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.
Hossein Fazli Maghsoudi; zeinalabedin Taghavi Fardoud; Alireza Saberian
Abstract
Property and the resulting rights have always been honored and protected, and of course, restricted and deprived. In the relevant laws and regulations, although property is one of the basic human rights, it may be violated and restricted in some necessities such as securing the public interests of society, ...
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Property and the resulting rights have always been honored and protected, and of course, restricted and deprived. In the relevant laws and regulations, although property is one of the basic human rights, it may be violated and restricted in some necessities such as securing the public interests of society, so that the damage leads to its deprivation and abstraction of property from the owner. The Islamic legislator has tried to expropriate property in accordance with property rights and according to the needs of society. Therefore, measures such as the provision of the Court of Administrative Justice and the Guardian Council have been considered in order to protect private property. In this article, which has been compiled in a library method, we will be in a position to answer the question of how the Court of Administrative Justice can prevent or protect the expropriation of persons, but the result is that the Court of Administrative Justice cannot prevent expropriation alone or without legal protection or fully protect the right to property.
