, as in most cases it is not possible to apply treaties without their interpretation. In addition to the text and context of the treaty, the relevant rules of international law, including the general principles of law, ...
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The interpretation of treaties is particularly important in the field of treaty law, as in most cases it is not possible to apply treaties without their interpretation. In addition to the text and context of the treaty, the relevant rules of international law, including the general principles of law, can play an important role in the interpretation of treaties. A treaty is a creation of the international legal system, and its interpretation and implementation should be carried out within the context of the legal system that governs it. The main question to which this research intends to answer is: What is the position of general principles of law in the interpretation of treaties? It seems that the use of general principles of law in the interpretation of treaties can reduce the potential fragmentation of international law and promote its coherence. In this research, by using library sources, international documents and international judicial decisions and arbitration awards and using a descriptive-analytical method, the position of general principles of law in the interpretation of treaties will be examined.
International Law
Hojatollah Mansouri; Soheyla Koosha; Mohammadreza Hatami; Hossein Alkajbaf
Abstract
Protecting the rights of women has been a permanent concern of human rights advocates throughout the last two centuries. Attempts led to the recognition of the principle prohibiting gender discrimination in several core human rights instruments and the Convention on the Elimination of All Forms of Discrimination ...
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Protecting the rights of women has been a permanent concern of human rights advocates throughout the last two centuries. Attempts led to the recognition of the principle prohibiting gender discrimination in several core human rights instruments and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). However, reports indicate that many States have not fully adhered to the provisions of CEDAW. It is important to review the basic concepts of gender discrimination and the provisions of the Convention to analyse the feasibility of its implication in societies that have diverse norms. Drawing on qualitative research this article attempts to answer the key question “What is the approach of CEDAW to norms governing different societies and what legal standards do the Islamic Sharia norms require to be considered in municipal legal systems and the context of CEDAW?”. After providing a brief description of fundamental concepts in the field of gender equality, it critically reviews CEDAW and expounds on the quiddity and the causes of its shortcomings. Finally, it deals with the major contradictions between the provisions of CEDAW and the norms prevailing in Islamic societies and tries to propose an Islamic standard in this regard.
International Law
Abdollah Abedini
Abstract
The general principles of law are considered one of the main sources of international law, which have special features such as filling gaps or legal abstractions, as well as creating coherence in the international legal system. These principles are usually taken from domestic legal systems and some others ...
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The general principles of law are considered one of the main sources of international law, which have special features such as filling gaps or legal abstractions, as well as creating coherence in the international legal system. These principles are usually taken from domestic legal systems and some others are specific to the international legal system. In its approach of the last two decades, the International Law Commission has started to examine the sources of international law and has so far concluded the issue of unilateral legal declarations, customary international law, and, (with some tolerance) peremptory norms of general international law. Currently, the issue of general principles and subsidiary means of determining the rules of international law is on the Commission's agenda. Examining Iran's approach in the field of general principles of law forms the subject of this article, so that while monitoring Iran's approach to the course of study of the Commission, the attention of the international law society of Iran will also be drawn to this issue in further researches.
Public Law
Mojtaba Ghasemi; Hasan Johari
Abstract
The ineffectiveness of laws and regulations related to the governance and administration the Social Security Organization and the National Pension Fund is one of the most important causes of the pension crisis in Iran. These laws and regulations have changed the state from a regulator to an interventionist. ...
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The ineffectiveness of laws and regulations related to the governance and administration the Social Security Organization and the National Pension Fund is one of the most important causes of the pension crisis in Iran. These laws and regulations have changed the state from a regulator to an interventionist. The dominance of the state and no recognition of any role for beneficiaries have aggravated the agency problem rooted in the separation of ownership from management. This problem in pension funds appears in a political form in addition to the traditional one. In addition, a lack of transparency and accountability has motivated appointed managers to pursue their personal and political interests rather than beneficiaries'. From the perspective of corporate governance, solving agency problem in pension funds requires strengthening transparency, accountability, and responsibility for managers. Therefore, it is necessary to reform laws and regulations to give more room to the stakeholders in the administration of pension funds. This paper purports to evaluate corporate governance in Iranian pension funds to highlight the existing shortcomings
International Law
maryam hosseinabadi; Seyed Qasem zamani
Abstract
The presence of Non State Armed Groups (NSAGs) in non-international armed conflicts has become a threat to the international peace and security in the last few decades. In this regard, shedding light on the matter of the aforementioned entities' adherence to the rules and regulations of international ...
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The presence of Non State Armed Groups (NSAGs) in non-international armed conflicts has become a threat to the international peace and security in the last few decades. In this regard, shedding light on the matter of the aforementioned entities' adherence to the rules and regulations of international humanitarian law, as a branch of international law regulating armed conflicts, as well as its necessity through examining theoretical foundations proposed in this field of study is of great significance, since the effect of their adherence to the provisions of this field of law as primary rules, is, in turn, reflected in applying secondary rules. On the basis of analogical method and through examining international sources and doctrine, this article aims to shed light on the theories concerning non state armed groups` adherence to the rules of international humanitarian law and its effect on secondary rules with emphasis on the non- international along with internationalized armed conflict in Yemen. It is finally concluded the theory of binding force of IHL on NSAGs due to the exercise of de facto governmental functions may explain the aforementioned entities' commitments to rules in question more clearly.
Public Law
atefeh Moradi Eslami; Mohammad Javad Javid
Abstract
While the principle of "certainty" and "legal security" are known as principles of modern legislation; During the transition to the digital age and post-modernism, due to the necessity of rapid socio-economic developments based on technological progress, the principle of uncertainty, innovation and flexibility ...
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While the principle of "certainty" and "legal security" are known as principles of modern legislation; During the transition to the digital age and post-modernism, due to the necessity of rapid socio-economic developments based on technological progress, the principle of uncertainty, innovation and flexibility is adopted in some international legal documents. It is not an exaggeration to say that legal systems in the postmodern era are redefining the rule of law in the context of institutional dynamics and basic technological developments. In the meantime, the Deleuze school of philosophy deals with the function of law in the new era by proposing the assemblege theory with creative and critical approach and presents a dynamic analysis of the philosophy of law. The present article focuses on the epistemology and sociology of this theory in the eyes of three experts of the totalitarian school, namely Gilles Deleuze, Guattari and Manuel Delanda, and deals with the feasibility of understanding institutional dynamics in the rule of law process.
International Law
Abbasali Kadkhodaei; Mohammadreza Mohammadi
Abstract
The concepts of abuse of rights and abuse of process are being considered by litigants in international courts. In the abuse of the right and abuse of process, bad faith replaces good faith. In abuse of rights, the question is about exercising a right but with an improper purpose while abuse of process ...
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The concepts of abuse of rights and abuse of process are being considered by litigants in international courts. In the abuse of the right and abuse of process, bad faith replaces good faith. In abuse of rights, the question is about exercising a right but with an improper purpose while abuse of process occurs to take advantage of a process with different intentions in order to disrupt proceedings. Abuse of rights is an issue that is related to the substantive part of a case, while abuse of process is a non-substantive issue in most cases and is raised in the admissibility. This study's main objective is to examine the practice of the ICJ in relation to the abuse of rights and abuse of process. The research method of this research is descriptive-analytical by using library-documentary sources. Despite the refusal of the court to state the status of abuse of rights and process, today these concepts can be referred to as general principles of law in international law. This article proves that the court considers a high threshold to accept the realization of the abuse of rights and process, and so far it has not been able to confirm such abuse.
