International Law
Seyed Qasem Zamani; Maryam Hosseinabadi
Abstract
IntroductionThe presence of Non-State Armed Groups (NSAGs) in conflicts with each other or against states has increasingly posed a threat to international peace and security in recent decades. In this respect, it is essential to examine the extent to which these groups adhere to the principles of international ...
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IntroductionThe presence of Non-State Armed Groups (NSAGs) in conflicts with each other or against states has increasingly posed a threat to international peace and security in recent decades. In this respect, it is essential to examine the extent to which these groups adhere to the principles of international humanitarian law (IHL)—a branch of international law that regulates both international and non-international armed conflicts. Equally important is understanding the theoretical foundations that underscore the necessity of NSAGs’ compliance with IHL, as their adherence or non-adherence to these primary rules impacts the application of secondary rules, which serve as guarantees for breaches of primary rules. For a long time after the United Nations was established on the ruins of the League of Nations, which had failed to prevent two world wars, international armed conflicts between states were viewed as primary threats to global peace and security. However, in recent decades, conflicts involving NSAGs—sometimes with substantial military capabilities—against each other or against states have emerged as significant threats to international peace and security. The increasing number of non-state armed conflicts, where NSAGs hold considerable power as parties to the conflict, presents new challenges in the field of international law. It is essential to address these issues, as legal frameworks must evolve to respond to contemporary societal developments and issues. A key question is whether IHL rules are binding on NSAGs, and if so, what theoretical foundations justify such adherence and what impact compliance (or lack thereof) has on these groups in armed conflicts. The present study aimed to address these questions by drawing on library and online sources, along with relevant international documents. The analysis focused on the NSAGs involved in non-international armed conflicts in Yemen. Literature ReviewThis research discussed the theoretical foundations of NSAGs’ obligations under IHL and the necessity and implications of recognizing NSAGs’ adherence to IHL, focusing on the non-international armed conflict in Yemen. Several studies have dealt with these issues. For example, Ahlborn (2011) explored the rules governing international organizations and the law of international responsibility. Similarly, Clapham (2010) delved into the rights and responsibilities of non-state armed actors, examining the legal complexities and issues. Fazaeli (2016) focused on the context of Yemen, analyzing military intervention there through the lens of international law. Karamzadeh and Moradian (2015) also approached the topic by investigating the principles guiding non-state groups’ compliance with humanitarian laws. Their research contrasts Islamic and international humanitarian perspectives, using Iraq and Syria as case studies. Finally, Qureshi (2019) examined the applicability of international humanitarian law to non-state actors. Materials and MethodsThe present study used a descriptive–analytical approach and international sources and doctrines to clarify theories regarding the adherence of NSAGs to IHL and its impact on secondary rules, with a particular focus on the non-international armed conflict in Yemen. Results and DiscussionThe analysis of normative rules reveal that NSAGs are not considered as unknown entities in the field of international law. Instead, legal issues addressing these groups are becoming more regularized due to their diversity, importance, and the wide-ranging roles they play across various dimensions within the international community. In this context, it can be argued that NSAGs involved in non-international armed conflicts possess, to some extent, international legal personality and are subject to specific obligations and responsibilities under international law. It seems that international law is not yet fully developed, but it possesses a dynamic and flexible nature. This adaptability allows for a focus on advancing progressive theories within international law. Therefore, clarifying perspectives on the necessity for NSAGs to observe humanitarian rules—and the impact of this adherence on secondary rules—plays a crucial role in enhancing the theoretical understanding of international law. ConclusionAmong the various theories in this field, the theory advocating for the adherence of NSAGs to international law appears the most realistic. This is largely due to its emphasis on the organizational structure of these groups and control over territory. Applying this theory may also pave the way for addressing the issue of international responsibility of NSAGs in non-international armed conflicts.
Public Law
Abbasali Kadkhodaei; Mahdiyeh Firoozi
Abstract
IntroductionLaw has been a central concept throughout different periods of pre-constitutional reforms, reflecting the different stages of Iranian constitutionalism. The evolution of this concept illustrates the development of reformist ideas in Iran, highlighting its significance. The initial phase ...
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IntroductionLaw has been a central concept throughout different periods of pre-constitutional reforms, reflecting the different stages of Iranian constitutionalism. The evolution of this concept illustrates the development of reformist ideas in Iran, highlighting its significance. The initial phase of Iran’s legal reforms occurred during the Naseri period, influenced by the reforms in Russia and the Ottoman Empire. The first efforts by Iranians aimed to limit autocratic and unlimited power. In the early stages of reform, the concept of order emerged as a criterion for assessing the state of society, shaping Iranians’ understanding of the concept of law. The current study aimed to examine the relationship between the two concepts of law and order, focusing on the views of Mirza Malkam Khan Nazim al-Dawla.Literature ReviewMany studies have taken political and historical perspectives to analyze the events leading up to the constitutional revolution in Iran and the associated thinkers. However, legal researchers have paid less attention to how Iranians during the Naseri period initially understood the concept of law, an understanding that was influenced by their desire for order.Materials and MethodsThe present study employed a descriptive–analytical approach. The methods of library research and note-taking were used to collect data from historical sources.Results and DiscussionAny reform or revolution that occurs in different regions is influenced by its specific requirements. The traditions of each society stem from the ideas of a nation developed over many years of social existence, and their impact on changes and revolutions in society is undeniable. Iran’s constitutional movement is no exception. A notable aspect of Iran’s political situation prior to the constitutional revolution was the lack of order that could organize relationships. The absence of order, which reached its peak during the Qajar era, significantly influenced political relations. The lack of order can be seen as the reason contributing to the centrality of the concept of law in all developments during the Qajar era. The evolution of the concept of law during the Qajar era illustrates how Iranian reformist thought transitioned from the era of Tanzimat to parliamentary constitutionalism. Analyzing the writings from this period reveals that during the initial reforms of the Naseri period, the concept of order took on significant meaning and became a standard for evaluating Iran’s situation. At that time, Iran was often described as lacking order compared to other countries, with tyranny identified as its most prominent manifestation. Malkam Khan was the first pre-constitutional thinker to try to develop a specific understanding of the concept of law. His works suggest that the defining feature of the concept of law during the pre-constitutional era was its focus on curbing tyranny and absolute power—seen as the primary causes of disorder—by limiting the power of governors to the law. This law was not envisioned as opposing monarchy per se, but rather as opposing tyranny. Therefore, if a monarchy was orderly, it could coexist with this conception of law. In such a context, law was not a democratic principle aimed at overthrowing the monarchy; rather, it was very centralist. Through the establishment of new institutions, it sought to transform traditional governance into one characterized by order. In addition, the concept of law was understood in a pragmatic and objective manner, akin to substantive law, with little emphasis on the cultural and social foundations or traditional origins of laws. This led to a strong inclination toward imitating the laws of other countries, and any consideration of the relationship between law and Sharia was regarded as irrelevant.ConclusionWhat stands out in the works of the Qajar thinkers is the association between the concepts of law and order, with each term frequently mentioned in relation to the other. This relationship influenced the interpretation of law as a system building concept for establishing order in the chaotic situation of Iran. The most critical aspect of the lack of order in Iranian society was the presence of absolute and arbitrary power, which operated without any restrictions. Consequently, the concept of law emerged as an alternative to tyranny. Malkam Khan, a prominent intellectual of the pre-constitutional period, explored this idea in his works. Although this conception of law ultimately proved unsuccessful in politics and faced serious criticisms of its theoretical foundations, it marked an initial and significant shift from the tyrannical governance to the legal governance.
Public Law
Majid Banaei Oskooei; Mohammad javad Ghorbani
Abstract
IntroductionToday, insurance coverage is crucial in commercial and economic activities; however, like many economic functions, insurance requires significant financial resources. Generally, there are two main ways to provide these resources: proprietary and non-proprietary methods. Non-proprietary funding ...
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IntroductionToday, insurance coverage is crucial in commercial and economic activities; however, like many economic functions, insurance requires significant financial resources. Generally, there are two main ways to provide these resources: proprietary and non-proprietary methods. Non-proprietary funding can come in various forms, such as loans, debt from credit purchases, pre-received amounts, or unpaid taxes. Typically, lenders assess the applicant’s status and take appropriate guarantees at the time of credit allocation. However, insurance companies operate differently because their resources are derived from two primary sources: proprietary contributions (capital and equity) and debts (both current and non-current). Most of these liabilities stem from unfulfilled obligations to insurers, known as technical reserves, which are accumulated through the sale of insurance policies. As a result, policyholders and insurance beneficiaries often worry about the insurer’s ability to meet their obligations for several reasons. First, the exact amount of the insurer’s obligation is often unknown, making it difficult to estimate potential future losses or whether these losses will actually occur. Second, due to various factors (e.g., the uncertainty of future damages), it is challenging to obtain adequate guarantees from the insurer. Third, there is often no direct correlation between the insurance premium and potential losses. Fourth, acceptance of extraordinary insurance obligations usually represents only a small portion of the insurer’s overall resources. It should be noted that managers and insurers exercise control over resources that belong to others, yet they do not provide guarantees for these resources. Meanwhile, creditors have no role in the company’s management. These factors, although essential to the insurance industry, underscore the need for regulations that protect the rights of all stakeholders and prevent abuse or negligence by the owners and managers of insurance companies. Consequently, in most countries, these services can only be offered by special institutions and commercial companies that operate under strict regulatory frameworks. It is particularly important to establish performance guarantees and specific mechanisms to fulfill obligations, especially long-term commitments, because many businesses depend on insurance coverage to support their operations. When insurers fulfill their responsibilities effectively, they provide a guarantee for stable economic and financial activities. At the same time, these regulatory requirements should not undermine the principles of corporate governance within the industry or overly restrict the decision-making powers of insurance company managers. This is especially critical in the context of privatization and reduced government involvement, which have made the regulations of corporate governance even more relevant. Such regulatory requirements, together with the development-oriented approach in this relatively young industry, highlight the importance of establishing special regulations to govern relationships among insurance stakeholders, particularly in the areas of company operations and contracts. Literature ReviewMost research in the field of insurance has focused primarily on insurance contracts, while studies on insurance companies themselves are limited and tend to concentrate on corporate governance rules. However, the structure of insurance companies and the specific regulations that govern them as providers of insurance services are just as important as the contracts they issue. Materials and MethodsThe present study used a descriptive–analytical approach and a library research method to examine and explain the specific regulations governing insurance companies. Results and DiscussionWell-designed insurance regulations, alongside other economic factors, can help alleviate the concerns of stakeholders—especially merchants involved in commercial transactions, which inherently carry risk. This can, in turn, foster business development and economic growth. In Iran’s legal system, insurance regulation was initially limited and sporadic until the 1970s. A key turning point came with the Establishment Act of Bimeh Markazi Iran/Central Insurance of IR Iran & Insurance Operations in 1971. This law’s significance lies not just in its 73 articles but in its establishment of a quasi-legislative body (i.e., the Supreme Council of Insurance), which has since issued numerous approvals, particularly concerning the establishment of insurance companies. In addition to general commercial laws that apply to insurance companies, recognized as one form of joint-stock company, two main regulatory streams govern insurance companies. On one side are the special legislative approvals passed by the parliament specific to the insurance sector; on the other, over a hundred resolutions by the Supreme Council of Insurance, a substantial portion of which focus on the establishment and structure of insurance companies. These regulations have brought significant changes to the conditions for founding and organizing such companies, though they have, in some cases, led to disputes. A separate study is needed to examining the legal status and scope of the approvals of the Supreme Council of Insurance. The present research focused on the specific regulations governing insurance institutions, addressing the challenges and ambiguities that arise during their establishment and formation. ConclusionTo establish an insurance company, it is essential to meet the general requirements stipulated in the commercial law, as well as specific conditions. The latter include a certain quorum of founders, the minimum amount of capital, the approval of the provisions in the model statutes, and the verification of the special qualifications of the managers at first. Additionally, specific conditions for the insurance agency must be addressed.
Public Law
Atefeh Moradi Eslami; Mohammad Javad Javid
Abstract
Introduction While the principles of certainty and legal security are foundational to modern legislation, the transition to the digital age and postmodernism has necessitated the adoption of principles such as uncertainty, innovation, and flexibility in some international legal documents due to ...
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Introduction While the principles of certainty and legal security are foundational to modern legislation, the transition to the digital age and postmodernism has necessitated the adoption of principles such as uncertainty, innovation, and flexibility in some international legal documents due to the rapid socio-economic developments driven by technological progress. The assemblage theory, informed by the philosophies of Deleuze, Guattari, and DeLanda, offers a dynamic understanding of the actions and network interactions among social actors. This framework facilitates a deeper understanding of institutional dynamics and highlights the necessity of adapting legal dynamics to specific contexts. Literature ReviewRhizome thinking, a concept developed by Gilles Deleuze, offers a critical perspective on the tradition of Western philosophy. Deleuze critiques the tree-like, vertical, and prescriptive structure of thought that is rooted in the concept of being, advocating instead for a horizontal, networked, and becoming structure as the foundation for thinking and knowledge. He employs the metaphor of the rhizome to illustrate this alternative mode of thought. Manuel DeLanda offers an alternative perspective that builds upon and modifies Deleuze and Guattari’s assemblage theory. From DeLanda’s viewpoint, entities are collections that increase in scale and complexity as components are added. He asserts that sets are the wholes whose characteristics emerge from the interactions between their parts. Given the existing literature, the assemblage theory has been applied in a limited way to explore the requirements of modern society and the social changes that encompass the civilization process in the contemporary societies of the 20th-century. Assemblage thinking has emerged at the forefront of a paradigm shift, viewing space and agency as the product of connections between humans and non-humans that create unstable wholes. This shift provides new avenues for rethinking the relationships between power, politics, and space from a more processual and socio-material perspective. In recent years, an increasing number of researchers have begun to view the state as a collection of heterogeneous elements, reconstructing the socio-material foundations of its functioning. Geographers, in particular, tend to focus on examining the spatial dimensions of state power. It appears that jurists are among the last groups of scholars to engage with the phenomenon of post-modernism while continuing to adhere to the principles of modern law. Materials and MethodsThe present study relied on a descriptive–analytical method to examine the feasibility of understanding institutional dynamics in the rule of law process, focusing on the epistemology and sociology of the assemblage theory as articulated by three key figures of this school of thought: Gilles Deleuze, Félix Guattari, and Manuel DeLanda. Results and DiscussionAccording to assemblage theory, policymaking is conceptualized within a social-material framework known as assemblage. In this approach, process and non-linearity serve as the main forms of policy development. Various actors—including local residents, interest groups, local institutions and authorities, the media, national governments, and sometimes international agencies—contribute to the formulation of policies and laws. The development of policy processes does not follow a linear path; it is not simply a matter of information flowing down the hierarchy from policymakers to citizens. Moreover, it does not consist of a linear sequence of activities over time, such as moving from the formulation of agenda to the approval and implementation of the law. In this sense, politics is not viewed merely as policymaking or as doing politics; rather, it is understood as the occurrence of politics within a multi-level, heterogeneous complex network. The network comprises a set of different non-linear processes, including different agencies and motives. Consequently, this approach contrasts sharply with traditional models of policymaking and legislation, defining itself as fully participatory.During the transition to the digital age, the rule of law has faced challenges due to the rapid pace of technological advancement, leading to philosophical and procedural revisions. Consequently, the law, which was once considered the foundation of political authority, is undergoing criticism and transformation in response to the emergence of new political actors and shifting rules of the game. Critics of innovation-related harms often advocate for risk-based regulation. Many scholars in law and technology agree that fostering innovation requires a gradual, reflexive, and participatory regulatory approach that incorporates rules from both the public and private sectors. However, due to the uncertainties surrounding innovation policy, some argue that the public sector must fundamentally shift its orientation toward adaptation, co-evolution, agility, and improvisation, resulting in policy recommendations that governments often find contentious. The philosophy of public law must evolve alongside the needs of governance to provide a foundation that aligns with these developments, ensuring that the public interest is not sacrificed to the rapid pace of change or the trial-and-error approaches of policymakers. In this context, the French theory of assemblage, as a postmodern school of thought, has elucidated the interaction between formal and informal institutions in society through a deconstructive approach. Based on the work of Deleuze, Guattari, and DeLanda, the assemblage theory offers a dynamic understanding of the roles and network interactions of social actors, providing a framework for understanding institutional dynamics. ConclusionBy identifying the creative interactions between social institutions, the assemblage theory paves the way for a dynamic interpretation of emerging legal situations and offers a means to overcome the institutional inertia present in legal traditions—the tradition that inherently resists change and often fails to respond timely and appropriately to institutional developments. Updating the legal doctrine to align with contemporary considerations of citizenship, good morals, and public order can yield more precise responses to emerging issues. Moreover, this proactive approach can help prevent creative compliance and the circumvention of the rule of law under the pretext of urgency and emergency situations.
Public Law
Mohammad Mahdifar; Faezeh Rafatnejad
Abstract
IntroductionThe freedom of assembly and procession is a fundamental civil and political right recognized in numerous human rights documents and legal systems, including that of the Islamic Republic of Iran (IRI). The question arises as to what specific stance the IRI’s constitutional law takes ...
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IntroductionThe freedom of assembly and procession is a fundamental civil and political right recognized in numerous human rights documents and legal systems, including that of the Islamic Republic of Iran (IRI). The question arises as to what specific stance the IRI’s constitutional law takes on this kind of freedom. In this respect, the current study aimed to clarify the relationship between Principle 27 of the Constitution and other principles. Using a jurisprudential and legal analysis, the research sought to examine the position of Principle 27 within the broader context of the IRI’s Constitution. The analysis was to evaluate the right to assembly and procession in the Iranian legal system, offering insights into the ideal legal standard for freedom of assembly and procession. Literature ReviewThe Persian legal literature provides valuable but limited research on this topic, highlighting a notable gap in analytical approaches to examining the issue. To address this gap, the present study employed an analytical framework grounded in jurisprudential and legal analysis. Materials and MethodsAs a qualitative inquiry, the present study used a library research method to collect the data. Moreover, a jurisprudential and legal analysis was conducted to analyze the data and examine the position of Principle 27 within Iran’s constitutional law. Results and DiscussionThe findings revealed several key insights. First, Principle 27 of the Constitution of the IRI, grounded in religious teachings and aligned with international and regional human rights documents, it recognizes the right to freedom of assembly and procession with minimal restrictions. Second, understanding the absolute right embedded in Principle 27 within Iran’s broader legal framework requires a holistic view of the Constitution and an assessment of how it relates to other constitutional principles. The analysis of this relevance revealed the universality of the right to freedom of assembly for all citizens, showing that it extends beyond the two specific restrictions stated in Principle 27. Finally, a review of domestic legal documents and executive procedures revealed contradictions with the theoretical field of constitutional rights in Iran. These legal frameworks, contrary to the constitutional perspective, adopt a permit-based approach that is notably stricter than similar systems in other permit-based legal systems. Moreover, the study advanced the argument that the lack of legislation on the part of the Islamic Consultative Assembly (the Iranian Parliament)—concerning the right of all citizens to hold assemblies and processions—does not render such gatherings illegal. If an assembly or procession does not conflict with the governing laws within the legal framework of the IRI, it is considered legal under Principle 27 of the Constitution. ConclusionA holistic view of the Constitution requires that the right to freedom of assembly and procession outlined in Principle 27 be considered in conjunction with other constitutional principles. The application of Principle 27, which is subject to two specified restrictions, falls under the jurisdiction of ordinary law tasked with determining issues such as the implementation procedures, conceptual scope, mechanisms for ensuring compliance, and guarantees against violations. In this context, valuable insights can be gained from historical interpretations, such as an analysis of the debates among members of the Assembly of Experts for the Constitution, to reveal the intent behind drafting Principle 27 as well as the historical, political, and social contexts at the time. Additionally, early experiences and real-world implications of either overly broad or overly restrictive interpretations are crucial for establishing the right to assembly and procession. These insights can inform the principles and conditions necessary for relevant legislation that can effectively embody this fundamental right, helping to institutionalize, stabilize, and strengthen it in future legal procedures.There are several important points to mention. First, the freedom of assembly and procession recognized in the Constitution is incompatible with the permit system. On the one hand, it is essential to uphold the universality of this freedom, which should not require obtaining permission for its exercise. On the other hand, the reluctance of the members of the Assembly of Experts for the Constitution to specify restrictions that would put the fate of assemblies in the hands of the government suggests that it is not feasible to orient Principle 27 of the Constitution toward a permit-based approach through ordinary law. Second, the right to assemble should not be restricted to a specific group. Principle 27 recognizes the right to assembly as a civil and political right for all citizens. Limiting this right to certain groups, such as legal political parties, contradicts the meaning and rationale of this principle outlined in the Constitution. Third, there should be maximum reservations regarding the prohibition of gatherings. In cases where a gathering or procession conflicts with restrictions such as public order, the legislator should refrain from declaring a ban or dispersing the gathering as the first response; this should only be done as the last resort. It is important to emphasize that the freedom of assembly must be protected to the greatest extent possible. Any restrictions should be imposed only to the extent necessary to manage the situation, rather than resorting to prohibitions as an immediate response. Fourth, clarity in the text of the law is essential. This principle, which generally governs the drafting of legislation, should also apply to laws related to Principle 27. Specifically, any interpretable limitations—such as the cases causing disturbances to the foundations of Islam—should be clearly defined in the law. Failing to do so will undoubtedly create problems for citizens in exercising their rights and may hinder the administrative police and judicial officials in fulfilling their duties. By precisely specifying all processes and avoiding vague language, the rights of all parties can be effectively protected from violations.
Public Law
Fardin Moradkhani
Abstract
IntroductionScholars have offered various interpretations of the constitution as one of the most important concepts in law. Understanding these perspectives can contribute to a better understanding of the constitution. One such interpretation is the legal conception, which considers the constitution ...
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IntroductionScholars have offered various interpretations of the constitution as one of the most important concepts in law. Understanding these perspectives can contribute to a better understanding of the constitution. One such interpretation is the legal conception, which considers the constitution as a text and the supreme document within the legal system, safeguarded by political or judicial authorities. In the legal conception, the role of the guardian of the constitution is especially significant, with the judiciary branch holding primary importance among the branches of power. In contrast, the political conception of the constitution sees it as a contested arena for political actors, aiming to unshackle it from the monopoly of judges and jurists. This perspective tends to emphasize not only the text of the constitution but also the existing reality and political climate. Literature ReviewThere appears to be limited research in Persian that explores this concept in depth. However, the Persian translation of Martin Loughlin’s Public Law and Political Theory (1992) includes a brief discussion of Griffith and his association with the school of functionalism. Additionally, some relevant aspects of this discussion are covered in Law is Politics, a volume of articles compiled and translated into Persian by Habibollah Fazeli (2021). Materials and MethodsThe current study used the descriptive–analytical method to explore the meaning of the political constitution and examine the transformations it has undergone from its inception to the present day. Results and DiscussionThe study shed light on some of the foundational elements underlying the concept of the political constitution, including republicanism, conservatism, the leftist tradition, functionalism, and Dicey’s theories. It also examined why the concept first emerged in England. Given that the political constitution, like other concepts, is subject to change, the article finally explored its future trajectory and addressed criticisms. Every concept has a history and evolves over time through political, social, and economic developments—and the political constitution is no exception. This concept was first introduced by John Griffith, who argued for a strong link between politics and law, with the constitution as the focal point connecting these fields. Underscoring the significance of the political constitution in his writings, Griffith believed that political decisions should rest with political actors. According to Griffith, reducing political lawsuits to legal judgments actually shifts political decision-making from politicians to judges. Concerned with protecting the English legal system, Griffith opposed certain legal reforms proposed by some jurists, viewing them as potentially rendering the legal system meaningless. Although he outlined the main principles of the political constitution, later generations modified this conception in response to critiques. Figures like Richard Bellamy and Adam Tomkins sought to imbue the concept with a normative aspect, while later thinkers like Martin Loughlin redefined the political within the concept. The present research discussed these key developments in the concept of the political constitution, and delved into the foundational issues, such as its origin.ConclusionThe political constitution encourages moving beyond the text of the constitution to consider the political reality and allow participation from all actors in the political arena. Although first introduced in England, this concept has also influenced the tradition in countries with written constitutions, prompting constitutional theorists to acknowledge factors beyond the text itself and to recognize the profound connection between law and politics. An accurate understanding of the constitution is incomplete without considering real-world political contexts. This discussion holds significant relevance for Iran’s constitutional law, which has been relatively limited theoretically. Greater engagement with constitutional law theories can expand the conception of the constitution to acknowledge new perspectives and approaches. The topics recently raised in Iran’s constitutional law (e.g., unwritten constitutional principles, constitutional procedures, and constitutional customs) need a theoretical foundation, and the concept of the political constitution provides a valuable basis for these discussions. Furthermore, exploring the connection between law and political science provides a critical theoretical framework that can support these ongoing discussions.
Public Law
Farhang FaghihLarijani; Elaheh Amani Vamarzani
Abstract
IntroductionUrban agriculture is closely related to both natural and urban environments. Economically, socially, and environmentally, urban agriculture serves as a unique component of the city, with its regulation depending on legal, economic, social, and cultural factors. In the legal history of Iran, ...
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IntroductionUrban agriculture is closely related to both natural and urban environments. Economically, socially, and environmentally, urban agriculture serves as a unique component of the city, with its regulation depending on legal, economic, social, and cultural factors. In the legal history of Iran, urban laws and regulations have recognized agricultural activities; however, due to the predominance of rural agriculture and a traditional understanding of the field, urban agriculture has not been viewed as a critical area of concern and has not been addressed independently within the legal system. According to Article 4 of the Law on Definitions and Regulations of Administrative Divisions, agriculture is classified as an urban profession within the definition of city. Nevertheless, the legislators have not enacted a comprehensive law specifically for urban agriculture, nor have they explicitly included it in the legal definitions of urban lands, and zones, or other relevant urban laws. Cities, characterized by legal limits and specific geographical boundaries, include agriculture among various activities. Despite the differences in the fabric of cities, there exists a legal basis and background necessary for the formation of urban agriculture. In certain cases, such as holding agricultural exhibitions in cities, there have been direct references to promote agricultural activities in urban settings. However, over time, as cities have evolved and diversified, other land uses have become more pronounced. The economic inefficiency of agricultural activities compared to manufacturing, industrial, and construction sectors has contributed to a decline in urban agriculture. Despite the adverse development processes and significant destruction of urban agricultural foundations, agricultural uses have not entirely vanished from contemporary cities. An independent legal system, supported by specialized administrative institutions and laws, exists to maintain, strengthen, and develop agriculture in areas outside cities, particularly in rural regions. However, whether such a framework exists within cities remains uncertain. The present study aimed to address whether an independent legal system is in place within urban areas to recognize, maintain, and develop urban agriculture. The study hypothesized that one of the primary challenges in this field is the lack of compatibility and coordination between existing laws and the requirements for maintaining and developing urban agriculture. Additionally, the lack of a dedicated legal system to support and develop urban agriculture contributes to these issues. Furthermore, economic incentives, the lack of transparency, and the multitude of authorities have accelerated the degradation of agricultural land and hindered the development of urban agriculture. Literature ReviewAlthough several studies have been conducted in other disciplines concerned with urban agriculture, the legal aspects of urban agriculture have largely been overlooked in the legal literature in Iran, particularly from a public law perspective. There is thus a significant gap in the legal literature on urban agriculture.3. Materials and MethodsThe present study relied on a descriptive–analytical approach to address the challenges surrounding the formation and development of urban agriculture. The data was collected through a library research method, which involved reviewing laws, regulations, and relevant interdisciplinary studies in the field of urban agriculture.4. Results and DiscussionThe findings revealed several legal challenges to the formation and development of urban agriculture, including the multiplicity of laws and regulations, the multitude of administrative authorities, the unfavorable punitive or criminal approach to preserving agriculture, the shortcomings in urban development plans, and an overly permissive administrative mechanism for changing the use of urban agriculture. In addition, the lack of reliance on sustainable income sources in urban management, the practice of generating revenue by repurposing agricultural land, and the economic and livelihood challenges faced by citizens were found as significant financial and economic obstacles.5. ConclusionIn Iran, while urban laws and regulations emphasize the importance of preserving agricultural and garden uses within cities, the fragmented nature of the legal system has led to significant legal and economic challenges that hinder its efficiency. To improve the current situation, it is essential to draft and enact coherent laws and regulations for the preservation and development of urban agriculture, establish a single authoritative body responsible for urban agriculture in the urban zone, and implement stricter legal restrictions on the conversion of agricultural land use. In addition, providing legal incentives (e.g., tax exemptions and fee exemptions), offering financial support, and giving technical advisory services can help promote the development of urban agriculture.
Public Law
Mohammad Reza Vijeh
Abstract
IntroductionIn order to make a decision, the administrative authority must act within the legal framework governing that decision. However, administrative acts are always susceptible to various issues, which judicial review seeks to address. These issues include incompetence, substantive violations ...
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IntroductionIn order to make a decision, the administrative authority must act within the legal framework governing that decision. However, administrative acts are always susceptible to various issues, which judicial review seeks to address. These issues include incompetence, substantive violations of the law, procedural violations of the law (such as failure to adhere to necessary procedures), transgression of the limits of authority, and abuse of authority within legal systems. Among these violations, abuse of authority is undoubtedly the most challenging. Its form and nature complicate verification, so the judicial precedent of the Court of Administrative Justice is less inclined to verify or annul administrative acts based on allegations of abuse of authority. In this respect, the present research aimed to determine whether a clear concept of abuse of authority exists in modern administrative law and to define the criteria associated with it. Literature ReviewThe literature on comparative administrative law and several articles have addressed the topic primarily from a descriptive perspective regarding this institution in various legal systems. In a rather different approach, the present study aimed to examine and critique similar concepts based on a specific understanding of abuse of authority. Furthermore, the study reviewed the relevant concepts to extract criteria for addressing abuse of authority and develop a unique theory that may differ from the corresponding concepts in private law and the concept of abuse of authority in other legal systems. This approach highlights the innovative aspect of the present inquiry. Materials and MethodsThe present study used a descriptive–analytical approach and library resources to collect and analyze the data. Results and DiscussionAn examination of the development of abuse of authority in legal doctrines and judicial precedents suggests that such a clear concept may not exist. Instead, the findings revealed that the concept of abuse of authority is often analyzed in relation to other concepts, contributing to its ambiguity. The results helped propose a comprehensive theory regarding the abuse of authority by administrative bodies, including its indicators and criteria. The first criterion is the discretionary power of the administrative authority. Abuse is particularly relevant in the context of discretionary power, as it is the administrative authority that must determine whether an administrative act serves the public interest—the decision in which the potential for abuse arises. The question also arises as to whether the malicious intent on the part of the administrative authority is a necessary condition for establishing abuse of authority. While the existence of general malice is typically assumed in cases of abuse of authority, the abuse of administrative position requires evidence of both general and specific malice, as necessary conditions to be proven. Furthermore, if the administrative authority seeks to realize interests other than public interests with malicious intent, should there also be an intention to harm public interests? There is inherently an intent to harm, as pursuing benefits that do not align with the public interest is always associated with the intention to undermine the public good. ConclusionAbuse of authority is a complex and often vague concept within administrative law. To reach a full understanding of the concept, it is insufficient to rely solely on the existing components and criteria that define abuse of authority. A comprehensive explanation must also consider closely related concepts, such as the abuse of rights in Islamic jurisprudence and Iranian private law, as well as principles like reasonableness, legality, fairness, and procedural propriety. This includes analyzing situations where the administrative authority cites relevant versus irrelevant considerations, as well as instances of deviation in the exercise of authority and substantive errors.By drawing on similar concepts from civil law and other legal systems, we can develop a robust theory that aligns with the indicators of modern public law. Moreover, it is important to examine the relationship between this theory and issues such as occupational abuse, along with related concepts like administrative aims and causes, while clearly delineating their distinctions. The foundational elements of this theory of abuse of authority appear to be the existence of administrative authority, malice, and the intent to harm. Notably, all these elements revolve around the concept of public interest- which serves as the cornerstone of modern administrative law-diverging from their traditional meanings. Consequently, it is feasible to formulate a comprehensive theory that facilitates the recognition of abuse of authority in various aspects of administrative acts and positions. The proposed theory can also provide the necessary enforcement guarantees to address instances of abuse.
Public Law
Badie Fathi
Abstract
IntroductionThe rule of prior referral of cases in Iran is a common principle in procedural law applicable to civil, administrative, and criminal procedures. Grounded in the principles of celerity and good administration of justice, the rule of prior referral of cases states that if there is a connection ...
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IntroductionThe rule of prior referral of cases in Iran is a common principle in procedural law applicable to civil, administrative, and criminal procedures. Grounded in the principles of celerity and good administration of justice, the rule of prior referral of cases states that if there is a connection between cases being heard by two or more separate courts— such that it serves the interests of justice to investigate and adjudicate the case together—the second court must relinquish jurisdiction and refer the case to the first court or branch. If the same dispute is pending before two equally competent courts of the same level, the second court must also relinquish jurisdiction in favor of the other court if one of the parties requests it. Otherwise, the second court may do so ex officio. In French civil and administrative procedures, related cases are not necessarily sent to the primary branch but may be referred to one of the two branches or jurisdictions at the discretion of the decision-making authority. The present study aimed to address several key questions: What is the basis for the prior referral of cases in procedural law? How and when did this concept emerge in Iranian procedural law? What are the differences among civil, administrative, and criminal procedures in this context? Additionally, how does this rule apply when cases fall within a single jurisdiction or across two? The research also explored the differences between Iranian and French law regarding this rule, as well as any exceptions that may apply. Literature ReviewIt seems there is no significant research on the rule of prior referral in Iran and France. However, procedural law texts contain discussions on exceptions of lis pendens and connexity. Moreover, in a Persian article titled “The Effect of the Relationship of Actions in Civil Trials”, Hassan-Zadeh (2015) addresses related disputes. Materials and MethodsThe present study used a descriptive–analytical approach and a library research method. Results and Discussion The rule of prior referral of cases in Iran’s procedural law was established by judges before being incorporated into legal texts. Iran’s Civil Procedure Code adopted in 2000 refers to the rule of prior referral of cases only in Article 227. There are differing opinions within the legal doctrine. However, Article 89 of the Civil Procedure Code and Article 13 of the 2013 Family Protection Act outline the procedures for joining the cases. Concerning the administrative procedure, Article 51 of the 2011 Law of Administrative Court of Justice (with the amendments introduced in 2023) incorporates the rule of prior referral as a principle for joining related lawsuits. The criminal procedure, due to its distinct nature, takes a different approach to joining cases, with the rule of prior referral applied only in limited circumstances. In the French procedural law of 1975, the rule of prior referral is applied specifically in the exception of lis pendens (Article 100) and the exception of connexity, where the court president refers related cases to one of the branches based on specific circumstances and conditions. This can be referred to as the rule of referral appropriateness. In the French Civil Procedure Code, when there are two related cases in different jurisdictions, the decision made by the jurisdiction that declines to hear the case first is binding on the other jurisdiction. If this decision is appealed, the appellate court may transfer the related cases to any jurisdiction it considers appropriate for joint investigation and adjudication. If the exception of lis pendens arises, the jurisdiction will be selected based on the rule of prior referral of cases. In contrast, Iran’s civil and administrative procedure laws do not mention the transfer of related cases from the initial court to the appellate court. Additionally, the civil and administrative procedure laws do not address the authority of the appellate court to refer related cases without regard to the rule of prior referral. The legal doctrines have differing opinions in this respect. In the criminal procedure, the application of the rule of prior referral of cases has different provisions compared to civil and administrative procedures. Moreover, the rules governing the application of the rule of prior referral also differ significantly in the criminal procedures of Iran and France. ConclusionAccording to the findings, that the application of the rule of prior referral in Iranian law is more effective than the rule of referral appropriateness, particularly when considering the circumstances surrounding the cases and the principles of functionality and speed.
