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
Ayat Mulaee; Maedeh Soleymani Dinani
Abstract
Although the idea of an unwritten constitution and the identification of this concept can be very challenging and even be used as a tool to circumvent the text of the constitution or as or a template for explaining the nature of political preferences and legitimizing actions that do not have a specific ...
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Although the idea of an unwritten constitution and the identification of this concept can be very challenging and even be used as a tool to circumvent the text of the constitution or as or a template for explaining the nature of political preferences and legitimizing actions that do not have a specific place for explanation in the field of constitutional rights; But dealing with this concept cannot be more dangerous than ignoring. By examining the foundations of the legitimacy in its original origin the boundaries of this concept are defined and the way of any preferential use is taken. If introduce the unwritten constitution as a set of legal rules of the stature of the constitution that are not included in the written text of the constitution and not only do not derive their legitimacy from the text, but also give credibility to the principles contained in the text; This question is raised, where do such rules get their legitimacy? with the descriptive-analytical method and the collection of materials in a library, an attempt has been made to give an appropriate answer to the question by examining the concept of the unwritten constitution and analyzing its foundations in its watershed.
Public Law
Ayet Mulaee; Sayed Ali Mousavi; Farshid Bandehali
Abstract
IntroductionHegel is a philosopher who studies the concept of the state with his multifaceted philosophy and his special methodology. On one hand, he criticizes the views of different schools of thought about this concept and believes that the government is not a mechanism to maintain peace, enforce ...
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IntroductionHegel is a philosopher who studies the concept of the state with his multifaceted philosophy and his special methodology. On one hand, he criticizes the views of different schools of thought about this concept and believes that the government is not a mechanism to maintain peace, enforce rights, or promote benefits beyond its own existence, and only in this capacity can it be recognized by everyone as a right. On the other hand, in his theory, the divine and intrinsically purposive government is trying to incorporate all the desirable features of these schools, despite all these criticisms. notwithstanding this paradox, this research, whose sources have been collected through the library research method and descriptive-analytical study, aims to prove the hypothesis that the Hegelian state emerges from within the traditional liberal and democratic state-building philosophies in a special and distinct way. It is trying to answer the question “What are the characteristics of the ideal state in Hegel's view, In a practical look at the political philosophy of the state?”, The results show, while proving the hypothesis; that contrary to the extreme collectivism of Rousseau and the abstract individualism of Lockean liberalism, Hegel's state is ‘a reasonable and inevitable institution of society that everyone must recognize its by force and accept its obedience’. Research Question(s)What are the characteristics of the ideal state in Hegel's view? Literature ReviewSeveral research papers have been published Related to the subject of the research, including; Zahra Vashqani Farahani's thesis titled: "State Theory in Hegel's Political Philosophy" published by the Faculty of Literature and Humanities of the Islamic Azad University (Central Tehran Branch), as well as an article titled "The Importance of Hegelian Separation, State and Civil Society" written by Azim Rahin, Prepared and published in No. (1.2) of Social Sciences Quarterly. However, the distinct feature of this research is the examination of Hegel's paradigmatic view of the government, which is in many ways against or in favor of democracy and liberalism. MethodologyConsidering that research in most humanities disciplines is mainly focused on theoretical solutions, the present study has used a library research method to collect the desired data and examines the data with a descriptive-analytical method. ConclusionHegel's philosophy, methodology, and valuable critiques present an outlook that thinks about modernity, instead of being oriented towards the Enlightenment era of his time. Because, basically, from Hegel's point of view, modernity is a bridge in the evolution of the soul towards freedom, and in this way, the self-awareness of the soul is the most important characteristic of the new era. In summary, for the purposes of this research and its main question, what is certain is that Hegel rejects the political theory of social contract that philosophers such as Locke and Rousseau established and views them as inefficient abstract concepts and, by rejecting the abstract idealism of "Reason" and the empiricism of "History" as an independent and durable ground for authority, established a dialectical relationship between reason and history and thereby resolved some of the contradictions raised in the state's founding phase. He also, based the political right on having an independent nature from the state and supports the concept of political right where it maintains its idealistic aspect, but is based on a certain historical era. On the other hand, even though Hegel criticizes the extreme collectivism of Rousseau and the abstract individualism of Lockean liberalism, his divine and intrinsically purposive government tries to incorporate all the desirable features of these schools and support them. Hegel's goal was to achieve the desired political power system for Germany, and so in this way, he presented his government specially and distinctly from the democratic and liberal state-building philosophies of his time.But what are the characteristics of Hegel's ideal government? The key to understanding this question lies in the ideal concept of political right in Hegel's belief and his opinion about the inherent rationality of the state. From Hegel's point of view, the state is the manifestation of realized freedom and the perfect ethical life. Therefore, the state is an ethical soul that emerges in the form of an essential will by becoming more transparent and definite. Therefore, the state is nothing but "the action of the spirit in the world" realized in a self-conscious form. But since the soul in Hegel's philosophy has an absolute, and even divine essence, according to Hegel's definition, the state is God's will in the world. Such a government is not a responsible or parliamentary government, and this was at a time when the belief in a responsible government was considered the most important feature of 19th-century liberalism. Overall, by studying the philosophy of rights that Hegel talks about, it cannot be said that he does not explicitly accept responsible government, nor can it be said that he explicitly rejected such a government.
Public Law
Faeghe Chalabi; Seid Hossein Malakooti Hashtjin; Mohammad Reza Mojtehedi; Ayat Mulaee
Abstract
The constitution should be a symbol of flexibility in the face of social challenges. In most constitutions, it is possible to amend the constitution through a formal revision. The difficulty of the formal reform process has led constitutionalist democracies to believe that a formal revision of the constitution ...
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The constitution should be a symbol of flexibility in the face of social challenges. In most constitutions, it is possible to amend the constitution through a formal revision. The difficulty of the formal reform process has led constitutionalist democracies to believe that a formal revision of the constitution cannot be the only way to achieve the desired goal of meeting the constitution with the needs of society, parties, and people on the constitution in the constitutional law. In this respect, two approaches of originality and dynamism are noteworthy. The controversy between the originalists and the dynamic constitution suggests that in addition to the formal method, constitutions can be reviewed and changed informally. In this article, the concept and principles of the dynamic constitution as a new theory, survey the limits of living constitution interaction in the face of the originalist constitution, the relationship between the living constitution and the legitimacy of the political system, and its confrontation with the rule of law are examined. The main goal of this article is to provide the basis for further research and localization of the present theory by examining the dimensions and challenges of the forthcoming issue to address the shortcomings of the Iranian constitution in the face of the current challenges of the constitution.
