Public Law
Mohammad Mohseni Rad; Ali Akbar Gorji Azandariani
Abstract
IntroductionLegal system is a legal concept that has been addressed less directly, except in a few cases. Legal order and later on legal system were initially introduced into legal literature by German jurists. In the first half of the 19th century, scholars of public law in Germany pioneered the discussion ...
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IntroductionLegal system is a legal concept that has been addressed less directly, except in a few cases. Legal order and later on legal system were initially introduced into legal literature by German jurists. In the first half of the 19th century, scholars of public law in Germany pioneered the discussion on the concept of legal order, influenced by the philosophies of their predecessors, namely Kant and Hegel. Similarly, the concept of a legal system, denoting an organic and systematic set of rules, emerged concurrently with the concept of the rule of law in the scholarship on law. The concurrent emergence suggests that the prerequisite for the existence of a legal system is the prior establishment of the rule of law. In all likelihood, the concept of a legal system had held more significance for scholars in private international law, whose aim was to elucidate how the rules of one system could be applied in another. Therefore, recognizing the concept of a legal system seemed to be a precursor to delving into the core discussion of international law. Later on, the concept of a legal system fell into neglect and received scant attention until it regained its importance during the 20th century. However, the revival did not stem from the inherent significance of the legal system itself, but rather from a debate between positivists and anti-positivists regarding the concept of law. Neither Hart nor Fuller—as the great figures of positivism and anti-positivism, respectively—explicitly referred to something as of legal system; however, their formulation and theorization would inevitably end up in the concept of a legal system. In any case, legal system can be viewed as a cohesive set of all elements that significantly contribute to establishing the rights governing the life and functioning of any human society.In this respect, the present study aimed to investigate the nature of the concept of a legal system by addressing the following questions: Why is the concept of a legal system important to us? What is a legal system? What are its defining characteristics and constitutive components? How are the components intertwined? and What kind of relationship does the legal system impose on its internal environment? It is presupposed that a precise conceptual definition of legal system is essential to understand the relevance between ethics and the legal system. Accurate identification of constituent elements of the legal system, as well as a careful examination of the criteria for the system’s validity, are crucial steps to gain insight into the relationship between ethics and the legal system. Literature ReviewAs the legal system consists of a set of laws, understanding the legal system requires a detailed analysis of the nature of law. It is thus crucial to note that any conceptualization of law significantly influences the understanding of the legal system. In the literature on legal studies in Iran, it seems that that there is a dearth of research concerning the conceptual and philosophical definition of legal system. The concept of a legal system and its related notions have not been a focal point for Iranian jurists. Although a few significant translated works deal with the concept of law, there is no independent research specifically dedicated to the concept of a legal system. In the non-Iranian context, the English-language literature includes notable works published in the early 70s, such as The Concept of a Legal System by Raz (1970) and Normative Systems by Alchourron and Bulygin (1971).The concept of law, as a normative-cum-institutional system, has become a battleground for positivist and non-positivist doctrines. The discussions on the existence, elements, and purpose of the law form an integral part of the analysis of the concept of a legal system, with each jurist and scholar interpreting it based on their theoretical perspective. In general, a legal system is deemed to exist when its laws do exit. Therefore, to understand the legal system requires a keen understanding of the conditions under which the law exists. Materials and MethodsThe present research employed a descriptive, analytical, and conceptual methodology, relying on library research and internet resources to collect the data. ConclusionIn light of the research findings, it seems that the study of the theory of a legal system is still in its early stages, for neither the nature of associated issues nor its significance has been recognized and understood. The research highlighted that understanding the nature of law requires an understanding of the internal relationships among laws, emphasizing that every law is necessarily linked to a legal system. In summary, it appears that the analytical theory of a legal system suffers from two shortcomings. First, it neglects the problematic issue of content, thus offering an inadequate explanation of the legal system’s dynamics. Therefore, such a theory needs to be complemented by ethical considerations. Second, this doctrine falls short in giving adequate attention to all constituent elements of the legal system.
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.
