Public Law
Ayat Mulaee; Maedeh Soleymani Dinani
Abstract
Introduction
The constitution, as the supreme law of a nation, ensures the rule of law and citizens’ rights, protects human rights, and reduces the likelihood of arbitrary government actions. The establishment of the constitution is commonly considered the most effective means of upholding ...
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Introduction
The constitution, as the supreme law of a nation, ensures the rule of law and citizens’ rights, protects human rights, and reduces the likelihood of arbitrary government actions. The establishment of the constitution is commonly considered the most effective means of upholding constitutional values and protecting the individual’s fundamental rights. However, the absence of a written document of the constitution does not necessarily imply the absence of the rule of law or of the guarantee of human rights or even of control over government actions. Nor does it conclusively indicate the full implementation of constitutional principles and values in societies governed by a written constitution. Therefore, the concept of constitutional law and the associated principles extend beyond written documents. It is now recognized that the written constitution is not the sole authoritative source of constitutional norms. Yet going beyond legal formalism and embracing the institution of the unwritten constitution requires careful examination of its foundations and functions. Simply incorporating this concept without critical reflection on its origin and functions risks incomplete understanding. The contemporary conception of the constitution is imbued with its unwritten norms, so overlooking this aspect of any legal system results in a flawed understanding of the constitution. However, introducing ideas and concepts into the national legal system requires a thorough understanding of their origins and foundations, as well as the consideration of the feasibility of aligning domestic institutions with new concepts. Otherwise, newly introduced concepts may create a patchwork in political and legal structures, thus adversely affecting society and causing significant harm. To attain a precise understanding and prevent potential abuses, emerging concepts in public law, such as the unwritten constitution, must be rigorously analyzed and explored with an eye to their origin.
Upon closer analysis, it becomes clear that the concept of unwritten constitution is not boundless, but rather operates within a specific framework and scope. Failing to grasp the foundations of this concept and inadequately explaining it can lead to increased reliance on discretionary opinions, thus causing ambiguity over the nature of practices, procedures, and rules within the constitutional law system. Consequently, certain political practices or actions may erroneously be considered part of the constitution— albeit in an unwritten form—and subsequently legitimized by being foregrounded in the political arena. Concerning the unwritten constitution, there are some scholarly efforts to clarify and dispel ambiguity surrounding this concept, yet it remains relatively unexplored in the Iranian context. There is thus a need to examine the foundations of legitimacy of the unwritten constitution, and distinguish it from merely political and ephemeral principles, rules, and procedures. In this respect, the present study tried to gain a deeper understanding of the unwritten constitution as a legal institution, shedding light on its most significant foundations through description and analysis. It aimed to address the following research question: What is the origin and source of legitimacy of the principles, regulations, and norms that do not derive their authority from the text of the constitution but nonetheless underpin the rights and freedoms enshrined in the text?
Materials and Methods
As a descriptive–analytical inquiry, the present study used a library research method and note-taking to collect the data from different sources in order to examine the foundations of legitimacy of the unwritten constitution.
Results and Discussion
The research highlighted the necessity of a comprehensive understanding of the unwritten constitution, as a relatively nascent concept within Iran’s constitutional law system. Such an understanding would necessitate the examination of foundations of constitutional legitimacy and their analysis beyond the confines of the national constitutional framework. The approach or methodology employed in identifying the nature of the constitution plays a crucial role in narrowing down or broadening its scope and substance. For example, the formalist approach would focus on the structure and contents as delineated in the codified document, with the constitution being perceived as synonymous with its official, written provisions. The approach towards constitutional legitimacy can significantly influence both interpretation and implementation of the constitution. Therefore, adopting an extratextual approach and embracing the overarching concept of the constitution beyond its textual confines can open pathways to a broader scope of individual and public rights and freedoms.
Consider, for instance, the reason-based legitimacy approach, which rests upon the justice or efficacy of constitutional provisions. This approach bridges the divide between constitutional theory and practice, bolstering the legitimacy of unwritten principles and values. From this perspective, the constitution derives its validity and legitimacy not from its form nor the procedure of ratification, but rather from its substantive content and valuable objectives. Consequently, the legitimacy of the unwritten constitution rests upon the same fundamental principles and substance codified in the written constitution.
Across all legal systems, it is inevitable to acknowledge the presence of an additional layer of the unwritten law alongside the written one. Unwritten principles exert influence on the implementation of written regulations, thereby limiting or broadening their scope. In this context, it becomes crucial to delve into the foundational reasons underpinning the binding nature of the unwritten constitution. The binding nature is rooted in the substantive realization of the rule of law, reliance on the requirements of natural and human rights, as well as the roles of key judicial bodies and the public in acknowledging and endorsing true principles and values of the constitution. This can delineate the boundaries of the unwritten constitution.
Conclusion
It is thus necessary to take heed of the concept of the unwritten constitution and its status within any legal system. The failure to provide a proper explanation of this concept can lead to increased discretionary opinions and decisions, thus causing ambiguity over the nature of practices, procedures, and rules within the constitutional law system. There is a risk that certain practices or official statements, when foregrounded in the political arena, might erroneously be perceived as integral components of the unwritten constitution, thereby gaining undue prominence.
International Law
Hojatollah Mansouri; Soheyla Koosha; Mohammadreza Hatami; Hossein Alkajbaf
Abstract
IntroductionProtecting women’s rights has been a perennial concern of human rights advocates over the past two centuries. Their dedicated efforts have resulted in the recognition of gender equality in key human rights documents such as the Charter of the United Nations, the Universal Declaration ...
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IntroductionProtecting women’s rights has been a perennial concern of human rights advocates over the past two centuries. Their dedicated efforts have resulted in the recognition of gender equality in key human rights documents such as the Charter of the United Nations, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights. However, these documents alone have fallen short of achieving the anticipated goals in promoting gender equality. This gap prompted the drafting of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to address gender discrimination in the member states. However, reports from the Committee on the Elimination of Discrimination Against Women reveal that many member states have not fully complied with the provisions of CEDAW. This failure has raised doubts about the effectiveness of CEDAW in safeguarding women’s rights. On one hand, some states have entered reservations to specific provisions of the Convention; on the other hand, there appears to be a lack of binding mechanisms to hold them accountable for violating their obligations. It is thus crucial to re-evaluate the fundamental concepts of gender discrimination and the provisions of CEDAW in order to examine their feasibility in societies with different norms. CEDAW consists of 30 succinct articles aimed at eliminating all forms of discrimination against women in all societies, regardless of cultural, religious, or ethnic differences. However, it does not explicitly address specific religious or cultural norms, presenting only a universal solution that may not align with diverse contextual complexities. Consequently, several member states, including secular and Islamic ones (e.g., India, Pakistan, and Indonesia), encounter challenges in implementing the provisions. The challenges apparently stem from CEDAW’s emphasis on individualism, which overlooks communal concerns and requirements. Predictably, this approach, coupled with affirmative action favoring women, has sparked backlash against the status of women, even in the U.S. and Europe. In this respect, the present study tried to address the following research questions: What approach does CEDAW take towards the norms governing different societies? And what legal model does Islamic Sharia require to be applied in the domestic legal system, particularly within the framework of CEDAW? The research is based on the hypothesis that the effectiveness of CEDAW can be criticized in terms of normative frameworks and legal guarantees for enforcement. Materials and MethodsAs a qualitative inquiry, the present study used a descriptive–analytical method as well as library resources to examine the contemporary approaches of states toward gender equality. To achieve the objective, the study analyzed about 40 primary and secondary documents and sources, including books, journal articles, reports, etc. Results and DiscussionThe study focused on the needs and interests of involved entities, namely the member states, individual members of societies, and particularly women. The examination of the foundational concepts concerning gender equality and the provisions of CEDAW helped gain insight into the overall approach of the document towards cultural and religious norms governing different societies. CEDAW advocates for women’s rights by promoting equality between men and women in society, regardless of their distinctive roles and status within the family and broader community. Consequently, it does not explicitly address equality of rights in terms of equity or in a just or fair manner. Rather, its focus is on placing men and women in the same, equivalent positions. Furthermore, CEDAW does not explicitly refer to norms. Instead, it calls upon the member states to “modify the social and cultural patterns of conduct of men and women.” This approach can be characterized as somewhat abstract and vague, resembling radical individualism or even libertinism. However, many secular and Islamic states possess diverse social and cultural norms, customs, and taboos regarding the individual and social rights of women. Moreover, the teachings of religious leaders and traditional attitudes are heavily influenced by communitarianism. A notable example can be found in the teachings of Imam Ali, who approves or condemns personal behaviors based on their potential impact on society as a whole. Indeed, he strongly advocates for cultural reforms without any prejudice, recognizing the necessity for change when it serves the greater good.It is worth noting that some countries, such as the Islamic republic of Iran which is not even a member party of CEDAW, have reformed their national laws to eliminate discrimination against women, thus aligning more closely with CEDAW’s requirements. However, there are still concerns regarding the scope and the applicability of these social and legal reforms. Recent social backlash against affirmative action favoring women’s rights, freedom of homosexuality, and same-sex marriage in Western societies highlight the challenges in this regard. International legal documents should not underestimate the significance of social and cultural norms of societies, as radical individualism or libertinism can lead to serious issues such as civil disobedience and increased crime rates. There is thus a need for reforms in the provisions of CEDAW in order to meet the diverse needs and requirements of the global community. ConclusionHaving provided a brief overview of fundamental concepts related to gender equality, the present inquiry tested the hypothesis and examined the main shortcomings of CEDAW by delving into their nature and underlying causes. The analysis focused on the points of contention between the provisions of CEDAW and the positive laws in Iran, particularly in light of Islamic teachings. The analysis is crucial because the perspective of Shia leaders (esp. Imam Ali) on gender equality, which is significantly influenced by their communal concerns, has often been overlooked. Concerning the effectiveness of CEDAW, it is essential that interpreters or drafters of any alternative document consider different norms prevailing in the social context of member states, with particular attention to Sharia-based norms. Such an approach enhances the comprehensiveness of the document, enabling it to address different facets of gender discrimination in the member states
Mohammad Javad Javid; mostafa Shafizadeh Kholenjani
Abstract
Nowadays, it is very common to simply talk about the "relativity" of human rights. Perhaps this relativistic approach might be the unintended consequence of a situational looking at human rights. Since there is no common and correct boundary between the human rights and civil rights, it has inevitably ...
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Nowadays, it is very common to simply talk about the "relativity" of human rights. Perhaps this relativistic approach might be the unintended consequence of a situational looking at human rights. Since there is no common and correct boundary between the human rights and civil rights, it has inevitably fallen into the trap of relativism that had been opposed to its primary and universal objective. This boundary which paves the way for any relativistic interpretation of international instruments makes the assumption of the present article. Therefore, given the relativity of human rights, it may not be deemed universal. To this end, this paper goes on to establish a universal law based on the recognition of an anthropology of human rights in which in every age and every place, the essence of human nature is deemed.