Public Law
Soroush Alizade; Ayat Mulaee
Abstract
The following article takes a step on the path by choosing new technologies and multi-faceted philosophical reflection on its concept as a starting point in the problem.Then, he talks about the impact of technology on human life and develops the issue of Mandi Ben Mayei from the heart of it.As this issue ...
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The following article takes a step on the path by choosing new technologies and multi-faceted philosophical reflection on its concept as a starting point in the problem.Then, he talks about the impact of technology on human life and develops the issue of Mandi Ben Mayei from the heart of it.As this issue is linked to one of the fundamentals of thought in the field of left and right economic legal schools.Therefore, the effort is based on rereading the concept of work and the working class and revealing the impact of new technologies on the fundamental and underlying conceptual and philosophical layers.Then the impact of these concepts on legal knowledge is looked at, and a light is shed on the conceptual conflict of the problem and the question is answered,what effect do new technologies have on the concept of the working class?This requires defining the concept of work from the philosophical thoughts of great thinkers and thinkers in this field.Among the important results of the research,we can point to a new reading of the concept of worker and work and that the impact of new technologies will not cause the exploitation of workers.
Public Law
Zohreh Naeimifard; MAHDI HADAVAND
Abstract
In administrative law, the "rule against bias" is one of the branches of the principle of "procedural fairness". One of the situations that may lead to a violation of the mentioned rule is "conflict of interest". Despite the importance of discussing the conflict of interest ...
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In administrative law, the "rule against bias" is one of the branches of the principle of "procedural fairness". One of the situations that may lead to a violation of the mentioned rule is "conflict of interest". Despite the importance of discussing the conflict of interest in the public sector, taking into account its relationship with the rule against bias in administrative law, this issue has been addressed less, and the main topics discussed are related to the relationship between corruption and conflict of interest. Considering the relationship between this concept and the rule against bias, this article, using an analytical-descriptive method, seeks to examine the nature, elements, application, criticisms, and challenges of conflict of interest management to increase transparency and public trust in the government. It seems that bias and conflict of interest are related in the potential of influencing decision-making, jeopardizing impartiality and fairness, and affecting the validity of administrative decisions and actions. The most important requirements of prohibiting bias in conflict of interest are refusal and disqualification. In the face of the challenges in managing conflict of interest situations, continuous improvement, modification, and updating of conflict of interest regulations are necessary to ensure avoid any appearance of bias.
Public Law
Mohammadjavad Mohammadipour; Ali Mashhadi
Abstract
Article 50 of the Constitution of the Islamic Republic of Iran is known as the basis of the issue of environmental protection in Iran's legal system, which according to many thinkers in the field of law and environment is one of the neglected Articles of the Constitution. This research intends to ...
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Article 50 of the Constitution of the Islamic Republic of Iran is known as the basis of the issue of environmental protection in Iran's legal system, which according to many thinkers in the field of law and environment is one of the neglected Articles of the Constitution. This research intends to obtain the procedure of the Guardian Council in applying this Article and to measure the extent to which this capacity is used in order to protect the environment. The findings show that the Guardian Council cited Article 50 of the Constitution in only two cases, and there are also cases that are contrary to this Article from a strict point of view, but the Guardian Council did not find fault with them. In general, it seems that considering the developing conditions of the country and the priority of economic issues, the Guardian Council has a balanced view on Article 50 and the issue of environmental protection, which may be better to pay more special attention to this Article because of the importance of the environment in Sustainable Development and activates its capacity to the maximum.
Public Law
Samaneh Rahmatifar
Abstract
The objective is to offer legal solutions that humanizes administration by enhancing pleasure and minimizing pain. The research employs a descriptive-analytical approach.Bentham's pleasure theory will serve as the theoretical framework, involving an exploration of various pleasure types. Subsequently, ...
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The objective is to offer legal solutions that humanizes administration by enhancing pleasure and minimizing pain. The research employs a descriptive-analytical approach.Bentham's pleasure theory will serve as the theoretical framework, involving an exploration of various pleasure types. Subsequently, legal components will be delineated to facilitate the application of each pleasure type within administrative processes. Bentham's philosophy underscores the principle of pleasure as a foundation for determining public interest and legislating accordingly. Bentham identifies fourteen pleasure examples,. Additionally, he enumerates twelve instances of pain Fostering pleasure among both staff and citizens aligns with the public interest. Its elements encompass asking for minimum documents, the admissibility of any request, prohibition of caution within the framework of the law, prohibition of narrow interpretation of legal competence, transparency of administrative law enactments, exercising discretions according to the will of the customers, granting job-related privileges to staff, meritocracy, professionalism, equality for solidarity, good-faith, adaptation of the citizen's private interest and public interest, absolute prohibition of disclosure of citizens' information, combatting corruption, consequentialism. The elements form a body of humanization within administration by legalizing of pleasure, becoming the content of the code of ethics, implementing through related general principles, promoting through education, and guaranteeing through self-control.
Public Law
Ayat Mulaee; Seyed Hossein Malakooti Hashjin; Mohammad Mazhari; Nusratullah Nabeel Rahimi
Abstract
Dr. Musa Javan was one of the important legal theorists in the history of Iran, who made significant contributions to Iranian legal theories. In his book Foundations of Law, he introduced Western legal theories to Iranian society and tried to theorize an Iranian modern legal theory. Considering such ...
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Dr. Musa Javan was one of the important legal theorists in the history of Iran, who made significant contributions to Iranian legal theories. In his book Foundations of Law, he introduced Western legal theories to Iranian society and tried to theorize an Iranian modern legal theory. Considering such importance, this article examined the significance of Javan’s legal theories and highlighted the necessity of Reviving his legal theoretical legacy. The primary question of this study is: What is the importance of Javan’s legal theories and why should be revived? According to this article, due to the ongoing theoretical crisis in Iranian public law, it is essential to analyze and review the academic views of legal theorists like Javan. Among Iranian theorists, Javan’s legal theoretical legacy holds particular methodological and academic significance. Regardless of its importance, the legal-theoretical contributions of this Iranian thinker have been forgotten, and no one has explored them. This article is theoretical research and has been written using the “Legal Doctrinal Research Method”.
Public Law
Shaghayegh Jahanbin Hafshejani; Alireza Dabirnia
Abstract
In order to consolidate their right to sovereignty, regulate political power and prevent government structures from interfering in other areas of their lives, people use public rights as a fundamental mechanism to limit political power in addition to guaranteeing their basic rights and freedoms. In a ...
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In order to consolidate their right to sovereignty, regulate political power and prevent government structures from interfering in other areas of their lives, people use public rights as a fundamental mechanism to limit political power in addition to guaranteeing their basic rights and freedoms. In a modern approach, public law plays the role of a double-edged sword in society. In this case, if the rules governing public rights take a path other than maintaining balance and balancing and are attracted to the power and wealth of the government, then that is the time when the scale of the government's power will be fattened by the inherent power of the people, and public rights and its arms will only serve as a tool for consolidation. The political power of the government is used.The author, in this research, which was collected by descriptive analytical method through library studies, aims to introduce public law as an institutional mechanism in guaranteeing basic rights and freedoms, and to answer the question whether the possibility of changing the direction of public law and opposition Does it exist with basic rights and freedoms or not?
Public Law
hasan mohammadi
Abstract
With the emergence of diverse perspectives on the state, various roles have been defined for it. The perfectionist approach considers the state as the primary guide of society, which, by discerning the best interests of individuals, directs society towards felicity. In contrast, the neutrality approach ...
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With the emergence of diverse perspectives on the state, various roles have been defined for it. The perfectionist approach considers the state as the primary guide of society, which, by discerning the best interests of individuals, directs society towards felicity. In contrast, the neutrality approach to the state, by distinguishing between the good and the right, and the private and the public, deems the state responsible for creating a framework within which citizens pursue their own conceptions of the good. Neutrality represents a novel approach to rethinking the competence of states. The Constitution of the Islamic Republic of Iran, despite possessing strong perfectionist concepts, is not devoid of neutral notions. This paper addresses the question of whether a neutral reading of the Constitution can be presented and what its foundations are. It seems that principles such as constituent power, autonomy, freedom, equality, and popular sovereignty in the Constitution form the basis of a neutral approach and can serve as rivals to perfectionist principles. Employing a descriptive-analytical method, this article examines neutrality, its foundations, and its indicators within the Constitution of the Islamic Republic of Iran.
Public Law
Hormoz Yazdani Zunuz; Alireza Dabirnia
Abstract
Foucault's view on power, state, sovereignty, and subject differs from Marxist and liberal views. Foucault is opposed to the Cartesian autonomous subject. The subject constitutes itself within a network of power along with resistance. The State is a continuous process embedded in extensive networks ...
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Foucault's view on power, state, sovereignty, and subject differs from Marxist and liberal views. Foucault is opposed to the Cartesian autonomous subject. The subject constitutes itself within a network of power along with resistance. The State is a continuous process embedded in extensive networks of power that respond to specific cases through governmentality. Given the differences mentioned, the social contract, sovereignty, and legitimacy have no place in Foucault's thought. This research seeks to answer the following questions: In Foucault's political thought, what role does the state have in modern society, and how does it fulfill it? How and on what basis does resistance to power take place? What contribution does Foucault's thought make to securing individual rights and freedoms? The results show that, according to Foucault, The state intervenes in subjectivization and forming the obedient subject through "the conduct of conduct" and shapes the field of possible action for subjects. Resistance is the twin of power and drives its criterion from cultural practices. Foucault's view reveals the hidden angles of power and state operations and helps citizens monitor the state effectively.
Public Law
seyed mojtaba hosseini almousavi
Abstract
Developing the urbanization in Iran, particularly after the Islamic Revolution, has brought urban issues such as informal settlements, traffic congestion, and agricultural land-use changes to the forefront. One of the most significant challenges in this context is the multiplicity of decision-making ...
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Developing the urbanization in Iran, particularly after the Islamic Revolution, has brought urban issues such as informal settlements, traffic congestion, and agricultural land-use changes to the forefront. One of the most significant challenges in this context is the multiplicity of decision-making bodies in urban affairs, particularly the separation of policymaking entities from implementing authorities. The lack of adequate enforcement for the decisions of policymaking entities, such as the Supreme Council for Urban Planning and Architecture, along with financial constraints in urban management, raises concerns that urban planning principles may be overlooked. The foundation of the urban legal system in Iran primarily traces back to pre-revolution laws. This study, employing a descriptive-analytical method, seeks to answer whether administrative adjudication has succeeded in addressing the deficiencies of the legal system by establishing dynamic and developmental practices. In other words, can administrative adjudication assist decision-making bodies in resolving urban challenges through forward-thinking interpretations and practical applications of legal texts in alignment with contemporary needs? An examination of the performance of the General Board of the Administrative Justice Court reveals that judicial oversight follows the concept of a "red light" approach. Literal interpretations of legal texts, disregarding the intent of the legislature.
Public Law
hasan mohammadi
Abstract
The neutrality approach, relying on secularism and separating the public from the private and the right from the virtue, compared to the perfectionist approach to the government, has provided a suitable platform for the emergence and growth of the public sphere. The existence of principled harmony (freedom, ...
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The neutrality approach, relying on secularism and separating the public from the private and the right from the virtue, compared to the perfectionist approach to the government, has provided a suitable platform for the emergence and growth of the public sphere. The existence of principled harmony (freedom, equality, prohibition of exclusion) as well as the harmony of effects (pluralism, tolerance, segregation, recognition of right to wrong, private and public autonomy) in the idea of neutrality and the public sphere, causes more solidarity between these two ideas. However, while paying attention to this harmony, the fundamental conflicts between these two theories have been noticed by scholars. Therefore, in this article, we address the question of which inconsistencies between the theory of neutrality and the idea of the public sphere have threatened the realization of public discourse in a democratic context? Jürgen Habermas has identified the conflict of solidarity with individualism and the conflict in the concept of autonomy as the most important challenges of the public sphere in the context of the theory of neutrality.
Public Law
Fardin Moradkhani
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 ...
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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
Public Law
JAWAD REZAEI; Mahmood Bagheri
Abstract
Capital gains tax is one of the major tax bases that governments, by invoking tax justice, increasing tax revenues, redirecting capital from non-productive assets such as real estate to productive assets such as shares in manufacturing companies, and combating speculation, explicitly provide for in their ...
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Capital gains tax is one of the major tax bases that governments, by invoking tax justice, increasing tax revenues, redirecting capital from non-productive assets such as real estate to productive assets such as shares in manufacturing companies, and combating speculation, explicitly provide for in their tax laws and levy on the profits arising from the sale of capital assets, calculated relative to their acquisition time.It is of paramount importance that the relevant legislation take into account the economic considerations associated with this subject. One of the most critical considerations is inflation, which merely leads to a nominal increase in the value of assets. This study, conducted through a library-based and descriptive-analytical method and with reference to theories of distributive justice, examines the question of whether capital gains should be adjusted for inflation for tax purposes. The research concludes that in the presence of inflation—particularly in countries with underdeveloped financial markets—if capital gains tax is imposed on nominal rather than real gains, it will result in economic lock-in effects, reduced incentives to save, violations of theories of justice, and ultimately capital flight. Such outcomes are inconsistent with the efficiency objectives of tax policy and impose significant burdens on a nation’s economy.
Public Law
Erfan Mostamand; Ali Akbar Gorji Azandariani
Abstract
So far several bills with the content of mandating "Islamic Hijab" have been passed in Iran. "This study examines whether the legal mandate of the 'Islamic Hijab' is consistent with the fundamental principles of good legislation." In the form of a descriptive-analytical ...
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So far several bills with the content of mandating "Islamic Hijab" have been passed in Iran. "This study examines whether the legal mandate of the 'Islamic Hijab' is consistent with the fundamental principles of good legislation." In the form of a descriptive-analytical study, the legal mandate of the "Islamic Hijab" can be considered contrary to good legislation in three respects: the language of the law, legal principles such as the rule of law, and content principles such as effectiveness. The innovation of this study lies in raising the issue of the requirement of the "Islamic Hijab" from the perspective of good legislation and cautious reflection on the disputed norm of the hijab. There is ambiguity and generality in the language of these laws, which provides room for institutions such as the Supreme Council of the Cultural Revolution, the police force, and judges to violate the rule of law. Ultimately, the effectiveness of the legal mandate of the "Islamic Hijab" is seriously questioned. The legislator is expected to scrutinize the law and legislation more than ever in order to prevent the passage of poor-quality, poorly enforced laws and the waste of public funds.
Public Law
Mohammad Solgi; Mehdi Hadavand
Abstract
This article analyzes the dual system of workers’ representation in German labor law, which is based on two complementary yet distinct institutions — trade unions and works councils — that form the foundation of the country’s industrial democracy. The main research problem is to evaluate the ...
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This article analyzes the dual system of workers’ representation in German labor law, which is based on two complementary yet distinct institutions — trade unions and works councils — that form the foundation of the country’s industrial democracy. The main research problem is to evaluate the effectiveness of this system in the face of structural transformations in the contemporary labor market, including the expansion of digital employment, declining union membership, and increasing workforce fragmentation. The central research question asks whether the dual system of workers’ representation remains capable of responding to the evolving needs of the labor force or requires institutional reconstruction and legal reform. The study adopts a descriptive–analytical and interdisciplinary approach, drawing on legal, historical, and institutional data to examine the origins, structure, and evolution of this system. The findings indicate that while the dual representation model remains effective in traditional industries, it faces significant weaknesses in new forms of employment. study concludes that the sustainability of this legal framework depends on strengthening the linkage between trade unions and works councils, expanding the inclusiveness of representation, and adapting to technological and labor market changes to maintain the balance between social justice and economic dynamism within Germany’s industrial democracy.
Public Law
mahdi mollaei
Abstract
The right to freedom of expression, as a fundamental human right, plays a key role for children and is the basis for their active participation in society. The fundamental question is what is the scope of a child’s right to freedom of expression and how is this right guaranteed? In Iran, although Article ...
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The right to freedom of expression, as a fundamental human right, plays a key role for children and is the basis for their active participation in society. The fundamental question is what is the scope of a child’s right to freedom of expression and how is this right guaranteed? In Iran, although Article 24 of the Constitution and Article 175 of the Islamic Penal Code recognize freedom of expression, there are limitations such as “harming national security” or “contrary to public morality.” In contrast, the American legal system, citing the First Amendment to the Constitution, emphasizes the right of students to express themselves in educational environments as long as serious disruption is not caused and the authority of schools to censor content related to the curriculum. In the United States, an approach based on a balance between individual rights and educational order prevails, while in Iran, centralized legislation and religious restrictions play a fundamental role. American laws have a special focus on protecting children in cyberspace, while Iran emphasizes more on controlling media and educational content. The proposal to add supplementary materials to the Law on the Protection of Children and Adolescents is one of the achievements of this article.
Public Law
mahdi moradi berelian; Mohammad Ghsem Tangestani
Abstract
Carl Schmitt’s theory of political unity—centered on the conceptual distinction between Constitution and constitutional laws—offers a radical alternative for understanding the legitimacy of constitutional law and the ontological foundations of legal order in modern states. Contrary to normative ...
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Carl Schmitt’s theory of political unity—centered on the conceptual distinction between Constitution and constitutional laws—offers a radical alternative for understanding the legitimacy of constitutional law and the ontological foundations of legal order in modern states. Contrary to normative approaches such as Kelsen’s Grundnorm theory, Schmitt maintains that legitimacy does not emerge from abstract norms but rather from a concrete and historical political decision through which the people recognize themselves as a unified political subject. Within this framework, the constitution is not a mere set of formal norms but the manifestation of the founding will of the people. This article analyzes Schmitt’s key work State, Movement, People, arguing that constitutional law is, in Schmitt’s view, a product of the constituent power, not its source. Through a philosophical reading of Schmitt’s triadic model—State, Movement, and People—the study explores how political unity underpins the representational structure of constitutional orders. Using a conceptual-analytical methodology, the article highlights the primacy of the constituent decision as the basis of legitimacy, offering a new theoretical lens for addressing contemporary legitimacy crises and rethinking the relationship between people and law.
Public Law
Javad Yahyazadeh; Hassan Vakilian
Abstract
IntroductionThe 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 ...
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IntroductionThe 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 ReviewA 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 MethodsThe 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. ConclusionThe 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.
Public Law
navid sheydaei ashtiani; Bijan Abbasi
Abstract
1. Introduction
During more than four decades since the Islamic Revolution of 1979 in Iran, several councils have been established that have had a significant impact on the country’s constitutional structure. The first of these was the Supreme Council of the Cultural Revolution, created a few ...
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1. Introduction
During more than four decades since the Islamic Revolution of 1979 in Iran, several councils have been established that have had a significant impact on the country’s constitutional structure. The first of these was the Supreme Council of the Cultural Revolution, created a few months after the Islamic Revolution, when the Islamic Consultative Assembly had not yet begun its activities. Another important example is the Supreme Council of Cyberspace, established by order of the Supreme Leader in 2012 to formulate major policies and decisions related to cyberspace. The influence of these institutions should not be underestimated, as they have directly and indirectly shaped the Constitution of the Islamic Republic of Iran. Typically, any constitution has two primary functions: defining the organization of state powers and recognizing the fundamental rights and liberties of the people. The changes brought about by these councils touch on both of these aspects. The present study aimed to evaluate the impact of the Supreme Council of Cyberspace on the constitutional framework of the Islamic Republic of Iran. This council is especially significant because, although the Constitution does not explicitly mention it, it plays a remarkable role in governance. While it appears to act merely as a policymaking body, in practice it sometimes assumes legislative functions—powers that the Constitution does not formally grant it. Therefore, these councils warrant careful attention. Understanding Iran’s constitutional law is impossible without assessing the influence of these councils. They have actually created a living constitution that we live by.
Literature Review
Several articles have offered the legal analysis of the Supreme Council of Cyberspace. These studies include: “The Multiplicity of Legislative Bodies Emphasizing the Position of Supreme Council of Cyberspace Approvals in Iranian Legal System” (Moradkhani & Takaloo, 2021), “The Jurisdiction of the General Board of the Administrative Court of Justice” (Darvishvand, 2023), and “Monitoring the Approvals of the Supreme Council of Cyberspace in the Legal System of the Islamic Republic of Iran” (Pirniya & Abrishami-Rad, 2023). These studies address the Council primarily from a constitutional law perspective.
Materials and Methods
The present study employed library research to collect data. Then a descriptive–analytical method was used to analyze the data.
Results and Discussion
The Supreme Council of Cyberspace has dismembered the Constitution of the Islamic Republic of Iran in two significant ways. First, the Constitution guarantees the right to vote and the right to be elected; however, the members of the Supreme Council of Cyberspace are not selected through a public or national election. Second, the Constitution establishes only two valid avenues for lawmaking: through the Islamic Consultative Assembly and, in exceptional cases, by referendum as outlined in Article 59, which states: “In very important economic, political, social, and cultural issues, the exercise of legislative power may be carried out through a referendum and direct reference to the people. The request for a referendum must be approved by two-thirds of all members of the Islamic Consultative Assembly.” Accordingly, any imposition of rules or restrictions by institutions acting as legislative bodies, beyond those authorized in Articles 58 and 59, is unconstitutional. Since the Supreme Council of Cyberspace functions in practice as a legislative body, its actions represent a direct dismemberment of the constitutional framework.
Conclusion
The study examined the timing and context of the establishment of the Supreme Cyberspace Council, its structure, and its developments. The analysis outlined the circumstances surrounding the Council’s establishment and highlighted certain conflicts between the Council and other organizations that existed at the time. The concept of constitutional change was also introduced in general terms, and a distinction was made between formal and informal constitutional changes. Finally, the study focused on the concept of constitutional dismemberment and analyzed the effects of the Supreme Council of Cyberspace on Iran’s constitutional order.
Public Law
Meisa Kamyab
Abstract
Introduction
The discussion of judicial empathy forms part of the longstanding debate over the dichotomy between emotion and reason, in which emotions are often portrayed as unruly, destabilizing forces incompatible with the rule of law. Although empathy has become a common term in critical studies, ...
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Introduction
The discussion of judicial empathy forms part of the longstanding debate over the dichotomy between emotion and reason, in which emotions are often portrayed as unruly, destabilizing forces incompatible with the rule of law. Although empathy has become a common term in critical studies, it is rarely defined or described, and is usually assessed only as a positive concept contrasted with something negative or undesirable. Once introduced into the legal sphere, however, the term acquires a limited and complex meaning for several reasons. The separation between ethics and law, the substantive differences between judging and therapeutic practice, and concerns about maintaining the rule of law and equal treatment all contribute to skepticism toward incorporating empathy into judicial proceedings. There is no doubt that empathy plays an important role in social life; however, the central issue in scholarship on law and emotion concerns the role that empathy should play in the judicial process. In this respect, the current study argued that debating whether judges ought to possess empathy is ultimately futile, because they inevitably rely on this emotional capacity. A judge employs empathy as a tool to understand conflicting claims. Empathy enables judges to grasp the perspectives of both parties in a dispute; however, it does not determine the outcome of a case or favor one side over the other. The key questions, therefore, concern toward whom judges should direct their empathy, how they should express it, and the extent to which they recognize its limitations. Accordingly, this study first defined empathy, then examined the arguments of both its proponents and its critics. It went on to provide examples of empathetic perspectives in judicial proceedings. Affirming empathy as an essential emotional capacity, the study finally proposed strategies for cultivating an empathetic judiciary.
Literature Review
Scholarship on law and emotion began to gain prominence with the publication of a volume titled The Passions of Law (Bandes, 1999). The contributors to this volume sought to trace the influence of emotions across various domains of law. In Hiding From Humanity, Nussbaum (2004) approached the relationship between law and emotion from a philosophical standpoint. She drew attention to the emotions of disgust and shame and warned against their use in law because they stem from an unrealistic desire to avoid vulnerability. The volume Law, Reason, and Emotion (Sellers, 2017) treated emotion as one of the forces that shapes and strengthens the law. In “The Persistent Cultural Script of Judicial Dispassion,” Maroney (2011) highlighted the persistent ideal of judicial dispassion by investigating its historical roots. She then dealt with legal actors, judicial temperament, and emotion regulation, distinguishing her work from more philosophical accounts by grounding it in neuroscientific research. White (2014), in “Till Human Voices Wake Us,” examined human dignity cases, referred to emotions as indispensable for reaching just decisions, identifying their roles as “orientation, tracker, and service” (p. 201). There are also several studies on law and emotion in the Iranian context. For instance, Kamyab and Jalali (2022) in “Law and Emotion: The Implications of Neuroscience for Legal Decision-Making” sought to initiate the discussion on the role of emotions in legal decision-making and moral judgment. Empirical evidence proved that mirror neurons—a shared neural mechanism—form the evolutionary basis of empathy and constitute a common language for understanding rights. In “Loss of Free Will in the Iranian Criminal Justice System,” Petoft et al. (2023) examined the role and reliability of neuroscientific evidence in legal proceedings. Despite these valuable contributions, a gap remains regarding how empathetic responses should be incorporated into the law, particularly in judicial decision-making. The current research aimed to address that gap by clarifying the concept of empathy and examining the challenges and misconceptions surrounding its use in judicial discourse.
Materials and Methods
This study falls within the field of normative legal research. Normative legal theory aims to provide a self-sufficient account of the law, its concepts, and its principles. The present analysis adopted a legal–doctrinal approach within the broader law and emotion scholarship, seeking to explore how emotion is, could be, or should be reflected in specific areas of legal doctrine or law. It also employed an approach about the legal actor to examine how the behavior of particular legal actors—in carrying out their legal functions—is, could be, or should be influenced by emotion.
Results and Discussion
Empathy should not only be permitted within the legal professions and judicial practice, but actively encouraged in the interest of equality and the rule of law. As an emotional capacity, empathy serves both as a source of understanding in legal proceedings and as a tool for interpretation. However, legal education can impede the development of empathetic responses in judging, as it often treats factors such as emotion as irrelevant. This view within legal discourse restricts both emotional and cognitive engagement, leading to the marginalization of empathetic understanding. Human beings inevitably rely on empathy, yet even with the best intentions, this empathy is often selective and prone to blind spots. Awareness of this tendency allows us to strive for correction. However, research in cognitive psychology and decision-making indicates that human beings are not always adept at identifying or challenging flaws in their own assumptions in interactions with others. Judges, like all humans, make better decisions when they critically re-examine their assumptions. Yet this re-examination does not occur in a vacuum. A judge who fails to recognize empathy as a prerequisite for fair judgment faces significant challenges in reaching an empathetic decision. Therefore, cultivating and encouraging empathy is essential, alongside promoting pluralism in judicial appointments.
Conclusion
The life experience of any individual is limited; in addition, their perspectives are shaped by the contexts in which they are raised. It is thus unrealistic to expect a judge to fully empathize with all parties involved in a case. Therefore, structuring courts with multiple judges can introduce diverse perspectives into the adjudication process. Measures such as incorporating empathy into judicial training, promoting diversity and plurality in judicial appointments, and encouraging legal storytelling are approaches that can help cultivate a more empathetic judiciary. Storytelling is an important approach to foster empathetic judging. Narratives capture real human experiences and can serve as powerful tools for promoting empathetic understanding. A tangible story often illustrates lived experiences more effectively than abstract theory, encouraging judges to respond with genuine care and empathy. Advocates of legal storytelling and empathetic decision-making tend to share two key concerns. First, legal theory and discourse have become increasingly detached from individual experiences. Academics, judges, and lawyers often focus on general concepts and abstractions, neglecting the human realities underlying the law. Narratives, by contrast, heighten the sensitivity of legal actors to these realities, presenting life as it is rather than as the law describes it. By bringing the law closer to people’s lived experiences and giving voice to the less heard, narratives guide legal actors toward more empathetic responses. Every judge and legal actor should take both their own and others’ emotional experiences seriously. By engaging in open discussion, acknowledging these emotions, and embracing judicial empathy, they can contribute to the advancement of scholarship in the field of aw and emotion.
Public Law
seyedeh zahra saeid
Abstract
1. Introduction
Political systems can be classified according to various parameters and variables. Among the key concepts used to explain and distinguish political systems are the notions of unified government and divided government. These concepts, widely discussed in political science, are also valuable ...
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1. Introduction
Political systems can be classified according to various parameters and variables. Among the key concepts used to explain and distinguish political systems are the notions of unified government and divided government. These concepts, widely discussed in political science, are also valuable in the study of fundamental rights due to the close relationship between the two fields. Explaining political systems through the lens of unified and divided governments provides clearer insight into the relationship between the branches of power. A unified government exists when the political alignment between the executive and legislative branches is structurally guaranteed. In contrast, a divided government occurs when the processes by which the executive and the legislature come to power do not ensure political alignment between them. Furthermore, when disagreement or division arises between the president and the prime minister within the executive branch, the result is a divided government within the executive itself. Unified elections for both the government and the parliament tend to produce a unified government, whereas separate elections for these bodies often lead to a divided government. Similarly, periods of cohabitation of the president and the prime minister create a divided government within the political system. In general, parliamentary systems emerge as a result of a unified government, while presidential systems are characterized by a divided government between the executive and the legislature. A semi-presidential system results from a divided government within the executive branch. Applying these concepts can help identify the nature of the political system of the Islamic Republic of Iran. Analyzing Iran’s political system in two periods—before and after the constitutional amendment—through the lens of political science theories provides insights that differ from those found in the works and interpretations of legal scholars.
Literature Review
Regarding the political system of the Islamic Republic of Iran, both Iran’s constitutional law and comparative constitutional law literature briefly refer to it as a semi-presidential or semi-parliamentary–semi-presidential model. Several scholarly articles have also characterized the political system of the Islamic Republic of Iran as semi-presidential in nature. A common feature among these analyses is their focus on the parliament’s constitutional oversight mechanisms over the government. However, none of the previous studies have examined the relationship between the government and the parliament within the framework of political science concepts such as unified government and divided government. Furthermore, the present study differs from most previous works that have classified the political system of the Islamic Republic of Iran according to existing typological models. Concerning the relationship between the government and the parliament, the current analysis aimed to challenge the claim that the political system of the Islamic Republic of Iran is semi-presidential. Adopting the findings of this study could have far-reaching implications for the political and legal system of the Islamic Republic of Iran, potentially leading to significant reforms and changes in the relationships among the branches of power.
Materials and Methods
The present study used a critical–analytical approach to address the nature of the political system of the Islamic Republic of Iran.
Results and Discussion
The theoretical analysis of the relationships within the political system of the Islamic Republic of Iran—prior to the constitutional amendment—revealed significant insights. For example, the incorporation of Prime Minister in the Constitution created a unified government between the executive and the legislature. However, in practice, the absence of a clear majority criterion in appointing the prime minister led to recurring conflicts in this regard. At that time, the leadership, the president, and the prime minister together constituted the executive branch. This situation changed following the constitutional amendment approved in 1989, which abolished the position of Prime Minister. As a result, and due to the lack of a mechanism ensuring alignment between the government and the Islamic Consultative Assembly, the system has since exhibited characteristics of a divided government in the relationship between the executive and the legislature. Given the constitutional division of executive authority between the Leader and the President, the application of the concept of a divided government within the executive branch itself also warrants consideration. Therefore, the characterization of the political system of the Islamic Republic of Iran as semi-presidential is inaccurate.
Conclusion
In terms of the relationship between the government and the parliament, the political system of the Islamic Republic of Iran more closely resembles a presidential system. To accurately determine the political type of the Islamic Republic of Iran, it is essential to analyze the nature of the relationship between the positions of Leader and President, as well as its distinctions from the semi-presidential model.
Public Law
Mohaamad Shaabani Jahromi; Mohammad Bahadori jahromi; Alireza Mazinani
Abstract
1. Introduction
Political systems can be classified according to various parameters and variables. Among the key concepts used to explain and distinguish political systems are the notions of unified government and divided government. These concepts, widely discussed in political science, are also valuable ...
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1. Introduction
Political systems can be classified according to various parameters and variables. Among the key concepts used to explain and distinguish political systems are the notions of unified government and divided government. These concepts, widely discussed in political science, are also valuable in the study of fundamental rights due to the close relationship between the two fields. Explaining political systems through the lens of unified and divided governments provides clearer insight into the relationship between the branches of power. A unified government exists when the political alignment between the executive and legislative branches is structurally guaranteed. In contrast, a divided government occurs when the processes by which the executive and the legislature come to power do not ensure political alignment between them. Furthermore, when disagreement or division arises between the president and the prime minister within the executive branch, the result is a divided government within the executive itself. Unified elections for both the government and the parliament tend to produce a unified government, whereas separate elections for these bodies often lead to a divided government. Similarly, periods of cohabitation of the president and the prime minister create a divided government within the political system. In general, parliamentary systems emerge as a result of a unified government, while presidential systems are characterized by a divided government between the executive and the legislature. A semi-presidential system results from a divided government within the executive branch. Applying these concepts can help identify the nature of the political system of the Islamic Republic of Iran. Analyzing Iran’s political system in two periods—before and after the constitutional amendment—through the lens of political science theories provides insights that differ from those found in the works and interpretations of legal scholars.
Literature Review
Regarding the political system of the Islamic Republic of Iran, both Iran’s constitutional law and comparative constitutional law literature briefly refer to it as a semi-presidential or semi-parliamentary–semi-presidential model. Several scholarly articles have also characterized the political system of the Islamic Republic of Iran as semi-presidential in nature. A common feature among these analyses is their focus on the parliament’s constitutional oversight mechanisms over the government. However, none of the previous studies have examined the relationship between the government and the parliament within the framework of political science concepts such as unified government and divided government. Furthermore, the present study differs from most previous works that have classified the political system of the Islamic Republic of Iran according to existing typological models. Concerning the relationship between the government and the parliament, the current analysis aimed to challenge the claim that the political system of the Islamic Republic of Iran is semi-presidential. Adopting the findings of this study could have far-reaching implications for the political and legal system of the Islamic Republic of Iran, potentially leading to significant reforms and changes in the relationships among the branches of power.
Materials and Methods
The present study used a critical–analytical approach to address the nature of the political system of the Islamic Republic of Iran.
Results and Discussion
The theoretical analysis of the relationships within the political system of the Islamic Republic of Iran—prior to the constitutional amendment—revealed significant insights. For example, the incorporation of Prime Minister in the Constitution created a unified government between the executive and the legislature. However, in practice, the absence of a clear majority criterion in appointing the prime minister led to recurring conflicts in this regard. At that time, the leadership, the president, and the prime minister together constituted the executive branch. This situation changed following the constitutional amendment approved in 1989, which abolished the position of Prime Minister. As a result, and due to the lack of a mechanism ensuring alignment between the government and the Islamic Consultative Assembly, the system has since exhibited characteristics of a divided government in the relationship between the executive and the legislature. Given the constitutional division of executive authority between the Leader and the President, the application of the concept of a divided government within the executive branch itself also warrants consideration. Therefore, the characterization of the political system of the Islamic Republic of Iran as semi-presidential is inaccurate.
Conclusion
In terms of the relationship between the government and the parliament, the political system of the Islamic Republic of Iran more closely resembles a presidential system. To accurately determine the political type of the Islamic Republic of Iran, it is essential to analyze the nature of the relationship between the positions of Leader and President, as well as its distinctions from the semi-presidential model.
Public Law
Hasan Mohammadi; Ali Mashhadi
Abstract
IntroductionThe 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, ...
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IntroductionThe 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 ReviewThe 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 MethodsThe 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.
Public Law
Mahin Sobhani; Alireza Bazri; Zahra Sobhani
Abstract
IntroductionAccording to Article (31) of the Constitution of the Islamic Republic of Iran, access to adequate housing is the right of every Iranian individual and family; the government is obliged to make this right a reality, with priority given to those in greater need, particularly villagers and ...
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IntroductionAccording to Article (31) of the Constitution of the Islamic Republic of Iran, access to adequate housing is the right of every Iranian individual and family; the government is obliged to make this right a reality, with priority given to those in greater need, particularly villagers and laborers. Based on this constitutional principle, securing access to housing has been a major concern of Iranian governments since the Islamic Revolution. Nevertheless, this goal has not yet been fully achieved. The right to housing (or the right to shelter) is recognized as an economic, social, and cultural right under Article (25) of the Universal Declaration of Human Rights and Article (11) of the International Covenant on Economic, Social and Cultural Rights. Some national constitutions, such as those of South Africa and Nigeria, explicitly affirm the right to housing as a fundamental right. In contrast, legal systems such as that of the United States largely omit such recognition, with the exception of a single state.This divergence reflects a broader debate over the nature and scope of the right to housing as a human right. Consequently, it cannot be treated as entirely analogous to civil and political rights, or even to other economic, social, and cultural rights. In Iran, the fulfillment of the right to housing—declared as one of the key commitments of the Thirteenth Administration—led to the enactment of the Housing Production Leap Act in 2021 (1400 S.H.). Under Article (10), executive bodies are obliged to transfer—free of charge—the lands under their control that fall within the scope of Article (6) of the Law on the Regulation and Support of Housing Production and Supply. These lands must be transferred in the name of the government and for the benefit of the Ministry of Roads and Urban Development. The obligations set forth in Articles (6) and (10) extend to all ministries, government institutions and agencies, as well as companies wholly owned by the state. Based on these provisions, the Ministry of Roads and Urban Development, relying on its own interpretation, has also moved to apply the law to lands administered by public universities. In this respect, several key question arise: notwithstanding Paragraph (a) of Article (49) of the Fourth Development Plan Act; Article (10) of the Law on the Goals, Duties, and Structure of the Ministry of Science, Research, and Technology; Paragraph (b) of Article (20) of the Fifth Development Plan Act; and Article (1) of the Law on the Permanent Provisions of the Country’s Development Plans, should universities be regarded as governmental entities subject to this obligation? Moreover, given the reference to the lands under the control of the government, does this not suggest a distinction between proprietary (private) property, on the one hand, and public property allocated by the state to executive bodies, on the other? Finally, can the government impose the obligation of free transfer even with respect to the proprietary assets of such entities? Literature ReviewSome scholarly works have examined the legal status of property held by Iranian universities or discussed the concept of the right to housing. For example, Tabatabai-Hesari and Safizade (2021) discussed the issue in their article titled “Public, Private or Governmental Nature of Public universities’ Real Estate in Jurisprudence of Administrative Court of Justice.” Moreover, in “The Justiciability of the Right to Housing in International Human Rights Law and the Iranian Legal System,” Moshrefjavadi et al. (2022) dealt with the right to housing in international and national laws. Contrary to the previous research, the present study is broader in scope and represents a novel contribution to the existing literature. Materials and MethodsThis article employed a descriptive–analytical method, drawing upon relevant legislation, judicial precedents, and existing legal doctrines, to address the aforementioned questions and clarify the ambiguities surrounding the laws. To this end, it first examined the objective and mechanism of implementing the Housing Production Leap Act, which mandates the free allocation of state-owned land to the Ministry of Roads and Urban Development for the purpose of housing construction. Accordingly, it was necessary to determine the legal nature of the lands in question. The study then turned to the specific legal framework governing public universities and analyzed the implementation challenges associated with university-owned property. Particular attention was given to judicial practice, especially rulings issued by the General Court of Fuman and the Court of Appeals of Guilan Province concerning the properties of the University of Guilan. Results and DiscussionThe primary mechanism envisioned for implementing the Housing Production Leap Act involves the free transfer of land owned by governmental entities to the Ministry of Roads and Urban Development, with the aim of redistributing these lands to households lacking adequate housing. From the outset, however, the law’s lack of clarity gave rise to significant ambiguities regarding its enforcement. Chief among these is the obligation of free transfer, which appears to conflict with the provisions of the Public Accounts Act. According to that Act, any transfer of state-owned immovable property must be approved by the Cabinet and must involve compensation; gratuitous transfers are explicitly prohibited. Furthermore, the Iranian legal system’s interpretation of the right to housing appears to diverge substantially from the core principles underlying this human right.The right to housing entails not only protection from arbitrary government interference but also the government’s obligation to prevent third-party intrusions into individuals’ homes. However, imposing a duty on a government experiencing severe budgetary deficits to transfer land or housing to individuals for free is neither economically rational nor consistent with human rights principles. Given the government’s limited resources, it remains unclear how such valuable assets could be allocated—even through discounted or installment-based schemes—especially when the criteria for identifying eligible beneficiaries are themselves ambiguous. ConclusionA major criticism of the Housing Production Leap Act concerns its application to lands held by public universities. Many of these lands were not allocated by the government, but were instead donated or transferred by private benefactors for specific educational purposes. Empowered with broad authority under the Act, the Ministry of Roads and Urban Development has, in numerous cases, proceeded to expropriate university lands across the country merely upon request and without conducting any proper site assessments. This approach stands in stark contrast to two rulings issued by the General Board of the Administrative Justice Court in 2021, which explicitly affirmed that university boards of trustees have full legal authority over the transfer and management of property owned by universities. Accordingly, the decisions rendered by Chamber Two of the General Court of Fuman and Chamber Seven of the Guilan Province Court of Appeals— which invalidated the actions of the local Roads and Urban Development Office regarding an eight-hectare plot donated to the University of Guilan—are fully consistent with the principle of financial autonomy of public universities over their proprietary assets.
Public Law
Salah Ghsemyani; Mohammd Reza Mojtehedi; Mohammd Mazhari; Syed Hussain Malkuti Hashjinmalakooti@
Abstract
IntroductionDecentralization has established itself globally as a preferred model of governance in today’s world. In this respect, the present article highlights the value of adopting a decentralized model of government that grants broad powers—not only in administrative matters but also ...
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IntroductionDecentralization has established itself globally as a preferred model of governance in today’s world. In this respect, the present article highlights the value of adopting a decentralized model of government that grants broad powers—not only in administrative matters but also in legislation—to citizens at the local level. In Iran, the question of local decentralization first emerged during the Constitutional Revolution through the creation of state and provincial associations. After the victory of the Islamic Revolution, these associations were replaced by local Islamic councils. Following the directive of the Revolution’s leader to the Revolutionary Council, the councils were given legal status even before the drafting of the constitution. Despite this historical background, decentralization in Iran still faces significant legal challenges. This raises important questions: Has a true system of local decentralization been established in Iran, given the constitutional provisions for state associations and local Islamic councils? What are the defining features of a decentralized system? What legal and extra-legal conditions are necessary to build such a system in Iran? To what extent can revisiting Iran’s past experience help us understand the challenges of that period? What steps should be taken to redesign Iran’s local decentralization model? And what solutions are needed to overcome its legal obstacles? Literature ReviewSo far, the issue of decentralization has been examined in many fields of the humanities, including public law, political science, and management. In this context, a number of legal studies can be noted. In “Pathology of Islamic Councils’ Powers from the Perspective of the Separation of National and Local Affairs,” Shamiri et al. (2022) examined the challenges faced by the councils in the constitution and ordinary law, particularly the failure to delegate sufficient duties and powers. They emphasized the need to revise the Guardian Council’s interpretive approach. Similarly, in their research titled “The Role of Comprehensive Decentralization in Realization of an Efficient Local Government,” Rahmatollahi et al. (2015) stressed the importance of transferring the maximum possible decision-making authority in both administrative and political affairs to citizens, as a means of establishing an effective and democratic local government.Gurji-Azandriani and Abolhasani (2016), in their study “The Role of the Council in the Management of Public Affairs: Decision-Maker or Decision-Shaper?” argue that in legal thought, Shura (or council) is defined as an institution with general powers for decision-making, decision-shaping, and oversight. However, the council, as a consultative institution in Islam, lacks authority beyond decision-shaping. They highlight problems and inaccuracies in labeling many institutions Shura (or council) within the political–legal system of the Islamic Republic of Iran, noting that diverse legal bodies have been labeled as Shura without a clear and consistent definition.Moreover, in “The Study of Qualification Vulnerability of Islamic Councils in Iran’s System of Law,” Moeinfard et al. (2019) emphasize that Islamic Councils neither possess sufficient powers nor benefit from a proper separation of national and local affairs in the laws. They add that varying interpretations by the Guardian Council, combined with these legal shortcomings, have prevented Islamic Councils from realizing their true potential and undermined their dignity and role. “A Comparative Approach to Local Decentralization in Iran” (Aghaei-Togh, 2018) focused on the functioning of councils and concluded that two of the three essential elements of local decentralization have not been incorporated into Iran’s legal system. Habib-Nejad (2009), in “A Legal Examination of Islamic City Councils in Light of the Principles of Decentralization,” used an analytical approach focused on both technical and geographical dimensions in order to examine decentralization and the shortcomings of Islamic Councils in Iran. Finally, in the Persian-language book Decentralization and Self-Management, Khobroy-Pak (2005) criticized the applicability of federalism to Iran, defending instead the constitutional principles governing the administration of provinces and localities. He calls for a re-examination of the solutions proposed by the framers of Iran’s first constitution for managing the relationship between the central government and local regions, arguing that new measures are necessary today. Materials and MethodsThe current study used a descriptive–analytical method to examine the issue of decentralization and its challenges in Iran. Moreover, content analysis was applied to analyze the data collected from various library and documentary sources. Results and DiscussionThe challenges of local decentralization in Iran have been analyzed across legal, interpretive, judicial, and structural dimensions. The first challenge concerns conceptual ambiguity regarding the status of councils, the lack of formal recognition of the decentralization system, and the absence of legal personality for territorial units in Iran’s constitution. In addition, the lack of explicit legislative authority, the failure to establish effective enforcement guarantees, and the incomplete adoption of local councils modeled on provincial associations represent further obstacles to the establishment of such a system. Another challenge arises from the Guardian Council’s conservative interpretation of the Constitution, which has relegated councils from decision-making bodies in governance to merely advisory and supervisory roles. A further challenge is the approach of the Administrative Justice Court as a judicial authority, which has frequently limited the powers of local councils. Finally, Iran’s deeply rooted centralized power structure, with its several-thousand-year historical background, has not readily embraced the culture of democracy or the distribution of power to local councils. Conclusion This research examined the policy of decentralization in Iran. A prerequisite for democracy in any country is the creation of a framework that guarantees freedom and enables people’s participation in local governments. Adopting a decentralization model by transferring local affairs to citizens and involving them in decision-making will not only strengthen citizenship rights but also enhance local participation. In conclusion, it is essential to revise and amend the Constitution, change the perspectives of the legislature and the Guardian Council, and reform the Administrative Court of Justice and executive bodies—especially the Ministry of Interior—regarding the role of councils. However, none of these measures alone can transform the country’s political structure and culture. Such change is only possible through the active presence of a developed and engaged citizenry. Although this process began with the experiences of the Constitution and the Islamic Revolution, it remains incomplete and must be further pursued.
Public Law
Seyed Naser Soltani; kazem Ahmadi
Abstract
IntroductionIt 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, ...
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IntroductionIt 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 ReviewThere 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 MethodsAs 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 DiscussionAccording 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.ConclusionSchmitt 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.
