Public Law
Seyed Naser Soltani; Faezeh Salimzadeh Kakroudi
Abstract
IntroductionConstitutions hold the status of being national treasures, cherished for their intrinsic value and their material significance. Prior to the formal inscription of written constitutional texts, foundational principles often took shape in the guise of established customs. Yet, the passage ...
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IntroductionConstitutions hold the status of being national treasures, cherished for their intrinsic value and their material significance. Prior to the formal inscription of written constitutional texts, foundational principles often took shape in the guise of established customs. Yet, the passage of time has highlighted the constraints of fixed principles when confronted with the dynamic demands of evolving societies and emerging generations. Should these principles fail to evolve in sync with contemporary concerns, even the most meticulously crafted written constitution risks becoming an archaic relic, relegated to obscurity on library shelves. Constitution Revision functions as an equilibrium between the twin poles of stability and transformation. It serves as a counterbalance that wards against the pitfalls of constitutional instability and ceaseless amendment, while simultaneously safeguarding the elasticity that codified principles. need to accommodate evolving circumstances The concept of constitutional revision is mentioned in the texts of codified constitutions in many legal systems. However, unwritten constitutional adjustments and revisions remain. Notably, in Iran, the interplay of customary transformations alongside formal amendments revealed an intriguing omission—namely, the absence of explicit reference to constitutional revision in the face of shifting societal paradigms. A parallel scenario arose post-Islamic Revolution when the developing Constitution of the Islamic Republic of Iran neglected to incorporate a provision for the revision of its textual framework. Only after the decree of Ayatollah Khomeini (RA) was the principle of revision formally enshrined within the constitution's text. Yet, despite this articulation, after more than three decades this principle still lays dormant. Simultaneously, in reality and practice, there have been undeniable modifications to the implementation and utilization of certain constitutional principles, alluding to a state of "unofficial" revision that contrasts with the structured processes outlined in the Constitution. The Comprehensive Nature of Constitutional ChangeA constitution, despite its comprehensive purview, seldom possesses the capacity to encapsulate the entirety of a political system. Irrespective of its encompassment of legal principles, even the most autocratic or democratic political framework grapples with the challenge of reflecting the evolving tapestry of political changes within the confines of a constitution. In instances where a nation's constitution remains ostensibly unaltered over prolonged periods, the possibility of a subtle, unwritten evolution looms large. This article tries to elucidate the framework of informal constitutional modification through established customs. Drawing from historical precedents predating the Islamic Revolution, as well as post-revolution occurrences, alongside a comparative exploration of revision experiences in global jurisdictions, the article embarks on a quest to address the central query: Can the constitution undergo revision by way of constitutional customs? Research BackgroundRegarding unwritten constitutional principles, the specific concept of constitutional revision remains shrouded in relative obscurity, with an absence of comprehensive articles or treatises delving into its intricacies. Iranian legal scholars, while contributing to the discourse surrounding formal revision within the constitution, have largely overlooked its informal, customary dimensions. MethodologyThis article embraces a descriptive-analytical methodology, an approach that holistically examines the subject matter in both its historical and contextual dimensions. The descriptive aspect entails a meticulous dissection of the historical progression of unwritten constitutional revision, tracing its evolution from pre-revolutionary times to the contemporary landscape. This chronological expedition provides invaluable insights into the genesis, evolution, and possible trajectories of unwritten revision. on the other hand, the analytical dimension engages in cross-examination of these historical occurrences, thereby identifying patterns, disparities, and commonalities that serve to shed light on the possibilities of informal constitutional change. This dual-method approach fosters a comprehensive comprehension of the subject matter by situating it within both its historical and contemporary setting. ConclusionAmendment and review of legal statutes are an essential part of societal development. The underlying philosophy of legislative endeavors centers on catering to societal needs, and as long as these needs persist, the volume of legal regulations inevitably increases. However, refinement and revision of existing laws rather than a sheer accumulation of statutes is an astute strategy. While the process of altering a constitution is inherently intricate, at its core, it is a form of legislation that demands responsiveness to contemporary demands. When textual revisions are hindered or fall short of aligning with the evolving demands, customary revision acts as a potential alternative. The identification and utilization of foundational customs play a pivotal role in the process of constitutional amendment. Nonetheless, caution must be exercised to prevent the misuse of these customs as tools for political manipulation. These fundamental customs, when synchronized with the tenets of governmental institutions, political actions, and the constitution's fundamental spirit, can facilitate the refinement and adaptation of core legal texts. The ambit of their influence, however, is subject to the limits and powers of governmental bodies and political actions. However, they cannot overrule the individual liberties enshrined within the constitution. In essence, these customs should function as instruments of societal progress in harmony with prevailing needs, rather than mechanisms for advancing political agendas.
Public Law
Seyed Naser Soltani
Abstract
This research aims to indicate the roots of public law in the Constitutionalism in which the prerequisites for the citizens of the country to participate in public affairs as well as the basis for developing the concept of political participation were provided. This study examines the topic in the works ...
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This research aims to indicate the roots of public law in the Constitutionalism in which the prerequisites for the citizens of the country to participate in public affairs as well as the basis for developing the concept of political participation were provided. This study examines the topic in the works of one of the famous jurists of this era. The concept of political participation should be developed by restricting both claims and obstacles. First, it had to constitutionalize the independent monarchy that it considered the whole country as its absolute property, and then recognized an authority for the public in public affairs, which was previously under the authority of the jurists. Both of these obstacles were removed through the concept of political equality. It was for years that concepts were being prepared in the workshop of Constitutionalism to create equality of humankind. Even a concept like representation was the result and implication of the concept of political equality. Within concepts such as "common house", "thirty crores" and "public affairs", the notion of political equality of the people of the country was developed and with the help of such foundation, thinking about such concepts was made possible. The present paper indicates that the emergence of these concepts was a sign of a fundamental change in the basis of sovereignty and its transfer from the king to the people on the one hand and the establishment of a kind of the public authority on the other hand.
Naser Soltani
Abstract
The Constitution must be regarded as one of the elements of a larger order, and the political system based on it, and the "text of the constitution" is just one of these elements. The relationship between political forces and their balance, as the context in which the constitution is flowing, directly ...
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The Constitution must be regarded as one of the elements of a larger order, and the political system based on it, and the "text of the constitution" is just one of these elements. The relationship between political forces and their balance, as the context in which the constitution is flowing, directly affects its life and expands it. In this article, we will draw a conception in which the constitution is not just a text but it includes also a bunch of non-written rules, which play a role in the political system. We are trying to find a fundamental notion on which this distinction is based. Legality and legitimacy are our criterions for such a distinction. We are trying to identify the moments in the political life of Iran in which these two conceptual couples (legality and legitimacy) have been revealed. For, we will identify these categories in the system of constitutional law in Iran, and show the importance of researching them. Research on the constitutional law in Iran, with lack of these rules, cannot provide a true picture of the Constitution.
seyed Naser soltani
Abstract
Legal expressions and concepts are abundant in the numerous fundamental texts of the modern political thought. The language of law has been one of the main means within which discussions about political thought has been taken place. Therefore, when these texts are translated into other languages, the ...
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Legal expressions and concepts are abundant in the numerous fundamental texts of the modern political thought. The language of law has been one of the main means within which discussions about political thought has been taken place. Therefore, when these texts are translated into other languages, the meaning and the content of the legal expressions and concepts in terms of their scope and connotations shall be considered. Only in this situation one can rely on these translations and they deserve to be cited. So the revision and reconsideration of these texts from the legal concepts point of view seem very useful and necessary. In this paper, focus has been on the public law expressions and concepts of the Persian translation of the Leviathan and their precision and accuracy is evaluated.
