Public Law
Javad Yahyazadeh; Ali Farhadian
Abstract
1. IntroductionThe most important or one of the most important concepts in the legal sciences and legal systems is the controversial concept of “right” which has a long history behind it. In the meantime, “The right to be wrong” has also entered legal texts and documents in addition ...
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1. IntroductionThe most important or one of the most important concepts in the legal sciences and legal systems is the controversial concept of “right” which has a long history behind it. In the meantime, “The right to be wrong” has also entered legal texts and documents in addition to theory. This right is the result of the growth of rights and the product of many centuries of struggle between the government and citizens in Western liberal thought and the result of various social, economic, and political happenings. The "right to be wrong" in a simple and concise sense, means respecting the conscience of others, even when we are sure they are wrong. In other words, this concept means non-interference of others in the wrongdoing of the right holder. Based on this, a person can build his moral system in such a way that, even according to others, is considered wrong, unjust, or immoral. "Right to die" or "Right to refuse medical treatment" and "Abortion", "Right to choose a racist party", and "Homosexuality" and... are some clear examples of the right to be wrong. Right to be wrong, which emphasizes the trans-ethical nature of rights by differentiating the right in the objective and subjective sense i.e., between "being right" and "having a right", reveals the content of the right in a new sense. Acknowledging the concept of having a right to be wrong in legal systems implies the acceptance of the principle of tolerance in regulating and harmonizing the legal relations of citizens and accepting the concept of "pluralism" instead of "plurality". Literature ReviewComparing the concept of the right to be wrong with the basic foundations of the legal system of the Islamic Republic of Iran voiced in the constitution shows that it cannot be assumed that this concept is accepted by the constitutional legislature through neither the textualist, structuralist nor intentionalist interpretation methods. Reflecting on the fourth and fifth articles, the twenty-sixth and twenty-seventh in particular, the sixth paragraph of article 2, and finally the thirteenth article of the constitution, confirms the claim of the authors in this regard with a loyal and faithful interpretation of the text and the structure of the constitution. Also, referring to the constitutional negotiations documents -as an important source in understanding the fundamental rights of societies- in an attempt at an intentional interpretation, does not open a way to apply the concept of right to be wrong in this system. However, using the philosophical hermeneutic method instead of the previous interpretive methods, which seeks a dynamic interpretation of the text by understanding the "meaning of the meaning", while paying attention to the "requirements of the time", "the historicity of the text" and finally "the compromising between of the views of the author and the interpreter", makes the idea of accepting the right to be wrong in this legal order and system possible. MethodologyIn this research, in addition to clarifying the concept, the theoretical foundations and justifications of the "right to be wrong", and emphasizing its prominence and prevalence in legal systems, its possibility in the Constitution of the Islamic Republic of Iran was measured and examined through the hermeneutic method. Discussion The Guardian Council, which according to Article 98, is the only official interpreter of the Constitution of the Islamic Republic of Iran, has prevented the possibility of using a dynamic interpretation method, especially the new hermeneutics method, and refuses to accept the right to be wrong since its establishment. This institution has only authorized and used the two methods of textual interpretation (with an emphasis on the literary meaning of the word) and intentional interpretation, in the framework of the principles of Shia jurisprudence and based on Shia’s thought system in the interpretation of the holy texts and avoiding self-serving interpretation. This has become an issue that, of course, can be revised to make the domestic legal system more efficient. Reflecting on the capacities of Imamiyyah jurisprudence in identifying the concept of the right to be wrong and its application in domestic law and constitution, of course, requires another time. ConclusionThe findings of this article show that the Islamic vision accepted in the Constitution of the Islamic Republic of Iran has distinct principles regarding rights with a liberal point of view, which has manifested itself in the form of the Sharia law governing the Constitution. "God-centeredness in all matters", distinguishing between "God's right" and "people's right" and finally the supremacy of "natural rights" over "conventional rights" are unchangeable and unbreakable elements in Islamic thought. According to this view, human rights are conventional and contractual, and nature, law, and above all, human beings, do not have inherent rights. it is through God-given rights that human rights are valid. Keywords: Right, Wrong, Hermeneutics, Constitution, Islamic Republic of Iran
Public Law
Hassan Hamzehloei; Maghsood Ranjbar; Mohammad Taghi Dashty
Abstract
By recognizing the inherent duality of private law and public law, each domain has been allocated its distinct territory. Despite the relative and interconnected nature of these realms, the application of public law within its designated territory is essential due to its specific role, functions, and ...
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By recognizing the inherent duality of private law and public law, each domain has been allocated its distinct territory. Despite the relative and interconnected nature of these realms, the application of public law within its designated territory is essential due to its specific role, functions, and methodologies. Throughout history, fundamental rights (public laws) have governed the relationship between the government and its citizens, while private rights (civil laws) have governed the interactions between individuals. This demarcation of territories is not exclusive to Iran; numerous countries worldwide have embraced this division, leading to significant substantive and procedural implications.Notably, in recent years, Iran has witnessed a notable expansion of the public law domain within its legal system, which has raised concerns about its extent. This expansion can be attributed to several underlying reasons. One primary factor is the inadequacy and limitations of existing private law regulations in resolving societal issues. Consequently, legislators are compelled to address private law matters by formulating solutions based on public law principles, inadvertently diverting the core problem into the realm of public law. This practice, however, fails to address the root causes and restricts the available solutions to those provided by public law. As a result, the practical scope of public law expands beyond its intended boundaries. The excessive and multifaceted growth of public law can have far-reaching detrimental effects.Thus, the central question emerges: What potential harm can the development of public law inflict on citizens' rights, and what are the driving forces behind this expansion in Iran? This research posits that the government's inclination towards exercising authority, excessive interventions in social and economic matters, undervaluing of liberal principles, a tendency to resort to public law in ambiguous cases, and the adaptable nature of public law methods are among the contributing factors to the widening scope of public law. Moreover, the duality of influences on Iran's public law system—Western legal traditions and Shia jurisprudence—has led to its distinct development. Some facets of Iran's public law draw inspiration from Western legal systems, while others find their origins in Shia legal doctrines.It is worth noting that Iran's legal system is bound by Article 4 of the Constitution, which mandates the utilization of Sharia rulings and adherence to Islamic standards in all laws and regulations. This requirement, however, diverges from Western legal systems where such a mandate is not observed.The realm of public law has undergone extensive development, permeating even the most intimate legal issues. Notable examples of this expansion include the broadening of public law in labor law, characterized by significant government interventions in the field. Similarly, the realm of public law has made significant strides in business law, and its influence has extended to matters concerning property rights. The objective of this research is to contribute to the advancement of public law in Iran by conducting a comprehensive analysis of its benefits and drawbacks through a systematic examination of its expansion.To fulfill this objective, we delve into the causes and factors behind the development of the public law realm, providing noteworthy examples that illustrate its expansion. The research findings establish the undeniable separation of the realms of private and public rights, despite ongoing debates regarding their differentiation. In practice, even legal systems that advocate for the unity of public and private law demonstrate a distinct educational system for public law. By acknowledging the distinction between public law and private law, while acknowledging the inherent difficulty in delineating these realms in certain cases, each legal field can be allocated its designated sphere.In recent years, there has been a notable surge in the expansion and growth of the public law realm. Numerous issues that were traditionally and conventionally within the purview of private law have now either entirely or to a significant extent fallen under the domain of public law.
Public Law
Mahdi Mahdavizahed
Abstract
PurposeChanging from "People" to "society" requires a unity of interests and a nation that connects the building blocks of the Iranian people. The present paper concerns the relationship between social changes and public law. The sociological approach to law by deepening the social roots of laws, links ...
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PurposeChanging from "People" to "society" requires a unity of interests and a nation that connects the building blocks of the Iranian people. The present paper concerns the relationship between social changes and public law. The sociological approach to law by deepening the social roots of laws, links "theories" to "facts". Therefore, this article can be classified under interdisciplinary studies of law and sociology. This study goes beyond the traditional classification of public law in the areas of constitutional law, administrative law, financial law, and labor law and can be categorized under the field of socio-legal Studies.The purpose of the paper is to show how the sociology of law affects the theory of state, as a multidisciplinary field of study.Design, Methodology, and ApproachThis article is a library-oriented study in terms of the method of data collection, and descriptive-explanatory-prescriptive in terms of research method.The method of data collection in this research is library research, and the data obtained has been studied through descriptive and explanatory methods with an interdisciplinary approach. Interdisciplinary studies are currently a hot topic in legal academia and we must differentiate between the four types in which the sociological approach to law has been classified as disciplinary, interdisciplinary, multidisciplinary, and Transdisciplinary studies. In the author’s view, public law and sociology are strongly interconnected but we can speak about the possibility of the sociology of law being multidisciplinary. In our paper, we illustrate that different methods can be used in the research of law and legal concepts, and how the methodology of controversial issues and debates in sociology is relevant to the study of law.Therefore, the article can be classified under interdisciplinary studies of law and communication.FindingsBased on the results of this article, the most important characteristic of a co-benefit society for citizens is that a sense of belonging and membership in the society is created and the main legal advantage of a government overseeing it is in its capacity and ability to solve problems. we must first appreciate that law does not generally influence individual behavior in a vacuum, devoid of social context. Instead, how people interact with the law is usually shown in their social life. Evidence from different studies demonstrates that, if we insist on the systematic imposition of values in a diverse society, we create dualities, numerous conflicts, and contradictions, and we will produce many social problems. Consequently, we will send a message to society which indicates the incompetence and inefficiency of the government. In fact, the value of the government is in its ability to efficiently manage conflicts that result from contrasting moral plans.The understanding of the state and theories of state should be firmly grounded in their social context. The state, being an artificial construct, has emerged from a complex interplay of diverse attitudes, beliefs, and values held by individuals. By recognizing the state as a product of human society, we can unveil a profound connection between its "man-made nature" and the underlying "theory of state."Against this background, in this article, I will try to use a socio-legal approach to explain “Pluralistic Society” as the social context of the formation of the democratic state. The use of the sociology of law is because it describes social changes and explains relationships with legal structures, norms, and mechanisms in the search of achieving utopia.this study finds that changes in social values and attitudes inevitably lead to irreversible plurality which is just the situation in the Contemporary Iran. Iran is so diverse in different aspects, meaning that, it has a society that gives different answers to similar questions. The desirable reaction to this cultural diversity should be tolerance and respect for different values because the changes in “citizens' beliefs” form sociocultural forces that shape democracy. Just as many social evolutions in Iran after the Islamic Revolution have arisen from changes in the social forces shaped by the public opinion. Therefore, as long as social changes gravitate toward diversity, we can hope that the best is yet to come.Originality and ValueThis article has reviewed some of the empirical and theoretical research on social norms and law and is one of the first attempts to address the role of social change in the formation of law in contemporary Iran. it has tried to provide a basic understanding as it examines the interplay between social norms and the enforcement of laws.
Public Law
Mohammad Jalali; Mehrdad Aghaei
Abstract
Linguistic minorities often have their own unique lifestyle, culture, and traditions, and they have distinct demands based on their culture. In short, this demand pertains to their right to use their mother tongue, which is different from the right of each member of these groups to use their mother tongue ...
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Linguistic minorities often have their own unique lifestyle, culture, and traditions, and they have distinct demands based on their culture. In short, this demand pertains to their right to use their mother tongue, which is different from the right of each member of these groups to use their mother tongue individually. They demand the right to use their mother tongue collectively and as a third-generation right. However, sometimes the demand for this right conflicts with national security and territorial unity. Some governments, based on their approach to the issue of rights, the conflict between them and the public interest and their own security policies limit the right to the mother tongue and take a confrontational and restrictive stance on both the general right and the specific right to the mother tongue, in consideration of the issue of territorial unity. This study aims to explore and explain the theoretical framework of this conflict and its reasons, and to provide strategies for solving this problem by describing and expanding on various theoretical discourses related to the subject. Another goal of this study is to explore some of the concepts involved in this subject and to examine an appropriate theoretical approach to related concepts, which also aids to answer the main research problem. As research backgrounds, reference can be made to the book "Language Rights and Political Theory" by Will Kymlicka, published by Oxford University Press in 2007, and the book "National Security, Human Rights, Political Legitimacy in Fragile Democracies: An Introduction to the Foundations of National Security Law" by Mehdi Rezaei, published by Khorsandi Publishing in 2018.The main purpose of this research is to explain the relationship between the right of linguistic minorities to use their mother tongue and national security and territorial unity? Within this framework, the present study, while reviewing and analyzing all the concepts involved in the subject, by adopting a reductionist approach towards the rights of minority groups and emphasizing the individual nature of rights, and with attention to the requirements of positive discrimination in insuring group rights, explains and defends the rights of minority groups to the mother tongue and the necessity of ensuring those rights. It also examines and analyzes the relationship between the right to the mother tongue and national security, and territorial unity. It shows that the closer a state's security discourse is to a negative and commodity-based interpretation, the more threatened national security and territorial unity will be, and the more it will be in conflict with the right to the mother tongue. The choice of a political-legal system to adopt a security theoretical manifest has a direct impact on the definition and boundaries of national security in that country, and the degree of its democracy and human rights also has a complete impact on the model and approach of its security discourse. Non-democratic and non-human rights systems that adopt traditional discourse in national security not only refuse to tolerate any objections and opposition by the people but also, based on various security pretexts and through "securitization", initiate suppression and threatening of public freedoms and citizens' rights. However, the modern discourse, with a focus on the citizens' demands, internal vulnerabilities, and socio-economic issues, and with regard to pluralism, democracy, and human rights, seeks security through creating national convergence and synergy. The postmodern discourse, on another hand, looks at national security with a focus on global security centered on human beings and from the perspective of fundamental human rights, culture, and cultural issues. Therefore, the two modern and postmodern discourses not only recognize the right to the mother tongue, but also guarantee it and consider guaranteeing it as a booster of national security. Regarding the right to the mother tongue, political regimes with a traditional security approach see this right and its enforcement in conflict with national security, and thus restrict the freedom of linguistic minorities. Non-democratic and non-human rights regimes, with a security-oriented approach, always label linguistic minorities as secessionist forces and with various titles, including labeling them as threats to national security and unity, and territorial unity, and they restrict the freedom to use their mother tongue. It seems that the democratic or non-democratic and human rights or non-human rights nature of a political system determines which security approach and discourse that system has, and it is this discourse that shapes the government's position on the basic freedoms and rights of the people and following that, the path of that political system will become apparent. In the face of the duality of “the existence of linguistic diversity and minorities increases threats and insecurity”, or conversely, “confronting the linguistic freedoms of minorities leads to their dissatisfaction and desire for secession", the proposition of the authors is the second approach; especially since governments that seek security only outside their borders with a traditional security perspective, naturally overlook internal security threats or even consider their source as foreign, and over time, people’s dissatisfaction with the deprivation of their fundamental freedoms such as linguistic freedom will only be one of the problems and dissatisfactions, and economic and social problems will also prevail. at that time, the centrifugal forces due to injustice, economic deprivation, and restrictions on fundamental freedoms will become more apparent. Therefore, in a general proposition, the less democratic a government is and the less commitment it has to human rights, the more traditional and outward-looking its security policies and approaches will become. It will also restrict domestic rights and freedoms, resulting in an increase in centrifugal forces and threats to national security and territorial unity. Regarding linguistic minorities Specifically, the more the governments disregard democracy and human rights, the more probable that they view national security negatively so as to consider threats only from external or foreign roots. By closing these outlets and making the phenomenon of linguistic diversity and minority mother tongues a security issue, they threaten the freedom of using the mother tongue in many aspects. On the other hand, focusing on militarization to gain security at exorbitant costs, neglecting human rights and freedoms, and the absence of a monitoring and desirable balance system for a democratic system will lead to a "crisis of efficiency" and a "crisis of legitimacy" of that political system, which will result in deep economic and social crises and dissatisfaction, especially among minorities. This economic pressure, coupled with severe repression of the freedom to use the mother tongue, will plant the seed of anomie and subsequently, the revival of separatist movements and threats to national security. Thus, the unity of the land and territorial unity will be compromised.
Public Law
omid shirzad
Abstract
Relations between state and ethics or religion is one of the important subjects in political philosophy and public law and there are several approaches about it. In this meantime, Professor Naser Katouzian refers to three kind of Relations between state and ethics or religion and points out the theory ...
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Relations between state and ethics or religion is one of the important subjects in political philosophy and public law and there are several approaches about it. In this meantime, Professor Naser Katouzian refers to three kind of Relations between state and ethics or religion and points out the theory of stipulated state to ethics, state that is beside of ethics or religion and the governor state on ethics or religion. This paper has considered the doctrine of professor and with utilization from other sources in public and constitutional law, has completed this issue .The author has considered the concepts of perfectionist and neutral state as related concepts to stipulated state to ethics, state that is beside of ethics or religion and with conceptual analysis about them, has remarked the necessity of obstruction the line from perfectionism to despotism.Naser Katouzian is undoubtedly one of the most influential figures of Iranian law in the contemporary era. An unforgettable and moral teacher whose works and school of thought every professor and student of law in Iran is indebted to and rereading his doctrine can be considered a solution to most legal problems of the society. Despite the professor's specialized entry into private and civil law and dedicating the major part of his works to this field, his concern about the relationship between the state and the nation and public law had him write in this important field and take part in preparing the draft of the Constitution of the Islamic Republic of Iran and setting up the foundations of Iran’s political-legal system.In this article, the author has turned to one of the important views of Professor Naser Katouzian regarding the relationship between the government, ethics, and religion and tries to evaluate the professor's doctrine in this field as much as possible. Reexamining this point of view was not only necessary at the beginning of the Islamic revolution, but also nowadays. It can be very effective in explaining the foundations of the Islamic Republic of Iran's constitution and governing political system. Therefore, the main Point of this research is the relationship between state, ethics, and religion in the thinking of Professor Naser Katouzian and formats and forms in which this relationship will appear.In analyzing the relationship between the state, ethics, and religion and in a basic classification, Katouzian points to the state that is bounded to ethics and religion, the state that is beside ethics and religion and is neutral, and the state that rules on ethics and religion. The professor considered religious governments, such as Islamic or Christian governments, as examples of the states that are bounded to a certain religion and considers the constitution of the Islamic Republic of Iran and some of its fundamental principles, such as Article IV, as the pledge that has bounded the state to a certain religion and ethics.In the second category, he refers to the governments that are beside ethics and religion and are neutral. In these states, the government is separated from any common philosophical and religious beliefs among the people and ethics, and religion has a personal and private feature next to the government and is ineffective in policymaking and legislation.In the third category, professor Katouzian points to the states that rule on ethics and religion in which the government takes an authoritarian approach. The government has the authority to validate and create rights, good, and even morality and it is under the government’s will that the moral progress and evolution of citizens is pursued.This paper considers the doctrine of Professor Katouzian and by looking at other sources in public and constitutional law, has developed this issue. The author has considered the concepts of perfectionist and neutral states as related concepts to states that are bound to ethics and states that are beside ethics or religion and by conceptual analysis of them has remarked the necessity of preventing the progression of perfectionism to despotism. Professor Katouzian's concern about the pure sovereignty of the government over the right and good is commendable in the author’s view. This research intends to talk about the limitations and restraints of the government's power and its lack of sovereignty over the rights and morals with reference to the professor's doctrine.Professor Katouzian criticizes authoritarian governments that rule on ethics and religion and in practice, examples of these outlooks in government such as Nazism and fascism have left bitter experiences for humanity and history. consequently, the author expresses his concern about the transition from perfectionism to authoritarianism and considers understanding the basis of modern public law as the mechanism to prevent this transition.Therefore, the legal system in a government that is bounded to ethics and religion must recognize and guarantee the values of the public such as the rule of law, separation of powers, accountability, supervision and balance, transparency, fundamental rights and freedoms for the citizens, etc. In this way, It will help to spread morality in the society. we propose that the achievement of a virtuous society is directly linked with good governance, correct management of public resources and their optimal allocation to public needs, and efficient management of conflict of interests among members of the political society. These will give the citizens the opportunity to live a dignified life and the opportunity to think about moral virtues and the meaning of life and will reduce immorality and vices in society.
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.
Public Law
Hasan Vakilyan; mohamad moghtader
Abstract
Obviously, in all jurisdictions it is required for the people to observe the laws and regulations; however, at the same time they need to have convincing reasons to obey laws and regulation. Seeking their different interests, people sometimes may break laws. However, sometimes people believe that there ...
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Obviously, in all jurisdictions it is required for the people to observe the laws and regulations; however, at the same time they need to have convincing reasons to obey laws and regulation. Seeking their different interests, people sometimes may break laws. However, sometimes people believe that there are morally justifiable reasons to break laws. As a matter of fact, the research question of this paper is as follow: what is the nature of reasons that required people to observe the laws and regulations? Generally, natural lawyers stress on the strong relationships between law and morality and they stress on moral (Not legal) reasons. Despite that, as it will be shown, natural lawyers (Specially modern ones) and positivists have similar justification regarding the observing laws and regulations, in that both of them recognizing legal reasons for observing laws and regulations and denying the necessity and Sufficiency of moral reasons.
Public Law
Ahmad Taghizadeh; Ahmad Habibnejhad
Abstract
Assignment of the multiple competencies to the "Speaker of the Legislature" in various laws and regulations, and the necessity for his presence in various councils and assemblies, make clear the necessity for his appointment. So, the main question in this article is, what title is applied to the head ...
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Assignment of the multiple competencies to the "Speaker of the Legislature" in various laws and regulations, and the necessity for his presence in various councils and assemblies, make clear the necessity for his appointment. So, the main question in this article is, what title is applied to the head of the legislature? In answer to this question, by using the analytical-descriptive method, it can be said that in the absence of external evidence and in terms of the different qualifications enumerated in different laws for the President of the Islamic Consultative Assembly as well as absurdity of this establishment, these powers are beyond the control of the Majlis and also, given the significant role of the Majlis in the legislative process compared to the role of the Guardian Council and the Expediency Council, it can be said that the title of the legislature is applicable to the "Speaker of the Parliament". If the relation of the head of the legislature with the parliament and its representatives is taken into account, then the Speaker of the parliament would be used and if his/her relation is compared with institutions and authorities outside the parliament, then the term Legislature would be proper to be applied.
Public Law
Morvarid Ahouri; Mohammad Hashemi; Maghsood Ranjbar
Abstract
The approach of liberal and Marxist thinkers, as the two dominant ideas in the twentieth century on freedom, shows their worldview on the issue of freedom and fundamental rights of individuals. The question is, which theories liberals and Marxists hold on the concept of freedom which was gained based ...
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The approach of liberal and Marxist thinkers, as the two dominant ideas in the twentieth century on freedom, shows their worldview on the issue of freedom and fundamental rights of individuals. The question is, which theories liberals and Marxists hold on the concept of freedom which was gained based on historical experience over the past century? Also, to what extent, are their views towards individual rights and freedoms of their citizens and recognition of these rights and freedoms in practice different from each other?! In Berlin's view, Liberals conception of freedom is negative as opposed to Marxists which is a positive conception. Having considered the historical experiences and Marxists and liberals’ views in the last century, it seems that what guarantees the free will and constitutional liberties of individuals is the negative conception of freedom while the positive conception of freedom could lead to denial of free will and ultimately tyranny. Therefore, the main purpose of this article is to study, compare and determine the status of freedom (especially the common interpretation such as negative freedom and positive freedom) in comparison with the principles and rules governing the two political ideas of liberalism and Marxism.
Public Law
Saeed Shahoseini; Ghodratollah Rahmani
Abstract
One of the terms mentioned in the Iranian Constitution is "Ijtihad". For most jurists, Ijtihad means extracting sharia law from the sources of sharia, which requires mastery of sciences such as Arabic literature, logic, theology, hadith and jurisprudence. But the question that this article seeks to answer ...
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One of the terms mentioned in the Iranian Constitution is "Ijtihad". For most jurists, Ijtihad means extracting sharia law from the sources of sharia, which requires mastery of sciences such as Arabic literature, logic, theology, hadith and jurisprudence. But the question that this article seeks to answer concerns Imam Khomeini’s viewpoint on this matter and its role in choosing successor leader. My basic assumption is that the concept of ijtihad in Imam Khomeini's thought has developed during the years before and after the revolution, and his late thoughts in this case, while having a significant distance from the famous theory, has a great impact in choosing successor leader. Using descriptive-analytical method, we examined the meaning and function of Ijtihad regarding the constitution as well as its definition and requirements in the works of five prominent jurists. Then, we analyzed this concept regarding Imam Khomeini's thought. Finally, we looked at his practice in choosing successor leader and the effects of his late thoughts on that.
Public Law
Seyed Shahabeddin Mostafavinejad; Kheirollah Parvin
Abstract
Corruption is the use of public interest for personal gain. One of the most important ways to deal with corruption is to consider the principle of transparency as one of the main pillars of good governance.Transparency makes all actions and activities visible and closes the ways for violations and the ...
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Corruption is the use of public interest for personal gain. One of the most important ways to deal with corruption is to consider the principle of transparency as one of the main pillars of good governance.Transparency makes all actions and activities visible and closes the ways for violations and the spread of corruption. The question is whether transparency in the Iranian legal system is achievable or not? In this research, through descriptive and analytical methods and use of library resources while considering the legal norms of Iran were used in order to achieve transparency and despite some shortcomings, there are sufficient resources from upstream documents to ordinary laws, and what can be stated as a challenge and a barrier to transparency is the non-compliance of laws and lack of proper supervision by executive bodies. It is relevant. To solve this problem, all executive bodies must take steps towards transparency while paying attention to the existing laws. In this regard, consolidation of employment laws and regulations based on meritocracy, strengthening transparency laws along with eliminating their shortcomings and paying attention to general policies of the government is necessary for transparency and elimination of corruption.
Public Law
Faeghe Chalabi; Seid Hossein Malakooti Hashtjin; Mohammad Reza Mojtehedi; Ayat Mulaee
Abstract
The constitution should be a symbol of flexibility in the face of social challenges. In most constitutions, it is possible to amend the constitution through a formal revision. The difficulty of the formal reform process has led constitutionalist democracies to believe that a formal revision of the constitution ...
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The constitution should be a symbol of flexibility in the face of social challenges. In most constitutions, it is possible to amend the constitution through a formal revision. The difficulty of the formal reform process has led constitutionalist democracies to believe that a formal revision of the constitution cannot be the only way to achieve the desired goal of meeting the constitution with the needs of society, parties, and people on the constitution in the constitutional law. In this respect, two approaches of originality and dynamism are noteworthy. The controversy between the originalists and the dynamic constitution suggests that in addition to the formal method, constitutions can be reviewed and changed informally. In this article, the concept and principles of the dynamic constitution as a new theory, survey the limits of living constitution interaction in the face of the originalist constitution, the relationship between the living constitution and the legitimacy of the political system, and its confrontation with the rule of law are examined. The main goal of this article is to provide the basis for further research and localization of the present theory by examining the dimensions and challenges of the forthcoming issue to address the shortcomings of the Iranian constitution in the face of the current challenges of the constitution.
Public Law
Fardin Moradkhani
Abstract
Constitutional law is one of the most important fields of legal knowledge and its close connection with political science has led thinkers in the other fields of humanities to discuss the concepts and principles of this knowledge. Max Weber, one of the most important thinkers of recent centuries, has ...
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Constitutional law is one of the most important fields of legal knowledge and its close connection with political science has led thinkers in the other fields of humanities to discuss the concepts and principles of this knowledge. Max Weber, one of the most important thinkers of recent centuries, has carefully reflected upon the knowledge of law, especially Constitutional law. He lived in a turbulent time and witnessed the rise of Germany as well as its decline. In the midst of World War I, Weber addressed Constitutional law issues and provided analyses in this regard and later played a vital role in drafting the Weimar Constitution. He was a supporter of the presidentialism and the extraordinary powers of the president, which were enshrined in the Weimar Constitution and later created many problems. This article aims to examine Weber's theory of Constitutional law and to explain his outlook and interpretation towards issues such as the president, parliament, and democracy
Public Law
Seyed Naser Soltani
Abstract
This research aims to indicate the roots of public law in the Constitutionalism in which the prerequisites for the citizens of the country to participate in public affairs as well as the basis for developing the concept of political participation were provided. This study examines the topic in the works ...
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This research aims to indicate the roots of public law in the Constitutionalism in which the prerequisites for the citizens of the country to participate in public affairs as well as the basis for developing the concept of political participation were provided. This study examines the topic in the works of one of the famous jurists of this era. The concept of political participation should be developed by restricting both claims and obstacles. First, it had to constitutionalize the independent monarchy that it considered the whole country as its absolute property, and then recognized an authority for the public in public affairs, which was previously under the authority of the jurists. Both of these obstacles were removed through the concept of political equality. It was for years that concepts were being prepared in the workshop of Constitutionalism to create equality of humankind. Even a concept like representation was the result and implication of the concept of political equality. Within concepts such as "common house", "thirty crores" and "public affairs", the notion of political equality of the people of the country was developed and with the help of such foundation, thinking about such concepts was made possible. The present paper indicates that the emergence of these concepts was a sign of a fundamental change in the basis of sovereignty and its transfer from the king to the people on the one hand and the establishment of a kind of the public authority on the other hand.
Public Law
Seyed Mojtaba Vaezi; Malihe Masoudi
Abstract
Since the state responsibility refers to the accountability of the state to individuals, its nature relies more than anything on the nature of the relationship between individuals and the state. Given the Rousseau’s relying upon modern subjectivity, this relationship has entered into a new phase ...
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Since the state responsibility refers to the accountability of the state to individuals, its nature relies more than anything on the nature of the relationship between individuals and the state. Given the Rousseau’s relying upon modern subjectivity, this relationship has entered into a new phase which is different from the former outlooks especially that of Hobbes. Adopting an analytical approach, this article deals with the question, "what does Rousseau's approach to the relationship between individuals and the state imply about the concept of state responsibility?" This essay concludes that due to Rousseau's perspective about the unity of state and individuals, basically there is no duality which holds one responsible against the other and the responsibility of states to individuals is equal to one’s responsibility toward itself.
Public Law
Mahdi Shahabi
Abstract
The history of the evolution of legal thought indicates the contentious process of the interaction between metaphysics and reality. Meanwhile, notions such as law and justice, and in general, natural law, being the criterion for evaluating justice in the legal structure, have a more complicated situation. ...
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The history of the evolution of legal thought indicates the contentious process of the interaction between metaphysics and reality. Meanwhile, notions such as law and justice, and in general, natural law, being the criterion for evaluating justice in the legal structure, have a more complicated situation. Petrazyski's idea on intuitive law should be considered as a new framework for the mentioned interaction; as modern natural law is based on the preeminence of metaphysical rule over reality, and classical natural law also seeks static metaphysics to provide the ground for its interaction with reality. Thus, they could not be admissible. Petrazycki endeavors to seek a dynamic metaphysics which he finds it in dynamic subjectivism. Individual intuition is another expression of this type of subjectivism which leads to the intuitive right and intuitive justice. However, one may ask whether this type of metaphysics be the foundation and even superior and evolutionary framework of law? In fact, Petraziski does not believe in such a foundation, and as a result, his metaphysical interaction with reality cannot be maintained in the framework of idealism.
