Public Law Researsh

Abstract The constitution is one of the most complex concepts in the science of law. A vast literature has been formed about the history of this concept, its essence and philosophy, functions, content and design. One of the important topics in this regard is the types of constitution. One of the types of constitution is the authoritarian constitution. With the emergence of constitutionalism and the limitation of power, it was difficult to imagine that the constitution would work in the direction of consolidating the power of authoritarian rulers, but historical experience has shown that authoritarian systems also have a constitution and insist on having this document. This article has examined this type of constitution using a descriptive and analytical method and seeks to answer the question of what an authoritarian constitution is and what its functions are. In this article, in addition to defining the constitution, the most important functions of this type of constitution have been discussed by referring to the experience of constitutions in authoritarian countries

Abstract This article examines the influence of medieval political thought—particularly concerning legitimacy and authoritative normative system—on the formation of the modern idea of the state and secular law in the domain of public law. With the precision of a skilled archaeologist, Martin Loughlin traces how seemingly ideological disputes between the Papal Curia and the Holy Roman Empire on one side, and independent monarchical realms challenging papal authority on the other, gradually allowed theological and legal arguments to carve out a space for normative validity within the Permissible Zone of religious law. By adapting the Aristotelian concept of nature to reinterpret the Christian notion of divine grace, this process created the groundwork for a secular domain in jurisprudence.
Furthermore, a faction within the Church employed theological interpretations to legitimize papal succession, advocating a distinction between the office and the person of the ruler. This reasoning ultimately contributed to the differentiation between the legal and natural personhood of the sovereign in the modern conception of the state. Through a detailed analysis of these two developments, this article demonstrates how—contrary to the reductive assumptions prevalent in Iranian academic discourse—religious institutions and ideas played an instrumental role in shaping the foundations of modern public law.

Abstract Sheikh Hossein Yazdi, who was a student of Mirza Shirazi and a mujtahid of the Samarra and Najaf seminaries, realized the impact of the intervention of scholars in politics in the school of his teacher Mirza Shirazi following the tobacco ban and gradually joined the constitutionalist and law-loving movement of the Iranian nation, along with the constitutionalist modernists. Sheikh Hossein Yazdi's starting point in establishing and promoting Iranian constitutionalism, like many other constitutionalist jurists, was to preserve the essence of Islam and the essence of the Shiite state. However, his effective presence in the constitutionalist struggles and representation in the National Consultative Assembly in the early years of the Assembly revealed to him the importance of the rule of law and the legislative assembly, and he made effective theoretical and practical efforts in creating institutions and tools for the rule of law from the standpoint of Sharia and reason. ; In his view, the representatives of the parliament were the examples of the people's reliable intellectuals who received their decision-making will from the collective vote and will of the thirty million Iranian people and were committed to respecting the interests of the general public.

Abstract Introduction

The concept of constitutional unamendability holds paramount significance within a constitutional framework. A constitution sets out the fundamental rules of a society, and its amendment procedures specify how those rules may be modified. In this respect, provisions on unamendability can be understood as the principles that govern how fundamental rules may be changed. As such, they constitute one of the most crucial elements of any constitution. Unamendability has drawn growing global attention and is now recognized, in both codified and uncodified forms, by numerous constitutional systems.
It operates to restrain political actors and the public from engaging in revision efforts, effectively transforming attempts to alter fundamental constitutional principles into long-term prohibitions.
Republicanism in France and Italy, human dignity in Germany and Armenia, fundamental rights in Central Africa and Brazil, secularism in Azerbaijan and Turkey, and religion in Algeria and Iran are among the many examples of unamendable constitutional principles. Constitutional unamendability, as one of the most important elements of a constitution, has increasingly captured the attention of constitutional drafters in both constitutional and even non-constitutional systems. Any theory about constitutional unamendability must address two fundamental questions.
First, what is the legal logic underlying constitutional unamendability? Second, which parts of a constitution should be considered unamendable? The concepts of unamendability as a derived constituent power and of transnational unamendability, viewed through the lens of universal constitutionalism, offer persuasive answers to these questions. Yet the precise answer to each ultimately depends on resolving a prior question: What, exactly, is constitutional unamendability? In Iran, the theoretical refinement of constitutional unamendability is particularly significant and urgent, specifically due to the emergence of a certain consensus among political actors, as well as legal and non-legal doctrines, regarding the question of constitutional revision. The present study aimed to offer a unified and consistent theory of constitutional unamendability by examining the nature of constitutional unamendability, exploring its legal logic, and presenting a normative approach regarding the unamendable content of the constitution. The analysis focused on constitutional unamendability in Iran.

Literature Review

A review of the Persian-language research reveals that scholars of constitutional law in Iran have not devoted sustained, independent attention to the theory of constitutional unamendability. Secondary sources typically offer only limited discussions of its legitimacy or illegitimacy, without undertaking a comprehensive or in-depth analysis. These works often arrive at a broad and somewhat superficial conclusion: constitutional unamendability is incompatible with democratic principles and the right to self-determination, and is therefore unacceptable. Notable examples of scholarship in this area include “The Right to Self-Determination in International Human Rights Law and Ultra-Constitutional Principles” (Mohebbi & Najafabadi, 2020) and “Theoretical Foundations of the Basic Constitutional Review” (Ghamami & Hosseini, 2019).

Materials and Methods

The present study employed a library research method for data collection and a normative method for data analysis. It was structured into three interconnected sections, each contributing to the development of a coherent theory. The first section examined the nature of constitutional unamendability. The second explored the legal logic underlying constitutional unamendability. Finally, the third section presented a normative approach regarding the unamendable content of the constitution.

Results and Discussion

The theory of constitutional unamendability seeks to legitimize the scope and limits of explicit and implicit constraints on constitutional revision by drawing a terminological distinction between revision and amendment, defining revision as an exercise of derived constituent power, and adopting a universalist understanding of constitutionalism.
This theory is expressed through three principles: a restricted obligation of unamendability for core constitutional values, the permissibility of unamendability for intermediate values, and an absolute prohibition on unamendability for anti-constitutional values. An examination of Article 177 of the Constitution of the Islamic Republic of Iran showed that the Iranian legislator has effectively adopted a logic of unamendability that differs from the transnational understanding. Although the republican values enshrined in Article 177 can be interpreted—at a textual and superficial level—in a way that aligns with universal constitutionalism, the Islamic values it protects emphasize an originalist and holographic understanding of the legal and political order of the Islamic Republic, thereby reflecting an approach to unamendability that diverges from transnational unamendability.

Conclusion

The growing significance of constitutional unamendability has made it a complex and contentious mechanism for imposing constraints on constitutional revision. The theoretical and practical challenges arising at three levels—institutional design, judicial review, and political interaction—are closely tied to fundamental concepts and the emergence of new constitutional rights. As a result, it is now imperative to conceptualize constitutional unamendability in a manner that produces a theory capable of shaping constitutional thought.
A theory of constitutional unamendability must provide convincing answers to two central questions. First, it must explain the legal logic underlying constitutional unamendability. Second, it must identify which constitutional elements should be considered unamendable. Addressing these questions depends on a clear understanding of the concept of constitutional unamendability itself.
The present inquiry sought to advance the theoretical exploration of constitutional unamendability by offering integrated and coherent responses to these questions. It is feasible to establish a distinction between revision and amendment through lexical analysis and an examination of the nature, characteristics, content, and guarantees of constitutional unamendability. This can provide the conceptual foundation necessary for understanding and theorizing constitutional unamendability.
Understanding the legal logic underlying constitutional unamendability rests on recognizing constitutional amendment as a derived constituent power within the conventional theory of constitutional amendment. It further requires differentiating constituent power from constituted power and substantiating this distinction through an analysis of three major approaches: substantive, procedural, and delegated. The theory also engages with the notion of transnational unamendability, grounded in a universalist interpretation of constitutionalism, and provides justification for both explicit and implicit limits on amendment. The implications of transnational unamendability are reflected in a restricted obligation of unamendability for core constitutional values, the permissibility of unamendability for intermediate values, and an absolute prohibition on unamendability for anti-constitutional values.

Abstract Introduction

The history of modernity in Iran, regardless of its origins, begins with the Iranian constitutional movement—marking the moment when Iran inevitably entered the realm of European thought. This movement was supported by three influential groups: the clergy, intellectuals, and court elites, each with different views and motivations. On one hand, the movement could not transcend the traditional structures of Iranian society and therefore required the support of religious authorities to succeed. On the other hand, the religious thought of the time was not equipped to shoulder the weight of constitutionalism without undergoing reform. Consequently, the idea of religious reform became a central concern of the reformist movement from the outset, leading to the development of more complex theoretical reflections.
In this context, Javad Tabatabai, one of the most significant theorists of intellectual movements in Iran, held a distinct view compared to many of his contemporaries. He argued that religious reform within Sharia-based Islam was possible only within the realm of law—through the transformation of Sharia law into a modern, historically-informed legal system. According to him, this transformation provided the conditions for the reinterpretation of the Sharia-based legal text through the lens of modern legal theories originated from the philosophy of modern law. This process of (re)interpretation, in Tabatabai’s view, resulted in the new within the old while eliminating the old within the old, thereby paving the way for modernity in Iranian society. Tabatabai contended that the constitutional movement, whose legal dimension had overshadowed its political nature, exemplified this model of theory in practice by reshaping the logic of religious understanding and legitimizing the transformation of Sharia law into the modern legal system. The present study aimed to offer a critical reading of Tabatabai’s theory on the Iranian modernity and the relevance of legal debates therein.

Literature Review

The discussion on religious reform and its impact on modernity, beyond broad and often inconclusive and futile debates like secularization or laicization, presents a significant challenge—especially when attempting a scholarly analysis that ought to account for the diversity of religions and the singularity of human societies. As Marcel Gauchet (2006) has aptly explained, this complexity makes theorizing in this field particularly difficult. The spectrum of theorizations on religious reform in Iran ranges from relatively simple ideas, such as Akhundzadeh’s notion of Islamic Protestantism or Mirza Malkam Khan’s minimal interpretation of Islam (Tabatabai, 2013), to more intricate perspectives such as Shariati’s sociological analysis (Shariati, 1973), Soroush’s hermeneutic discussions (Soroush, 1991), and Hajjarian’s sociological explanations of the secularization of jurisprudence (fiqh) (Hajjarian, 2010). However, according to Tabatabai, these theories are not only insufficient but also fail to account for the Sharia-oriented nature of Islam and establish a point of relevance with history of Iranian thinking. As a result, they cannot fully explain the evolution of religious thought in contemporary Iran. As a theorist of the historical decline and the impossibility of thought in Iran, Tabatabai dedicated a significant portion of his later and more complex writings to addressing this issue. He raises a crucial question, if the term religious reform can be applied to Islam, what would be the indigenous theory of religious reform within the Sharia-based Islam? Tabatabai (2021) rightly considered this one of the knots and underexplored questions in the history of Iranian thought. For him, addressing the issue is key not only to understanding the history of thought in Iran but also to shedding light on the history of concepts in contemporary Iran. His general response to this question lies in the realm of law. Tabatabai contends that in Sharia-oriented Islam, religious reform is only possible through the transformation of Sharia law into a modern legal system. He argues that Iran’s constitutional movement exemplified this approach, as the constitutional movement introduced two groundbreaking perspectives within the Islamic world—particularly in Shia Islam: first, the permissibility of transforming


Sharia into a set of codified laws, and second, the possibility of interpreting these laws through the modern law. This created an unprecedented transformation in the understanding of Islam. The current research sought to provide a revised and coherent account of Tabatabai’s thought, focusing on two key areas: his theorization of religious reform and its application to the constitutional movement. However, rather than uncritically accepting his assumptions, unspoken premises, or reasoning, the analysis aimed to challenge his single-factor approach in explaining the evolution of religious knowledge and tradition over the past two centuries, calling for adjustments and a more nuanced perspective. Tabatabai’s legal-oriented interpretation of religious reform in Islam is unprecedented. Yet, despite its significance and its high explanatory power in understanding contemporary religious thought, his theory has received little critique or scholarly reassessment. The only existing work on the subject is Javad Miri’s short treatise in Persian: The General Theory of Religious Reform: Rereading Seyyed Javad Tabatabai’s Narrative of Constitutional Political Philosophy (2021). However, despite the title, Miri limited himself to a few general and somewhat hasty criticisms in the opening pages before shifting his focus to critiquing other aspects of Tabatabai’s work.

Materials and Methods

The present study relied on documentary research and content analysis to provide a coherent account of Tabatabai’s complex theory of religious reform.
4. Results and Discussion
Tabatabai argued that modern legal knowledge could play a significant role in reforming Sharia-based Islamic thought. In his view, transforming jurisprudence (fiqh) into legal codes creates a lasting separation between these laws and Islamic jurists (faqihs). This detachment of legal texts from the guardians of the traditional view of Sharia paves the way for legal scholars to take on the role of interpreting and understanding these legal codes. Free from the discursive constraints of the Islamic jurist (faqih) and unbound by ideological influences, modern legal scholars can apply modern legal theories and philosophies to reinterpret fiqh-based legal codes. Tabatabai sees this as the only viable path to religious reform within the Sharia-based Islam. While the idea that pragmatic jurisprudence (fiqh) can facilitate religious reform at the intersection of fiqh and law is significant and valuable, it can be questioned from various perspectives. Perhaps the most fundamental criticism lies in its core assumption: the separation of Islamic jurists (faqihs) from fiqh-based legal codes. At least within the Iranian legal system, such a separation has not yet materialized.

Conclusion

According to the findings, while Tabatabai’s theory of religious reform demonstrates a stronger capacity for indigenous understanding and a more coherent interpretation of this complex issue compared to competing perspectives, it cannot be considered a definitive or comprehensive explanation of the evolution of Shia religious thought in the modern era. The primary criticisms of his theory include its reliance on a linear evolutionary conception of history, its comparison of fundamentally incommensurable categories, its one-dimensional interpretation of the constitution as merely a legal matter, and its misreading of key religious texts.

Abstract Public policy-making is considered as the most important manifestation of government’s ruling, exertion of authority and arrangement of public
affairs based on the “rule of law”. Public policy-making cycle, from think tank and policy-making to assessment and supervision is formed in relation to basic/fundamental rights and therefore, under the influence of the legal and political system, its position and function would be different. In the Iranian legal system, the concept of “general policies of the system” has legal and political affinity/relationship with public policy-making. However, as the result of the existing legal vacuum, its position and function is questionable and accordingly strategies and solutions implied in the process of public policy-making cannot be utilized in assessment and supervision of general policies of the system. Hence, in order to utilize the capacity and capability of “public policy-making” within “general policies” concept in the structure of basic/fundamental rights system in Iran, this legal establishment shall be placed in the procedure of Constitutionalisation in two different but coordinated courses by separating minor and major departments. Therefore in the process of localization, this concept is redefined based on Iranian legal system.

Abstract Public law as a discipline of legal science which considers public matters –in confront with private matter, is established in ancient Rome and influenced deeply the European history. In the first step, its basic concepts, such as Imperium and Jurisdictio, and its outlook toward the relation of power and law, gave way to the concept of sovereignty as a monopoly of approving, changing and abolishing of statutes. It leads to the establishment of authoritative governments. In the second step, it provides the proponents of absolutism with legal arguments against their traditional and new rivals. At the end, it were the constitutionalists who promote Roman law with some principle of roman private and corporate law and reinterpretation of old concepts in shadow of new needs of era to apply them against their oponents. Finally, these disputes resulted in our understanding of modern state and representation and Roman law, despite to its flexibility, leaved its lasting impression, i. e. formulation of political conflicts in the legal language.

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 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