Public Law
malihe masoudi; Mohammad Emami; seyyed mojtaba vaezi
Abstract
A concrete approach to concepts is one of the main features of Hegel's philosophy. In Hegel's view, the concrete concept has precedence over its subjects, and what is objective is the realized idea or concept, while the abstract concept is formed through mental representation and abstraction ...
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A concrete approach to concepts is one of the main features of Hegel's philosophy. In Hegel's view, the concrete concept has precedence over its subjects, and what is objective is the realized idea or concept, while the abstract concept is formed through mental representation and abstraction operations in relation to the researcher's affairs, and takes its content as a priori. The concept of the constitution in Hegel's intellectual system is defined as the basic principles of the last stage of the evolution of the soul in history, that is, the state. According to Hegel, any kind of abstract and a priori definition of the constitution is one-sided and devoid of truth and presents the constitution as an unstable and random existence. Therefore, the concept of the constitution should be deduced from the text of the phenomenology of the soul. Hegel's concrete approach to the concept of the constitution departs from its conventional understanding in the constitution and has important effects; Among other things, the constitution, like the soul of the nation, is not a fake and artificial thing, and the question of who drafted the constitution is meaningless, and imposing the constitution on a nation is also rejected.
Public Law
Hasan Mohammadi; Ali Mashhadi
Abstract
IntroductionPerfectionism, a long-standing influence on political theories of the state, is deeply connected to the concepts of the moral state, utopia, virtuous society, societal priorities, and the precedence of the good. Yet, the public sphere—conceptually emerging and evolving within modern ...
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IntroductionPerfectionism, a long-standing influence on political theories of the state, is deeply connected to the concepts of the moral state, utopia, virtuous society, societal priorities, and the precedence of the good. Yet, the public sphere—conceptually emerging and evolving within modern political thought—has been regarded by contemporary political thinkers as a normative domain and a rationalizing force for the state. One of the main approaches to the Constitution of the Islamic Republic of Iran (IRI) is perfectionism. This raises an important question: Considering the principles and pillars of the public sphere, can it be realized within the perfectionist approach to the Constitution in the Iranian legal system? Literature ReviewIn an article titled “From Privatization of Public Law to Publicization of Private Law: Legitimacy and Intervantion of Liberal Capitalist State in the Thought of Habermas,” Mashhadi (2015) explored the crisis of legitimacy in modern Western societies. According to Mashhadi, Habermas argues that the state in capitalist societies exists in a contradictory condition. The intense conflict of interests between classes of society means that whether the state intervenes in the economy or refrains from doing so, it ultimately faces a crisis of legitimacy. From a public law perspective, the thesis From Public Spaces to Public Spheres: Examining the Position of Public Spaces in the Laws of the Islamic Republic of Iran (Noubahar, 2013) examined examples of public spaces—including mosques, squares, and streets—within the IRI’s laws. Materials and MethodsThe present study used a descriptive–analytical method to address the research question. Moreover, the data was collected through library research. Results and DiscussionDespite traces of an impartial approach in the IRI’s Constitution, the perfectionist approach remains dominant. For instance, the preamble defines the purpose of the state as striving toward Allah, which is also reinforced in various parts of the Constitution (e.g., Articles 2 and 3) that assign specific duties to the state. Regardless of the compatibility between a perfectionist approach to the state and the concept of a modern constitution, the central question is whether the emergence and development of the public sphere is possible within this specific reading of the IRI’s Constitution.The perfectionist reading of the Constitution is based on the idea of guiding the people through the state, which assumes responsibilities beyond those specified in neutral approaches. In the perfectionist interpretation, the objective of the state is to establish a moral society in which the good of each individual is ensured by the state. Therefore, the role of the state extends beyond maintaining order or providing public material interests; it encompasses shaping the lives of citizens under its leadership. This reading finds significant support in the IRI’s Constitution. Key elements include defining a moral purpose for the state formation (the people’s movement toward Allah), specifying a utopia (the Islamic model society), deriving legitimacy from a source beyond the public will (assigning sovereignty and legislation to God), emphasizing the concept of a righteous ruler over an elected one (where the righteous govern the country), presenting a different reading of the political population (prioritizing the concept of Ummah over the nation), and determining the nature of the good life and the superior good (a faithful life). These thematic axes form the core of the perfectionist approach embedded in the Constitution. According to the deliberations of experts for constitution, these key themes also guide the primary approach of the majority of experts. Notwithstanding, the public sphere, as a concept rooted in modern political thought, is based on principles that contradict the foundations of the moral state—a product of the perfectionist approach to the Constitution. The public sphere relies on the idea of constituent power, which emphasizes communicative action as a necessary means to address the shortcomings of representative democracy, particularly regarding legitimacy—which is a key principle of democratic states. However, the legitimacy derived from the perfectionist approach to the Constitution is based on the rule of norms that originate not from social system but from the state, which is tasked with realizing the Islamic utopia by adhering to original Islamic norms. In this view, the state is not an embodiment of the people’s political will but rather the realization of a political ideal of a nation of the same faith. In other words, the political society of Ummah, as a population with the same thought, replaces the nation as a political entity.Therefore, key pillars of the public sphere—freedom, equality, and inclusivity—are shaped by this particular conception of political society. In the establishment of an Islamic model society, the essential factors are supposed to be Islamic standards, which are to serve as the foundation of the moral state. Consequently, at best, what emerges is not a true public sphere but rather a domain of the moral state, where the pillars of the public sphere (e.g., freedom, equality, and inclusivity) exist within a strict ideological framework. Furthermore, the perfectionist state is built on the precedence of the good over rights—the belief that, in the pursuit of Utopia, the state shall act as guides leading people toward perfection and is primarily responsible for defining and ensuring the good life. Consequently, the concept of justice, which is central to the idea of rights, is fused with the concept of virtue, and the state becomes the key agent in realizing the good as the foundation of virtue. The concept of nation is reinterpreted through the lens of the concept of Ummah, effectively eliminating ethical-philosophical pluralism. In this reading, individuals are not regarded as rights-holders but rather as duty-bearers or obligors whose perfection is defined by the state’s conception of the good, and who should abide by the norms that form the good independently of the social context. Thus, in a broader sense, political and social freedoms within the perfectionist approach to the Constitution are shaped by the prioritization of the good over rights, and their realization is subject to the state’s oversight and regulation. Within these interpretations, the perfectionist reading of the IRI’s Constitution is fundamentally at odds with the core principles of the public sphere, including freedom, equality, inclusivity, legitimacy based on public will, ethical-philosophical pluralism, and most importantly the separation of justice from virtue, which underpins the principle of prioritizing rights over the good. ConclusionRegardless of the value placed on the public sphere or the broader relationship between the modern constitution and the perfectionist conception of the state, the realization of the public sphere may be possible under alternative approaches to the IRI’s Constitution. However, within the perfectionist reading in Iran’s legal system, the foundations of the public sphere are in direct conflict with constitutional principles, making its realization impossible.
International Law
Seyed Hossein Malakooti Hashjin; Nasim Soleymani nejad; Seyed Ali Mousavi
Abstract
Introduction In today's world, with phenomena such as globalization, rapid changes in the international arena, and their effects on human rights and freedoms, the significance of the internationalization of constitutional laws as a link between the public laws of states and international law is growing ...
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Introduction In today's world, with phenomena such as globalization, rapid changes in the international arena, and their effects on human rights and freedoms, the significance of the internationalization of constitutional laws as a link between the public laws of states and international law is growing daily. Initially, constitutions were primarily considered as national documents confined within a country's borders. However, this perspective no longer holds in the era of globalization. constitutional rights, as a subset of public rights, are no exception. Nevertheless, the internationalization of constitutional laws continues to face numerous challenges and raises many controversies. For instance, if a domestic constitution is influenced by international law, it might undergo substantial changes. This process reflects that national constitutions are essentially part of a broader international legal framework. The inclusion of human rights in domestic constitutions, the increase in the convergence between national and international constitutions, and the alignment of the legal systems with the global market all contribute to the internationalization of constitutions. Furthermore, in entities like the European Union, internationalization occurs partially or regionally which forms the legal framework for the member states. Additionally, focusing on shared ideological principles among governments can lead to the transnationalization of certain constitutional principles. This not only serves to hold governments accountable but also allows for a comparative assessment of judicial practices concerning common issues. In general, the internationalization of constitutional laws can be viewed as a tool to curb the political powers of the government and officials within the framework of harmonized and effective legal principles. This article introduces and explores different facets of this process. Research Questions What are the opportunities and challenges before the internationalization of constitutional laws?What sets the ground for the creation and the status of cross-border principles, and what is their impact on national constitutions? Literature ReviewIn delving into the research background on the internationalization of constitutional laws, it is pertinent to consider factors such as governments' accession to documents related to or containing provisions on international human rights and the shifts in the global legal atmosphere. These steps signify changes in the global legal thinking that play a role in shaping the constitutions of nations. The influence of regional organizations like the European Union in instigating changes in the constitutional laws of member states is also noteworthy. These regional interactions can directly affect the constitutional laws of member states in economic, legal, and political aspects. In this context, many articles have examined the intricate interplay between the Constitution, international law, and global governance[1], as well as the potential for the internationalization of constitutions in different countries through adherence to international documents.[2] However, few sources have tackled the existing challenges and the future prospects. Methodology This research is fundamental research, employing a library-based method to collect and review data from documents, books, writings, articles, and foreign sources. In terms of research methodology, this study follows a non-comparative approach wherein it first delves into the factors and the driving forces behind the shift toward internationalization of fundamental laws, the second part focuses on delineating and explaining partial or regional internationalization and the associated challenges, and finally, the third part presents the outlook of this initiative. ConclusionThis research aims to provide an in-depth understanding of the role of international human rights in national constitutions and the extent to which governments adhere to these documents. It also seeks to elucidate the impact of changes in global legal thinking on the constitutional frameworks of countries and their alignment with international law. The study investigates the role of regional organizations such as the European Union in promoting and facilitating the internationalization of constitutional laws in specific regions and how they affect the methods for adapting and formulating constitutional laws. In conclusion, the study finds that firstly, despite the debates among legal scholars, transnational principles are not always universally applicable, sometimes they are specific to particular geographical regions or their religious beliefs. furthermore, these principles allow oversight of governments and dual control through the application of binding domestic and international mechanisms. additionally, they enable a comparative examination of the judicial practices across different countries on common issues. In conclusion, the essay provides that the internationalization of constitutional laws can serve as a tool to underpin the restraint of political powers within the framework of harmonious and effective legal principles. [1]. Vicki C. Jackson, Paradigms of Public Law: Transnational Constitutional Values and Democratic Challenges, International Journal of Constitutional Law, (2010) 8.[2]. Wen-Chen Chang, ‘An Isolated Nation with Global-minded Citizens: Bottom-up Transnational Constitutionalism in Taiwan, National Taiwan University Law Review, (2009) 4(3).
Public Law
Mohammad Mahdifar; Faezeh Rafatnejad
Abstract
IntroductionThe freedom of assembly and procession is a fundamental civil and political right recognized in numerous human rights documents and legal systems, including that of the Islamic Republic of Iran (IRI). The question arises as to what specific stance the IRI’s constitutional law takes ...
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IntroductionThe freedom of assembly and procession is a fundamental civil and political right recognized in numerous human rights documents and legal systems, including that of the Islamic Republic of Iran (IRI). The question arises as to what specific stance the IRI’s constitutional law takes on this kind of freedom. In this respect, the current study aimed to clarify the relationship between Principle 27 of the Constitution and other principles. Using a jurisprudential and legal analysis, the research sought to examine the position of Principle 27 within the broader context of the IRI’s Constitution. The analysis was to evaluate the right to assembly and procession in the Iranian legal system, offering insights into the ideal legal standard for freedom of assembly and procession. Literature ReviewThe Persian legal literature provides valuable but limited research on this topic, highlighting a notable gap in analytical approaches to examining the issue. To address this gap, the present study employed an analytical framework grounded in jurisprudential and legal analysis. Materials and MethodsAs a qualitative inquiry, the present study used a library research method to collect the data. Moreover, a jurisprudential and legal analysis was conducted to analyze the data and examine the position of Principle 27 within Iran’s constitutional law. Results and DiscussionThe findings revealed several key insights. First, Principle 27 of the Constitution of the IRI, grounded in religious teachings and aligned with international and regional human rights documents, it recognizes the right to freedom of assembly and procession with minimal restrictions. Second, understanding the absolute right embedded in Principle 27 within Iran’s broader legal framework requires a holistic view of the Constitution and an assessment of how it relates to other constitutional principles. The analysis of this relevance revealed the universality of the right to freedom of assembly for all citizens, showing that it extends beyond the two specific restrictions stated in Principle 27. Finally, a review of domestic legal documents and executive procedures revealed contradictions with the theoretical field of constitutional rights in Iran. These legal frameworks, contrary to the constitutional perspective, adopt a permit-based approach that is notably stricter than similar systems in other permit-based legal systems. Moreover, the study advanced the argument that the lack of legislation on the part of the Islamic Consultative Assembly (the Iranian Parliament)—concerning the right of all citizens to hold assemblies and processions—does not render such gatherings illegal. If an assembly or procession does not conflict with the governing laws within the legal framework of the IRI, it is considered legal under Principle 27 of the Constitution. ConclusionA holistic view of the Constitution requires that the right to freedom of assembly and procession outlined in Principle 27 be considered in conjunction with other constitutional principles. The application of Principle 27, which is subject to two specified restrictions, falls under the jurisdiction of ordinary law tasked with determining issues such as the implementation procedures, conceptual scope, mechanisms for ensuring compliance, and guarantees against violations. In this context, valuable insights can be gained from historical interpretations, such as an analysis of the debates among members of the Assembly of Experts for the Constitution, to reveal the intent behind drafting Principle 27 as well as the historical, political, and social contexts at the time. Additionally, early experiences and real-world implications of either overly broad or overly restrictive interpretations are crucial for establishing the right to assembly and procession. These insights can inform the principles and conditions necessary for relevant legislation that can effectively embody this fundamental right, helping to institutionalize, stabilize, and strengthen it in future legal procedures.There are several important points to mention. First, the freedom of assembly and procession recognized in the Constitution is incompatible with the permit system. On the one hand, it is essential to uphold the universality of this freedom, which should not require obtaining permission for its exercise. On the other hand, the reluctance of the members of the Assembly of Experts for the Constitution to specify restrictions that would put the fate of assemblies in the hands of the government suggests that it is not feasible to orient Principle 27 of the Constitution toward a permit-based approach through ordinary law. Second, the right to assemble should not be restricted to a specific group. Principle 27 recognizes the right to assembly as a civil and political right for all citizens. Limiting this right to certain groups, such as legal political parties, contradicts the meaning and rationale of this principle outlined in the Constitution. Third, there should be maximum reservations regarding the prohibition of gatherings. In cases where a gathering or procession conflicts with restrictions such as public order, the legislator should refrain from declaring a ban or dispersing the gathering as the first response; this should only be done as the last resort. It is important to emphasize that the freedom of assembly must be protected to the greatest extent possible. Any restrictions should be imposed only to the extent necessary to manage the situation, rather than resorting to prohibitions as an immediate response. Fourth, clarity in the text of the law is essential. This principle, which generally governs the drafting of legislation, should also apply to laws related to Principle 27. Specifically, any interpretable limitations—such as the cases causing disturbances to the foundations of Islam—should be clearly defined in the law. Failing to do so will undoubtedly create problems for citizens in exercising their rights and may hinder the administrative police and judicial officials in fulfilling their duties. By precisely specifying all processes and avoiding vague language, the rights of all parties can be effectively protected from violations.
Public Law
Fardin Moradkhani
Abstract
IntroductionAlthough Hannah Arendt cannot be called a theorist of constitutional law, her brilliant reflections on some legal concepts have given her thought a special dimension. She, who was always interested in the public domain and political thought issues, realized the importance of some legal concepts, ...
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IntroductionAlthough Hannah Arendt cannot be called a theorist of constitutional law, her brilliant reflections on some legal concepts have given her thought a special dimension. She, who was always interested in the public domain and political thought issues, realized the importance of some legal concepts, especially constitutional law. Constituent power and constitution are two important concepts in Arendt's thinking. Arendt's distinctions between the American and French revolutions are actually a way to understand the Constitution and the Constituent power in her thoughts. Knowledge of law and legal concepts also have an important place in Arendt's thought. It is necessary to deal with these researches for several reasons; these studies link legal issues to political and philosophical ideas, help advance matters related to the theories of constitutional law, and make the Constitution distance itself from text-oriented positivist views that ignore history and reality.Research Question(s)This article seeks to answer the question: “What Arendt's understanding is of the constitution and Constituent power as the creator of the constitution, and how she examines the different nature of the French and American revolutions to explain the concept of the constitution and Constituent power”.Literature ReviewThe interpreters of Arendt's thought have mostly neglected the importance of the concept of the constitution in her thinking, but in recent decades, especially with the rising influence of Carl Schmidt's ideas in constitutional law, many have relied on Arendt to criticize Schmidt’s ideas. Also, essays and books were written about Arendt's legal philosophy. Even though that many of Arendt's works have been translated into Persian, her legal theories have never been discussed. The only thing that can be seen in the Iranian legal literature about Arendt is her criticisms of the concept of human rights. MethodologyIn this article, we have researched and discussed issues with a descriptive-analytical method and by relying on the writings of Arendt and her commentators. ResultsThe constitution and constituent power are connected. The constitution is considered the most important legal document of a country. It is written by the constituent power which constituent power belongs to the people and the sovereignty of the people -sovereignty means the superior power to give orders. Arendt, fully familiar with the issues and theories of constituent power, makes a distinction between the American and French experiences regarding constituent power in order to explain constituent power and criticize it. Arendt understood constituent power very differently from what Schmidt theorized so complicatedly. Both Schmidt and Arendt have emphasized the role and power of people. For Schmidt, this power is absolute and beside the constitution, but for Arendt, it is limited and derived from the authority of pre-existing institutions. Also, both Arendt and Schmidt are indebted to Max Weber’s thinking. Arendt also stands against the constituent power and general will theories in the thought of Sieyès. According to Arendt, Sieyès has claimed the constituent power i.e., the nation to be a permanent state of nature. She has tried to criticize the supporters of public will and the strong role of the people. According to Arendt, emphasis on the will of the people makes the law in totalitarian governments a tool for the government, as a representative of the people which it can easily use to violate the constitution.She also discussed the concept of law based on what she theorized about constituent power and the Constitution. Arendt believed that the people, as the constituent power, write the constitution, but the ordinary law that is written in the parliament is no longer under the absolute will of the people and is bound and limited by the constitution. According to Arendt, in both the Roman and Greek experiences, law was man-made. The Greek nomos and the Roman lex did not have any divine origin and there was no need for legislation that was outside and above the laws, and there was no need to obtain inspiration from God. The concept of divine law required that the legislator be outside and above the circle of laws that he enacts. Arendt's analysis of Rousseau's influence on the evolution of the French Revolution led her to the conclusion that since then, the concept of the nation led to the idea that law should be the product of the people’s will, and thus the concept of law gained a new meaning thereafter. ConclusionHannah Arendt is one of the most important thinkers of the 20th century. Her thought system covers a wide and complex purview, and commentators of her thought have discussed various philosophical, political, and social aspects of her theories. One of the important aspects of Arendt's thinking is her legal philosophy, which has been less discussed than other aspects. Her legal philosophy covers a wide area in the philosophy of law, criminal law, international law, human rights, constitutional law, and administrative law, analysis of which requires writing numerous articles. In this article, only one of Arendt's theories, namely the constitution and its relationship with the constituent power, was discussed. For a more precise understanding of the Constitution, one refers to its author, that is, constituent power. Her understanding of the constituent power is different from the Western European tradition, from Sieyès to Carl Schmidt, and criticizes the exaggeration of the role of the people. Undoubtedly, the fate of the Weimar Republic and the bitter experience of 20th-century Europe, the emergence of totalitarian regimes in Germany and the Soviet Union, and her life experiences in America have influenced these ideas. regard to Arendt is increasing day by day in the world of legal thought and philosophy, and many aspects of Her thinking still need to be discussed.
Public Law
Javad Yahyazadeh; Ali Farhadian
Abstract
1. IntroductionThe most important or one of the most important concepts in the legal sciences and legal systems is the controversial concept of “right” which has a long history behind it. In the meantime, “The right to be wrong” has also entered legal texts and documents in addition ...
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1. IntroductionThe most important or one of the most important concepts in the legal sciences and legal systems is the controversial concept of “right” which has a long history behind it. In the meantime, “The right to be wrong” has also entered legal texts and documents in addition to theory. This right is the result of the growth of rights and the product of many centuries of struggle between the government and citizens in Western liberal thought and the result of various social, economic, and political happenings. The "right to be wrong" in a simple and concise sense, means respecting the conscience of others, even when we are sure they are wrong. In other words, this concept means non-interference of others in the wrongdoing of the right holder. Based on this, a person can build his moral system in such a way that, even according to others, is considered wrong, unjust, or immoral. "Right to die" or "Right to refuse medical treatment" and "Abortion", "Right to choose a racist party", and "Homosexuality" and... are some clear examples of the right to be wrong. Right to be wrong, which emphasizes the trans-ethical nature of rights by differentiating the right in the objective and subjective sense i.e., between "being right" and "having a right", reveals the content of the right in a new sense. Acknowledging the concept of having a right to be wrong in legal systems implies the acceptance of the principle of tolerance in regulating and harmonizing the legal relations of citizens and accepting the concept of "pluralism" instead of "plurality". Literature ReviewComparing the concept of the right to be wrong with the basic foundations of the legal system of the Islamic Republic of Iran voiced in the constitution shows that it cannot be assumed that this concept is accepted by the constitutional legislature through neither the textualist, structuralist nor intentionalist interpretation methods. Reflecting on the fourth and fifth articles, the twenty-sixth and twenty-seventh in particular, the sixth paragraph of article 2, and finally the thirteenth article of the constitution, confirms the claim of the authors in this regard with a loyal and faithful interpretation of the text and the structure of the constitution. Also, referring to the constitutional negotiations documents -as an important source in understanding the fundamental rights of societies- in an attempt at an intentional interpretation, does not open a way to apply the concept of right to be wrong in this system. However, using the philosophical hermeneutic method instead of the previous interpretive methods, which seeks a dynamic interpretation of the text by understanding the "meaning of the meaning", while paying attention to the "requirements of the time", "the historicity of the text" and finally "the compromising between of the views of the author and the interpreter", makes the idea of accepting the right to be wrong in this legal order and system possible. MethodologyIn this research, in addition to clarifying the concept, the theoretical foundations and justifications of the "right to be wrong", and emphasizing its prominence and prevalence in legal systems, its possibility in the Constitution of the Islamic Republic of Iran was measured and examined through the hermeneutic method. Discussion The Guardian Council, which according to Article 98, is the only official interpreter of the Constitution of the Islamic Republic of Iran, has prevented the possibility of using a dynamic interpretation method, especially the new hermeneutics method, and refuses to accept the right to be wrong since its establishment. This institution has only authorized and used the two methods of textual interpretation (with an emphasis on the literary meaning of the word) and intentional interpretation, in the framework of the principles of Shia jurisprudence and based on Shia’s thought system in the interpretation of the holy texts and avoiding self-serving interpretation. This has become an issue that, of course, can be revised to make the domestic legal system more efficient. Reflecting on the capacities of Imamiyyah jurisprudence in identifying the concept of the right to be wrong and its application in domestic law and constitution, of course, requires another time. ConclusionThe findings of this article show that the Islamic vision accepted in the Constitution of the Islamic Republic of Iran has distinct principles regarding rights with a liberal point of view, which has manifested itself in the form of the Sharia law governing the Constitution. "God-centeredness in all matters", distinguishing between "God's right" and "people's right" and finally the supremacy of "natural rights" over "conventional rights" are unchangeable and unbreakable elements in Islamic thought. According to this view, human rights are conventional and contractual, and nature, law, and above all, human beings, do not have inherent rights. it is through God-given rights that human rights are valid. Keywords: Right, Wrong, Hermeneutics, Constitution, Islamic Republic of Iran
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.
Dariyoush Zarouni; Ali AKbar Gorji; Behroz Behbodian
Abstract
The citation of constitutional principles in judgments of the courts is one of the issues related to the evidence of the verdict. It is obvious to cite the principles of the constitution in the constitutional courts, but in ordinary courts, i.e. criminal, legal and administrative courts, not all the ...
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The citation of constitutional principles in judgments of the courts is one of the issues related to the evidence of the verdict. It is obvious to cite the principles of the constitution in the constitutional courts, but in ordinary courts, i.e. criminal, legal and administrative courts, not all the principles of the constitution can be cited, and only some of the principles can be invoked. The inviolability of a country's constitutional principles in court rulings depends on the type of system of compliance of the statutes of parliament with the constitution, the extent of the constitutional principles, the substantive and formal principles contained in the constitutions, and the training and morale of judges in invoking constitutional principles. Due to the different effects of these factors from one country to another, the amount of citation to the principles of the constitution in the courts of different countries is not the same and is different. In Iran, due to the non-acceptance of judicial supervision in accordance with ordinary laws and the Constitution, most cases of citation to the Constitution in court rulings are related to principles such as Articles 37 and 49 that the Constitution in order to constitutionalize rights and other reasons, accepts citable principles.
Javad Taghizadeh; Morteza Nejabatkhah; Vahid Bakoei ketrimi
Abstract
The Egyptian Constitution of 1971 addressed the issue of the necessity of protecting the Constitution and established the Supreme Constitutional Court for this task. This body is currently is protecting the Constitution of 2014, as stipulated in Article 192 of the Constitution and Article 25 of the Supreme ...
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The Egyptian Constitution of 1971 addressed the issue of the necessity of protecting the Constitution and established the Supreme Constitutional Court for this task. This body is currently is protecting the Constitution of 2014, as stipulated in Article 192 of the Constitution and Article 25 of the Supreme Constitutional Court of Egypt, as the task of "monitoring the constitutionality of statutes and regulations". While the laws in the Egyptian legal system are diverse, the effectiveness of the constitutional review system requires the adoption of ordinances to expand the scope of the Supreme Constitutional Court. One of these ordinances is that all laws are subject to the constitutional review of the Court. Accordingly, ordinary laws, Supplementary Constitutional Laws, laws approved by the referendum, abolished laws, parliamentary internal regulations, international treaties, and decisions of the president are subject to the constitutional review of the Supreme Constitutional Court. This is a mark of the effective and genuine constitutional review system in Egypt. However, the Constitutional Amendment rule is out of the constitutional review scope of the Supreme Constitutional Court. In this article, the efficiency of the constitutional review of statutes in the law of Egypt has been investigated.
Ghodratollah Rahmani
Abstract
The formation of the Special Court for the Criminal Investigation of the Press over the past three decades, in addition to the main philosophy of the Constitutional regime under Article 168 of the Constitution - that holds the judicial protection of defendants from committing political crimes ...
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The formation of the Special Court for the Criminal Investigation of the Press over the past three decades, in addition to the main philosophy of the Constitutional regime under Article 168 of the Constitution - that holds the judicial protection of defendants from committing political crimes derives from peaceful conflicts against the government and the governing body, and not the perpetrators of various non-political crimes through the press - the jury's misrepresentation in the proceedings of the media and the issuance of non-specialized, unfair, disproportionate, contradictory, and sometimes unlawful regulations have resulted in continuous violation of the rights of individuals, judicial arbitrary discrimination and violations of law. The implementation of the "Political Crime Act" (due to the expectation of a single jury for political courts and press) in the final stages and the implementation of the recent "press and news agencies bill" (which has established effective regulations in the competence of press jury) can reduce the costs and damages caused by the jury's inadequate interventions and to compensate to a considerable extentthe disregard of the establishment philosophy of the jury and the purpose of the lawmaker in the incorporation of this institution in the judicial system.
yousef molaei; Mortaza Hajipour
Abstract
The purpose of the constitutionalisation of private law is the influence of constitutional norms on private relations. Contrary to traditional views, the guaranteed rights of the constitution are not the only means of defending individuals against the state, but it is necessary to apply and interpret ...
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The purpose of the constitutionalisation of private law is the influence of constitutional norms on private relations. Contrary to traditional views, the guaranteed rights of the constitution are not the only means of defending individuals against the state, but it is necessary to apply and interpret all branches of the legal system in the light of it.
Therefore, private rights are also dominated by these rights and people need to set up their own private relationships in the shadow of it. This research intends to examine the theory of the constitutionalisation of private law and its possible acceptance in Iran's law through a descriptive and analytical method. It can briefly be said that the basic rights over the entire legal system, especially indirectly, are superior. Also, despite the lack of a constitutional court in Iran, and the lack of a welcome judicial approach to Constitutionalisation, it should be said that iran private law has the necessary capacities for Constitutionalisation.
Mohammad Mansouri Boroujeni
Abstract
One of the most problematic in the initiation of law, is obeying the seventy-fifth article of the constitution that mandate the representatives to introduce the financial resource for execution of law, if that law leads to reduce the income of the government or increase the expense. The purpose of drafting ...
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One of the most problematic in the initiation of law, is obeying the seventy-fifth article of the constitution that mandate the representatives to introduce the financial resource for execution of law, if that law leads to reduce the income of the government or increase the expense. The purpose of drafting of the fifty-second and seventy-fifth has being to mandate legislator to maintain financial discipline in the budget and not to limit the legislative authority of Parliament. The constitution by separation between the "annual budget" and "law of budget", says that preparing the "annual budget" dependent upon the cooperation of the executive and Parliament, But it seems that in preparation of "Budget Law" there is no need for this cooperation and such a law can be prepared similar to other laws. Therefore, Parliament can propose and enact legal bills that have a financial burden, if that law not to affect the budget of that year and simultaneously the law of budget be amended for next years.
