Public Law Researsh

Abstract Introduction

The emergence and expansion of the concept of the public sphere since the Enlightenment has played a pivotal role in the formation of modern societies. Conceived as a space for rational dialogue and the formation of public opinion, the public sphere has been examined through various theories, such as the theory of neutrality. The theory of neutrality, which emphasizes the state’s non-interference in matters of belief and values, provides a foundation for the flourishing of the public sphere. The present study aimed to examine the feasibility of realizing the public sphere in light of the theory of neutrality, addressing both the challenges and opportunities it presents. The research question is as follows: Is the realization of the public sphere feasible within the framework of the theory of neutrality? By elucidating the theoretical foundations of each concept and exploring their intersection, the study sought to provide a comprehensive account of how the public sphere and neutrality can coexist and reinforce each other. Finally, the analysis of  concrete and practical examples helped propose solutions to strengthen this connection and enhance civic participation in contemporary societies.

Literature Review

The article “The Relationship Between Government and the Desired Life: An Assessment of Neutral and Perfectionist Approaches” (Rasekh & Rafiei, 2013) examined the foundations of neutrality and perfectionism, as well as their respective relationships with government and its connection to the people. In the Persian-language book titled Perfectionism and Neutrality and Their Effects on Power Structure and Public Law, Shirzad and Rahmatollahi (2019) discussed the general concepts of perfectionism and neutrality. In addition, in the article “A Reflection on the Concept and Foundations of a Perfectionist State,” Shirzad (2020) analyzed the foundations of perfectionism. However, no specific research has been identified that addresses the subject of the present research—namely, the feasibility of realizing the public sphere within the theory of neutrality.

Materials and Methods

The current study used analytical–descriptive and library research methods to examine and explain the feasibility of realizing the public sphere within the theory of neutrality.

Results and Discussion

The theoretical and analytical review of the present article led to the following key findings regarding the feasibility of realizing the public sphere within the framework of the theory of neutrality. The theoretical and analytical review conducted in this article yielded several key findings regarding the feasibility of realizing the public sphere within the theory of neutrality. A substantive link was identified between the concept of the public sphere, understood as a free space for rational discourse, and the theory of neutrality, which emphasizes the state’s non-interference in ideological and value-related matters. By guaranteeing fundamental freedoms, neutrality provides the necessary foundation for the independent functioning of the public sphere. The study also found that mere and passive state neutrality, while guaranteeing freedom of expression, can in practice overlook structural inequalities and unequal access for marginalized groups to the public discourse. This limitation hinders the realization of an inclusive and just public sphere. For this reason, the analysis highlighted the necessity of active neutrality. Effective realization of the public sphere requires more than simple non-interference; it calls for policies aimed at removing barriers to participation, ensuring equal access to information, and supporting independent civil institutions. Moreover, neutrality, by supporting pluralism and respecting diverse beliefs, provides a unique opportunity for enriching public discourse. Pluralism prevents the monopolization of discourse by a specific group or ideology and ensures the dynamism of the public sphere.
Based on the above findings, it can be argued that the realization of the public sphere within the theory of neutrality is not only an ideal but also a necessity for democratic societies. However, its realization requires a precise and subtle understanding of the concept of neutrality. It should not be interpreted as the state’s indifference to the fate of public discourse or its lack of responsibility for the fair participation of citizens. Instead, active neutrality tends to create and maintain the necessary infrastructure for free and equal discourse, thereby playing a central role in enhancing the public sphere. The main challenge lies in defining and implementing neutrality in a way that both guarantees individual and group freedoms and addresses existing inequalities in access to public discourse. This requires the state, while maintaining its neutrality regarding the content of beliefs, to take active steps toward removing structural barriers that hinder the participation of certain groups. Supporting media literacy education, encouraging independent and diverse media, and creating fair digital platforms for dialogue are examples of active neutral measures that can reinforce and expand the public sphere. It should also be emphasized that the dynamism of the public sphere is not determined solely by state actions. The role of civil society, scholars, and citizens in creating free spaces for dialogue and safeguarding the independence of the public sphere from political and economic pressures is equally crucial. Within a society grounded in the theory of neutrality, independent institutions can contribute to shaping public opinion without fear of state interference. Finally, the public sphere and the theory of neutrality can complement one another and together strengthen democracy. The realization of this coexistence depends on a proper understanding and thoughtful application of neutrality, one that ensures both freedom and justice in access to the public sphere.

Conclusion

The current study examined the feasibility of realizing the public sphere within the theory of neutrality. The research findings revealed a strong connection between these two concepts, as state neutrality in matters of belief and values provides a secure and open space for citizen dialogue and the exchange of ideas—conditions essential for the formation of a dynamic public sphere. However, an exclusive focus on passive neutrality can pose challenges, particularly by overlooking structural inequalities that may hinder the equal participation of all groups in public discourse. Therefore, it is concluded that the realization of an effective and inclusive public sphere requires a kind of active neutrality. This approach, which goes beyond mere non-interference, involves actions by the state and civil institutions to remove barriers to participation, ensure equitable access to information, and support independent media and organizations. The pluralism fostered by neutrality enriches public discourse and prevents the homogenization of ideas. Ultimately, the successful coexistence of the public sphere and the theory of neutrality can strengthen democracy and promote civic participation, provided that neutrality is accurately understood and actively applied to guarantee both justice and freedom in the public sphere.

Abstract Introduction

It has always been a challenge to determine the institution or authority responsible for safeguarding the highest legal and political expression of a society, namely its constitution. The significance of this issue lies in the critical role of protecting the foundation of society. The constitution, as the embodiment of a society’s political and social unity, preserves its identity and cohesion. Accordingly, every political community and legal system, shaped by its worldview and prevailing ideology, has devised a method to protect its constitution. After gaining independence, Americans entrusted the judiciary with the protection of the constitution, establishing it as the guardian institution. This model became a template for other socio-legal systems. Alongside the American or Anglo-Saxon approach, a new model emerged based on the ideas of Hans Kelsen, an Austrian jurist. Kelsen’s model advocates assigning constitutional protection to an institution independent of political authorities, yet operating with a judicial approach. The Constitutional Court, first established in Austria, would serve as the guardian of the constitution, functioning like a judicial court by adjudicating constitutional disputes and issuing judgments. In contrast, Carl Schmitt, with his keen perception of political realities and his observations of the crises of the Weimar Republic in Germany, proposed a different path. Schmitt’s ideas, shaped by his critique of liberalism in law and politics, have often been described as undemocratic, authoritarian, or power-oriented. His explicit opposition to parliamentarism linked him to fascism and the Nazi Party. Skeptical of liberal ideals rooted in parliamentarism, Schmitt argued that the parliament and its fragile foundations had lost their effectiveness and could no longer be relied upon. For Schmitt, safeguarding the foundation—the cohesive political and social unity of society—is primarily a political task. Liberalism, by reducing politics to debate and discussion on one hand and transforming it into economic competition on the other, was no longer capable of fulfilling this role. Liberal principles, including parliamentary regime, pluralism, and party systems, had lost their effectiveness in protecting the foundation and had instead become major dilemmas in the polity. In response, Schmitt advocated entrusting the guardianship of the foundation to the president, a political figure who could remain above the self-serving conflicts of parliament and parties, and exercise decisive authority when necessary to prevent the destruction of the foundation. The present study aimed to examine Schmitt’s main criticisms of the parliamentary system of his era—rooted in liberalism, democracy, and party politics—and his reasons for rejecting judicial or Constitutional Court oversight as a means of safeguarding the foundation. An attempt was made to understand his concept of the guardian of the foundation (or the guardian of the constitution) more directly and precisely, without the distortions of historical accusations. The analysis focused the critiques of Carl Schmitt, the prominent German political theorist, regarding liberalism, democracy, and parliamentarism, exploring their implications for the protection of the constitution.

Literature Review

There have been a few Persian-language studies discussing Schmitt’s views, primarily focusing on his theory of the concept of the political. However, with regard to Schmitt’s concept of the guardian of the constitution, there is only one research titled “The Guardian of the Constitution in Carl Schmitt’s Thought” (Moradkhani, 2021), which mainly provides an exposition and descriptive account of Schmitt’s theory. In contrast, the present article aimed to critically examine Schmitt’s theoretical and fundamental critiques of liberalism, explore their implications, and present Schmitt’s alternative paradigm for safeguarding the constitution.

Materials and Methods

As a descriptive–analytical inquiry, this study used a library research method to offer a critical analysis of Schmitt’s constitutional theory, in particular his concept of the guardian of the constitution.
 Results and Discussion
According to Schmitt, the foundation (or the constitution) is the manifestation of a nation with a distinct identity and of a comprehensive, all-encompassing statehood. This foundation arises from pure political processes and through political decisions, and its protection depends on specific conditions. Thus, the foundation is the very substance of the constitution, rather than the constitution itself, and cannot be safeguarded through purely legal measures. Given its inherently political nature, only an institution capable of political decision-making—and one removed from the partisan and economic conflicts of parliament and political parties—can serve as its guardian. From this perspective, Schmitt viewed the president of the Weimar Republic as a political figure who, despite being impartial in partisan and parliamentary disputes, was entrusted with safeguarding the most fundamental basis of German society and the unique identity of the German nation. Directly elected by the people, the president possessed the authority to make controversial political decisions—powers that parliament did not hold. Moreover, the protection of this foundation was so crucial that the president was expected to be willing to sacrifice everything for its continuity, including fundamental individual rights and constitutional principles of sovereignty. In his role as the guardian of the constitution, the president is therefore positioned above the constitution, exercising authority over it to protect the political existence of the nation. In Iran’s Constitution, particularly within the text of the constitution, there is an explicit reference to the protection of the constitution. One constitutional article assigns this role to the president, while another designates the Guardian Council as responsible. However, a careful examination of Schmitt’s concepts of the constitution and the guardian of the constitution reveals a significant distinction. In the Iranian constitutional system, the Guardian Council primarily serves as the guardian of the constitution. Its decades-long practice confirms that it has consistently pursued this role. In other words, the Iranian system conflates the foundation with the constitution itself, focusing on protecting the explicit, codified text from violations by other rules. While the Guardian Council was established to fulfill this function, its role is fundamentally different from Schmitt’s concept of the guardian of the constitution.

Conclusion

Schmitt was a staunch critic of the liberal approach to safeguarding the constitution, which he saw as lacking substantive political content and overly dependent on abstract legal principles. Instead, he advocated for a more decisive and politically charged role for the head of state, arguing that only such a figure could effectively defend the constitution during times of crisis. Schmitt’s critique was rooted in his fundamental opposition to liberal principles. He challenged the liberal notion of a neutral and objective state, contending that such a state is incapable of making the decisive political judgments necessary to protect the constitution. He also criticized liberal democracy, arguing that it produces a fragmented and indecisive political sphere, incapable of maintaining the unity and coherence of the state. Central to Schmitt’s analysis is his concept of the political, which he distinguishes from the realms of law and economics. According to Schmitt, the political is characterized by the fundamental distinction between friend and enemy—a distinction that becomes blurred and ultimately meaningless under the liberal framework. He maintained that the constitution, as the embodiment of the state’s identity, cannot be protected solely through legal mechanisms; it requires a strong and decisive political will capable of acting decisively in the face of uncertainty and conflict. Although highly controversial and widely debated, Schmitt’s ideas raise important questions about the nature of political power, the role of the state, and the mechanisms necessary for protecting the constitution in modern democratic societies.

Abstract Constitutional law is one of the most important fields of legal knowledge and its close connection with political science has led thinkers in the other fields of humanities to discuss the concepts and principles of this knowledge. Max Weber, one of the most important thinkers of recent centuries, has carefully reflected upon the knowledge of law, especially Constitutional law. He lived in a turbulent time and witnessed the rise of Germany as well as its decline. In the midst of World War I, Weber addressed Constitutional law issues and provided analyses in this regard and later played a vital role in drafting the Weimar Constitution. He was a supporter of the presidentialism and the extraordinary powers of the president, which were enshrined in the Weimar Constitution and later created many problems. This article aims to examine Weber's theory of Constitutional law and to explain his outlook and interpretation towards issues such as the president, parliament, and democracy

Abstract Constitutional review is one of the important concepts of constitutional law that, although begun in the nineteenth century and in the United States, grew worldwide in the twentieth century. Initially European countries and gradually other countries around the world also adopted this system.but According to their political system and history; countries have provided many models for it. This theory was founded in the twentieth century by Hans Kelsen in Austria and Germany, and the European tradition first stood against it. The most important criticism of Kelsen was provided by the great German lawyer Carl Schmitt. He believed that this system was contrary to the principle of democracy and did not correspond to the space and history of European countries. If the constitution is to be guarded, the president himself will suffice as a symbol of all people. This article attempts to examine Schmitt's most important critics to constitutional review and his foundations and solutions by looking at Germany at that time. Schmidt's critiques to date have been one of the most important critiques of constitutional review and have been revisited in many ways in many countries.

Abstract In every society, power is deemed as an essential element for securing and
maintaining sovereign governments worldwide; however, human history shows
where it is not laid under control and supervision, in the absence of unaccountability
to members of society, there is a likelihood of its inclination towards abuse of power
and corruption. Meanwhile, even so the government structure may well be assumed
as democratic, maintaining constant supervision over its various constituent
elements and divisions is a prime objective destined, within a legal framework, to be
achieved and that it requires efficient supervisory vehicles in place as to carry out
duties of such grave importance. Notwithstanding that, it is a duty assumed
primarily on judicial bodies to fulfill, prevalent complexity and bureaucracy in mazy
aisles of courts coupled with lengthy proceedings therein, compelled some states
establish organizations delegated to deal with complaints brought by people through
non-judicial fast and brief process. These organizations were termed “Ombudsman”
or non-judicial supervisory institutions.
Nowadays, Ombudsman-providing the public with convenient non-judicial
mechanism, through which their complaints against government are heard - is
considered as an indication of political development and an inalienable part of
effectively protecting basic rights of citizens living in democratic societies, to such
extend that one may argue that the notion of a democratic and developed nation may
not realize without independent and efficient Ombudsman in place. Indeed, by
striking a balance between the interests of the people and the government to which
they are nationals, Ombudsman function as powerful mean laying down the
necessary foundation for realization of a favorable democracy. Accordingly, given
their superb functionality and potentials, Ombudsmen may well serve the vital
purpose of developing and institutionalizing a democracy by reinforcing its
fundamental principles and satisfactory addressing of citizens grievances or petitions
which may arise as a result of government wrongdoing.
Adopting a question-oriented approach and through a descriptive-analytic method, this
paper attempts to examine the relationship between democracy and Ombudsman as a
non-judicial supervisory establishment; and respond to the questions of how and by
what means may it globally contribute to development of democracy.