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.
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
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.
Mohammad Javad Javid; Nasirollah Hasanlou
Abstract
"Civil disobedience" as a form of protest in socio-political activities is the act of deliberately violating a valid law for moral protest against the government. The justification of this socio-political idea has seen ups and downs in parallel with the emergence of widespread protest movements against ...
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"Civil disobedience" as a form of protest in socio-political activities is the act of deliberately violating a valid law for moral protest against the government. The justification of this socio-political idea has seen ups and downs in parallel with the emergence of widespread protest movements against governments in the Western world. One of the concerns of accepting this idea in religious government is philosophical justification based on the existence of a moral and political obligation to "obey the law" in law-abiding religious governments. Borrowing from the posed subjects in the legal and political literature of the West about the two mentioned doctrines, this article deals with the feasibility of combining civil disobedience and the rule of law in religious governments. The result is to prove the possibility of establishing a relative interaction between these two doctrines and accepting the degree of civil disobedience and the rule of law in religious government by separating the formal and substantive analyses of the rule of law. The research method of this writing is descriptive-analytical.
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.
Ali Reza Jalali; Mohammad Abouata
Abstract
The spread of Coronavirus in Italy has created the conditions for the government to declare the State of emergency. It has given the opportunity to manage the crisis, but has also limited people's fundamental rights. In this research, through the deductive-descriptive method, we will try to answer this ...
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The spread of Coronavirus in Italy has created the conditions for the government to declare the State of emergency. It has given the opportunity to manage the crisis, but has also limited people's fundamental rights. In this research, through the deductive-descriptive method, we will try to answer this main question: the actions of the Italian government to counter Coronavirus until what point are compatible with the fundamental rights present in the Constitution? After describing the concept of State of emergency, the government's decisions and the challenges about restriction of fundamental rights, we conclude that the government's actions have had a very negative impact on fundamental rights and freedoms. Not only these emergency decisions have had a very negative impact on people's rights in a democratic system, but the lack of parliamentary oversight about the actions of the Executive makes it reasonable to take a critical look at the actions of the Italian government.
Mahdi Mahdavizahed
Abstract
Interdisciplinary studies are currently a hot topic in legal academia, therefore one should distinguish four types in the sociological approach to law: disciplinary, interdisciplinary, multidisciplinary and transdisciplinary studies. Public law and sociology are strongly interconnected but the possibility ...
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Interdisciplinary studies are currently a hot topic in legal academia, therefore one should distinguish four types in the sociological approach to law: disciplinary, interdisciplinary, multidisciplinary and transdisciplinary studies. Public law and sociology are strongly interconnected but the possibility of multidisciplinary in law is of concern here.
In this study, it is argued that, sociology of public law as a multidisciplinary field of studies has affected theory of state. The study of public law and sociology rests on the belief that legal rules and decisions must be understood in the context. Public law is not autonomous, standing outside of the social world, but is deeply embedded within the society.
In this paper, it is illustrated how different methods can be used in researching law and legal phenomena, and how methodological issues and debates in sociology are relevant to the study of law. It is concluded that sociology of public law is based on “legal realism” and the concept of rule of law is shaped from this theory.
mahdi rezaei; nima khosravi
Abstract
The main idea of this article is that in contemporary legal thinking, the duty to give reasons has become an inseparable part of Rule of Law. However, it should be asked that how the Rule of Law can be understood as constituting the “Rule of Reasons” principle? The very notion of this article ...
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The main idea of this article is that in contemporary legal thinking, the duty to give reasons has become an inseparable part of Rule of Law. However, it should be asked that how the Rule of Law can be understood as constituting the “Rule of Reasons” principle? The very notion of this article is the bond relationship between principles of duty to give reasons and Rule of Law. Contributors to this paper claim that giving reasons uphold procedural and substantive conceptions of Rule of Law. Giving reasons is the necessary part of the procedural notion since this notion requires that all the state acts must be done in a predictable and consistent way which justifies them by reasons. Also, giving reasons can serve the central part of substantive notion of Rule of Law: the main aim of this conception is to ensure certain fair goals and requiring public officials to give reasons ensures fair conduct toward citizens. As conceptualizing this relationship, in order to reach a contextual evaluation of Rule of Law, theoretical frameworks of it shall pay more attention to duty to give reasons.
Abstract
The rule of law meaning to limitation of arbitrary power and conservation of fundamental individual rights and freedoms , is one of the democracy foundations. The Rule of law in international level is instrument for preservation of international peace and promotion of human rights. In attention to structure ...
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The rule of law meaning to limitation of arbitrary power and conservation of fundamental individual rights and freedoms , is one of the democracy foundations. The Rule of law in international level is instrument for preservation of international peace and promotion of human rights. In attention to structure and realities of international community , apply of rule of law differently in international level, therefore elements of rule of law such as determinacy , generality , clarity , stability, equality before the law and … must explain differently in international community. In addition to , horizontal structure and absence of compulsory jurisdiction and judicial review for the courts , don’t allow a regime based on the constitution. In this thesis , authors in the one hand explain to position of rule of law in international level and the other review of present challenges for the conservation and promotion of rule of law in international system
Ahmad Markaz Malmiri; Mahdi Mahdi zadeh
Volume 17, Issue 47 , October 2015, , Pages 157-184
Abstract
Scattered and casual legislation is one the deficiencies inflicted on legislative system of Islamic Republic of Iran. Scattered legislation may be defined as disparate, casual and excessive legislation with almost no serious attention paid to other interrelated parts of the legal system. This may be ...
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Scattered and casual legislation is one the deficiencies inflicted on legislative system of Islamic Republic of Iran. Scattered legislation may be defined as disparate, casual and excessive legislation with almost no serious attention paid to other interrelated parts of the legal system. This may be the result of legislators rush towards exercising their legislative power with little recourse to their surveillance capacities. Casual legislation may particularly harm people’s accessibility to justice generally promised by the legal system (that is people consciousness and awareness of laws) which is considered as a pivotal characteristic of the rule of law. A brief look at the laws passed by Iran’s congress may readily lead us to various instances of casual and scattered lawmaking. This article reviews and categorizes various lawmaking practices in regards with modification, revocation, cancellation and revalidation of laws as the most evident instances of scattered lawmaking in Iran. In fact, we may argue that the rule of law may not be satisfactorily attained unless lawmakers have due diligence and tactfulness in their job so that people and law enforcement authorities are expected to be aptly aware and are likely to adhere to the laws so to be ratified. It seems that obscurity and inaccessibility of laws and regulations in Iran have led to the inefficiency of its legal system and thereby have hindered optimum realization of the rule of law
Mohammad Hossein Zareei; Khadijeh Shojaeian
Volume 16, Issue 45 , April 2015, , Pages 105-129
Abstract
In this article, we want to analyze the essence of the principle of unreasonableness as a judicial review ground in common law and its application in the jurisprudence of the Administrative Justice court. For this purpose, its concept, the twofold conception and categories of unreasonable decisions in ...
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In this article, we want to analyze the essence of the principle of unreasonableness as a judicial review ground in common law and its application in the jurisprudence of the Administrative Justice court. For this purpose, its concept, the twofold conception and categories of unreasonable decisions in UK case law are examined. Also, cases of Administrative Justice Court are expressed that could be construed in the light of unreasonableness. There are cases in jurisprudence of Administrative Justice Court that are included in expansive reading of unreasonableness for example reversal of principle of equality and non-discrimination, rationality and flaws in logic and reasoning, fair balance between relevant considerations, the failure of a public authority to have regard to a relevant consideration and taking into account of a legally irrelevant consideration, mistake of fact and oppressive decisions for example a gratuitous interference with the rights of the occupier and preventing to access to court.
kheirollah parvin; hosein delbar
Volume 15, Issue 42 , January 2015, , Pages 111-140
Abstract
Although often decisions have been made and some proper laws been determinedfor solving some problematic issues, wrong or inefficient ways of implementation oflaw and executive and administrative systems mismanagement which cause thefailure of reaching the determined goals are characterized in the assessment ...
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Although often decisions have been made and some proper laws been determinedfor solving some problematic issues, wrong or inefficient ways of implementation oflaw and executive and administrative systems mismanagement which cause thefailure of reaching the determined goals are characterized in the assessment phase.Therefore, the main purpose of present essay through the first chapter is theinvestigation of the role of surveillance institutes in Iran while having the emphasison the status of the State General Inspection Organization in the process of publicpolicy making in general, and in particular is the investigation of this role in theevaluation process of laws and provisions. In the second chapter, the role ofinspection organization is addressed as well as management organization accordingto the management services in the country in the phase of “inspection ofperformance and evaluation of policies”. Achievements are good evidences to showthat these two bodies are well qualified to reform and offer the mechanisms whichmight be able to influence the performance of executive systems and can also beable to fulfill the change from the inspection- audit approach to the inspectioncorrectivesurveillance.
