Public Law
Vali Rostami; Sajad Karimi Pashaki
Abstract
Introduction
As inferred from the principles of the Iranian Constitution, the general board of the Administrative Court of Justice (ACJ) serves as an authority for addressing claims brought by natural and legal persons against government regulations and systems. In this line, the legislator enacted ...
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Introduction
As inferred from the principles of the Iranian Constitution, the general board of the Administrative Court of Justice (ACJ) serves as an authority for addressing claims brought by natural and legal persons against government regulations and systems. In this line, the legislator enacted procedural rules governing the ACJ in three stages in 1981, 2006, and 2013. These regulations established both specialized boards and the general board of the ACJ, primarily focusing on procedures related to cancellation requests—one of the key responsibilities of these committees.
With the 2023 amendment of certain provisions of the law governing the ACJ, a new legal framework was introduced that grants credibility to non-cancellation rulings issued by both the specialized boards and the general board. This was achieved through Article 93 of the Law on the Administrative Court of Justice, which also mandates the publication of such rulings in the official newspaper.
Adopting a descriptive–analytical approach, the present article sought to answer the following questions: What is the legal status and effect of non-cancellation rulings issued by the general board and specialized boards of the ACJ? Moreover, can such rulings be interpreted as affirming the validity and influence of the contested regulations?
2. Literature Review
The amendment to the Law on Organizations and Procedures of the Administrative Court of Justice was introduced only recently, and there are few studies on the subject. For example, Motahari et al. (2022) examined the performance of the specialized boards within the ACJ, including non-cancellation rulings. Moreover, the Persian-language book Jurisdiction and Procedure of the Administrative Court of Justice (Molabeigi & Mohammadi-Ahmadabadi, 2023) explore the validity and impact of non-cancellation rulings issued by the general board and specialized boards. These discussions reference the amended Article 93 of the Law of the Administrative Court of Justice, which is analyzed and critically examined in this article.
3. Materials and Methods
As an applied research, the present study employed a descriptive–analytical method to analyze the data collected through library research, including references to academic and personal libraries, legal research centers, and various sources such as books, articles, journals, and websites.
4. Results and Discussion
In amending the Law on Organizations and Procedures of the Administrative Court of Justice, the legislator introduced a new rule while upholding the validity of non-cancellation rulings under Article 93 of the 2023 law. These rulings, issued by the general board and specialized boards before judicial review, are now published in the official newspaper as per Note 2 of Article 97 of the Law of the Administrative Court of Justice. Additionally, under Article 109, individuals challenging the implementation of non-cancellation rulings face potential penalties. However, the application of this new rule to non-cancellation rulings issued in the course of judicial proceedings—under the title of ruling to dismiss complaints—has effectively invalidated the enforcement of the rule in such cases. This raises concerns about the legitimacy of imposing penalties for challenging these decisions, as the implementation of complaint dismissals remains uncertain. At best, the provisions in non-cancellation rulings may be considered non-repeatable before the general board, specialized boards, and other judicial authorities. As a result, the non-cancellation of such provisions is not absolute. The principle of fair proceedings is required, especially in cases where new aspects emerge or litigants change. In particular, under Article 13 of the Law of the Administrative Court of Justice, matters that have already been addressed by the general board or specialized boards should be re-examined when new elements arise. This is crucial given the broad implications and regulatory impact of cases brought before the ACJ, which seeks to avoid the adversarial proceeding. Therefore, the validation of non-cancellation rulings under Article 93 remains subject to judicial scrutiny. The current procedure of the ACJ relies exclusively on legal and Sharia-based reasoning, assuming the validity of non-cancellation rulings issued by these boards. Consequently, under Article 85 of the Law of the Administrative Court of Justice, petitions challenging such rulings are generally dismissed.
5. Conclusion
Legal regulations governing the judicial process not only create effects arising from the handling of legal cases but also have broader social impacts, often leading to diverse—and sometimes conflicting—interpretations of laws and procedures. Over time, they can also give rise to practices that contradict the essence of the law yet become ingrained in judicial settings and public perception as seemingly legitimate rules. For this reason, legislators, especially when amending laws, must exercise great caution in determining the timing and implementation of legal changes, which is essential to ensure that amendments align with the original legislative intent and do not introduce ambiguities that could lead to conflicting interpretations, ultimately disrupting the judicial process.
Public Law
Hasan Mohammadi; Ali Mashhadi
Abstract
IntroductionPerfectionism, a long-standing influence on political theories of the state, is deeply connected to the concepts of the moral state, utopia, virtuous society, societal priorities, and the precedence of the good. Yet, the public sphere—conceptually emerging and evolving within modern ...
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IntroductionPerfectionism, a long-standing influence on political theories of the state, is deeply connected to the concepts of the moral state, utopia, virtuous society, societal priorities, and the precedence of the good. Yet, the public sphere—conceptually emerging and evolving within modern political thought—has been regarded by contemporary political thinkers as a normative domain and a rationalizing force for the state. One of the main approaches to the Constitution of the Islamic Republic of Iran (IRI) is perfectionism. This raises an important question: Considering the principles and pillars of the public sphere, can it be realized within the perfectionist approach to the Constitution in the Iranian legal system? Literature ReviewIn an article titled “From Privatization of Public Law to Publicization of Private Law: Legitimacy and Intervantion of Liberal Capitalist State in the Thought of Habermas,” Mashhadi (2015) explored the crisis of legitimacy in modern Western societies. According to Mashhadi, Habermas argues that the state in capitalist societies exists in a contradictory condition. The intense conflict of interests between classes of society means that whether the state intervenes in the economy or refrains from doing so, it ultimately faces a crisis of legitimacy. From a public law perspective, the thesis From Public Spaces to Public Spheres: Examining the Position of Public Spaces in the Laws of the Islamic Republic of Iran (Noubahar, 2013) examined examples of public spaces—including mosques, squares, and streets—within the IRI’s laws. Materials and MethodsThe present study used a descriptive–analytical method to address the research question. Moreover, the data was collected through library research. Results and DiscussionDespite traces of an impartial approach in the IRI’s Constitution, the perfectionist approach remains dominant. For instance, the preamble defines the purpose of the state as striving toward Allah, which is also reinforced in various parts of the Constitution (e.g., Articles 2 and 3) that assign specific duties to the state. Regardless of the compatibility between a perfectionist approach to the state and the concept of a modern constitution, the central question is whether the emergence and development of the public sphere is possible within this specific reading of the IRI’s Constitution.The perfectionist reading of the Constitution is based on the idea of guiding the people through the state, which assumes responsibilities beyond those specified in neutral approaches. In the perfectionist interpretation, the objective of the state is to establish a moral society in which the good of each individual is ensured by the state. Therefore, the role of the state extends beyond maintaining order or providing public material interests; it encompasses shaping the lives of citizens under its leadership. This reading finds significant support in the IRI’s Constitution. Key elements include defining a moral purpose for the state formation (the people’s movement toward Allah), specifying a utopia (the Islamic model society), deriving legitimacy from a source beyond the public will (assigning sovereignty and legislation to God), emphasizing the concept of a righteous ruler over an elected one (where the righteous govern the country), presenting a different reading of the political population (prioritizing the concept of Ummah over the nation), and determining the nature of the good life and the superior good (a faithful life). These thematic axes form the core of the perfectionist approach embedded in the Constitution. According to the deliberations of experts for constitution, these key themes also guide the primary approach of the majority of experts. Notwithstanding, the public sphere, as a concept rooted in modern political thought, is based on principles that contradict the foundations of the moral state—a product of the perfectionist approach to the Constitution. The public sphere relies on the idea of constituent power, which emphasizes communicative action as a necessary means to address the shortcomings of representative democracy, particularly regarding legitimacy—which is a key principle of democratic states. However, the legitimacy derived from the perfectionist approach to the Constitution is based on the rule of norms that originate not from social system but from the state, which is tasked with realizing the Islamic utopia by adhering to original Islamic norms. In this view, the state is not an embodiment of the people’s political will but rather the realization of a political ideal of a nation of the same faith. In other words, the political society of Ummah, as a population with the same thought, replaces the nation as a political entity.Therefore, key pillars of the public sphere—freedom, equality, and inclusivity—are shaped by this particular conception of political society. In the establishment of an Islamic model society, the essential factors are supposed to be Islamic standards, which are to serve as the foundation of the moral state. Consequently, at best, what emerges is not a true public sphere but rather a domain of the moral state, where the pillars of the public sphere (e.g., freedom, equality, and inclusivity) exist within a strict ideological framework. Furthermore, the perfectionist state is built on the precedence of the good over rights—the belief that, in the pursuit of Utopia, the state shall act as guides leading people toward perfection and is primarily responsible for defining and ensuring the good life. Consequently, the concept of justice, which is central to the idea of rights, is fused with the concept of virtue, and the state becomes the key agent in realizing the good as the foundation of virtue. The concept of nation is reinterpreted through the lens of the concept of Ummah, effectively eliminating ethical-philosophical pluralism. In this reading, individuals are not regarded as rights-holders but rather as duty-bearers or obligors whose perfection is defined by the state’s conception of the good, and who should abide by the norms that form the good independently of the social context. Thus, in a broader sense, political and social freedoms within the perfectionist approach to the Constitution are shaped by the prioritization of the good over rights, and their realization is subject to the state’s oversight and regulation. Within these interpretations, the perfectionist reading of the IRI’s Constitution is fundamentally at odds with the core principles of the public sphere, including freedom, equality, inclusivity, legitimacy based on public will, ethical-philosophical pluralism, and most importantly the separation of justice from virtue, which underpins the principle of prioritizing rights over the good. ConclusionRegardless of the value placed on the public sphere or the broader relationship between the modern constitution and the perfectionist conception of the state, the realization of the public sphere may be possible under alternative approaches to the IRI’s Constitution. However, within the perfectionist reading in Iran’s legal system, the foundations of the public sphere are in direct conflict with constitutional principles, making its realization impossible.
International Law
Elham Aminzadeh; Mersedeh Mazloumi; Amirsaed Vakil
Abstract
Introduction
In recent years, water resources have become increasingly important due to economic growth and population expansion. Effective management of these resources, along with environmental conservation, requires a multilateral approach involving countries and other international actors. This ...
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Introduction
In recent years, water resources have become increasingly important due to economic growth and population expansion. Effective management of these resources, along with environmental conservation, requires a multilateral approach involving countries and other international actors. This challenge becomes even more complex when water sources are shared across borders, as water is a limited resource that must be distributed fairly among neighboring countries. Germany, along with other European countries, has gained recognition for its effective management of shared water resources, environmental protection efforts, and hydropower development at both national and transnational levels. The German solutions offer valuable insights into addressing the challenges of water distribution among neighboring countries and can be applied in other regions worldwide. The solution adopted by Germany is reflected in its legal documents and practical procedures, emphasizing key principles such as equitable and reasonable use, assessment of each country’s current and future water needs, prevention of harm to others, and the preservation of shared water reserves. Furthermore, the approach advocates for international cooperation to maximize the benefits of water resources for the broader global community.
Literature Review
Previous discussions on the topic focused on the general study of transboundary waters, without examining the legal documents and judicial procedures particular to the German context. By addressing issues related to shared waters within the German legal system, this article can make a valuable contribution to legal scholarship.
Materials and Methods
The present study first examined Germany’s legal documents related to environmental regulations. Then it focused on the country’s practical procedure in the exploitation of shared waterways. In the first section, the management of shared water resources was analyzed from both national and international perspectives by distinguishing between Germany’s legal documents at these two levels. In this respect, the national legal documents were explored, particularly its alignment with higher-level legal instruments such as the European Union Water Framework Directive. Then, international conventions that Germany has joined or taken action on were reviewed.
Results and Discussion
Germany’s strategy for managing water resources at both the national and international levels treats all water bodies as integral parts of the natural ecosystem, requiring integrated management. This approach ensures that water resources are used optimally and equitably—both in terms of quantity and quality—while also preserving reserves for the future. Maintaining water reserves helps reduce potential conflicts between countries that share or border these waterways. In addition, the establishment of joint commissions for managing shared water resources plays a crucial role in their preservation. Such collaborative efforts contribute to minimizing disputes and challenges among the countries bordering on waterways. The more effectively and fairly shared rivers are managed, the better water resources are preserved, ultimately reducing conflicts over shared waterways.
Conclusion
By analyzing Germany’s current practical procedure, the study revealed that one effective solution for resolving conflicts over the allocation of shared water resources is to define the responsibilities and rights of countries within a watershed. This ensures that while nations exploit the water within their territorial boundaries, they also adhere to key principles such as caution, preventive action, and compensation. Cooperation in managing shared water resources takes precedence over conflict resolution, as collaboration among watershed countries can significantly contribute to water resource management. Moreover, transparency plays a crucial role in preventing misunderstandings between countries. Ensuring access to information fosters mutual understanding among countries sharing a watershed, helping them reach a common ground.
Public Law
Amir Mohajer Milani
Abstract
Introduction
The history of modernity in Iran, regardless of its origins, begins with the Iranian constitutional movement—marking the moment when Iran inevitably entered the realm of European thought. This movement was supported by three influential groups: the clergy, intellectuals, and court ...
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Introduction
The history of modernity in Iran, regardless of its origins, begins with the Iranian constitutional movement—marking the moment when Iran inevitably entered the realm of European thought. This movement was supported by three influential groups: the clergy, intellectuals, and court elites, each with different views and motivations. On one hand, the movement could not transcend the traditional structures of Iranian society and therefore required the support of religious authorities to succeed. On the other hand, the religious thought of the time was not equipped to shoulder the weight of constitutionalism without undergoing reform. Consequently, the idea of religious reform became a central concern of the reformist movement from the outset, leading to the development of more complex theoretical reflections. In this context, Javad Tabatabai, one of the most significant theorists of intellectual movements in Iran, held a distinct view compared to many of his contemporaries. He argued that religious reform within Sharia-based Islam was possible only within the realm of law—through the transformation of Sharia law into a modern, historically-informed legal system. According to him, this transformation provided the conditions for the reinterpretation of the Sharia-based legal text through the lens of modern legal theories originated from the philosophy of modern law. This process of (re)interpretation, in Tabatabai’s view, resulted in the new within the old while eliminating the old within the old, thereby paving the way for modernity in Iranian society. Tabatabai contended that the constitutional movement, whose legal dimension had overshadowed its political nature, exemplified this model of theory in practice by reshaping the logic of religious understanding and legitimizing the transformation of Sharia law into the modern legal system. The present study aimed to offer a critical reading of Tabatabai’s theory on the Iranian modernity and the relevance of legal debates therein.
Literature Review
The discussion on religious reform and its impact on modernity, beyond broad and often inconclusive and futile debates like secularization or laicization, presents a significant challenge—especially when attempting a scholarly analysis that ought to account for the diversity of religions and the singularity of human societies. As Marcel Gauchet (2006) has aptly explained, this complexity makes theorizing in this field particularly difficult. The spectrum of theorizations on religious reform in Iran ranges from relatively simple ideas, such as Akhundzadeh’s notion of Islamic Protestantism or Mirza Malkam Khan’s minimal interpretation of Islam (Tabatabai, 2013), to more intricate perspectives such as Shariati’s sociological analysis (Shariati, 1973), Soroush’s hermeneutic discussions (Soroush, 1991), and Hajjarian’s sociological explanations of the secularization of jurisprudence (fiqh) (Hajjarian, 2010). However, according to Tabatabai, these theories are not only insufficient but also fail to account for the Sharia-oriented nature of Islam and establish a point of relevance with history of Iranian thinking. As a result, they cannot fully explain the evolution of religious thought in contemporary Iran. As a theorist of the historical decline and the impossibility of thought in Iran, Tabatabai dedicated a significant portion of his later and more complex writings to addressing this issue. He raises a crucial question, if the term religious reform can be applied to Islam, what would be the indigenous theory of religious reform within the Sharia-based Islam? Tabatabai (2021) rightly considered this one of the knots and underexplored questions in the history of Iranian thought. For him, addressing the issue is key not only to understanding the history of thought in Iran but also to shedding light on the history of concepts in contemporary Iran. His general response to this question lies in the realm of law. Tabatabai contends that in Sharia-oriented Islam, religious reform is only possible through the transformation of Sharia law into a modern legal system. He argues that Iran’s constitutional movement exemplified this approach, as the constitutional movement introduced two groundbreaking perspectives within the Islamic world—particularly in Shia Islam: first, the permissibility of transforming
Sharia into a set of codified laws, and second, the possibility of interpreting these laws through the modern law. This created an unprecedented transformation in the understanding of Islam. The current research sought to provide a revised and coherent account of Tabatabai’s thought, focusing on two key areas: his theorization of religious reform and its application to the constitutional movement. However, rather than uncritically accepting his assumptions, unspoken premises, or reasoning, the analysis aimed to challenge his single-factor approach in explaining the evolution of religious knowledge and tradition over the past two centuries, calling for adjustments and a more nuanced perspective. Tabatabai’s legal-oriented interpretation of religious reform in Islam is unprecedented. Yet, despite its significance and its high explanatory power in understanding contemporary religious thought, his theory has received little critique or scholarly reassessment. The only existing work on the subject is Javad Miri’s short treatise in Persian: The General Theory of Religious Reform: Rereading Seyyed Javad Tabatabai’s Narrative of Constitutional Political Philosophy (2021). However, despite the title, Miri limited himself to a few general and somewhat hasty criticisms in the opening pages before shifting his focus to critiquing other aspects of Tabatabai’s work.
Materials and Methods
The present study relied on documentary research and content analysis to provide a coherent account of Tabatabai’s complex theory of religious reform.
4. Results and Discussion
Tabatabai argued that modern legal knowledge could play a significant role in reforming Sharia-based Islamic thought. In his view, transforming jurisprudence (fiqh) into legal codes creates a lasting separation between these laws and Islamic jurists (faqihs). This detachment of legal texts from the guardians of the traditional view of Sharia paves the way for legal scholars to take on the role of interpreting and understanding these legal codes. Free from the discursive constraints of the Islamic jurist (faqih) and unbound by ideological influences, modern legal scholars can apply modern legal theories and philosophies to reinterpret fiqh-based legal codes. Tabatabai sees this as the only viable path to religious reform within the Sharia-based Islam. While the idea that pragmatic jurisprudence (fiqh) can facilitate religious reform at the intersection of fiqh and law is significant and valuable, it can be questioned from various perspectives. Perhaps the most fundamental criticism lies in its core assumption: the separation of Islamic jurists (faqihs) from fiqh-based legal codes. At least within the Iranian legal system, such a separation has not yet materialized.
Conclusion
According to the findings, while Tabatabai’s theory of religious reform demonstrates a stronger capacity for indigenous understanding and a more coherent interpretation of this complex issue compared to competing perspectives, it cannot be considered a definitive or comprehensive explanation of the evolution of Shia religious thought in the modern era. The primary criticisms of his theory include its reliance on a linear evolutionary conception of history, its comparison of fundamentally incommensurable categories, its one-dimensional interpretation of the constitution as merely a legal matter, and its misreading of key religious texts.
Public Law
Hamed Nikoonahad; Marzye Mohammadabadi
Abstract
Introduction
According to the principle of the hierarchy of norms, legal rules can be represented as a pyramid, with the Constitution at the top as the superior law. However, the Constitution is not immune to violations by subordinate norms, making it essential to take measures to protect the Constitution. ...
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Introduction
According to the principle of the hierarchy of norms, legal rules can be represented as a pyramid, with the Constitution at the top as the superior law. However, the Constitution is not immune to violations by subordinate norms, making it essential to take measures to protect the Constitution. Without an effective mechanism to uphold its authority, the Constitution risks losing its effectiveness. In Iran’s constitutional system, the Guardian Council is designated as the competent authority responsible for ensuring the supremacy of the Constitution in the legislative process, as outlined in Article 91 of the Constitution. This council is tasked with reviewing legislation passed by the Islamic Consultative Assembly to ensure it does not conflict with the Constitution. However, the Council’s supervisory role is neither comprehensive nor essentially adequate, leading to shortcomings in ensuring the Constitution’s supremacy. These shortcomings primarily stem from constitutional principles, amendments, or gaps therein. This research aimed to identify these shortcomings by analyzing the Guardian Council’s supervisory procedures over the ordinary law. The central research question is, what are the shortcomings and challenges faced by the Guardian Council’s supervisory role in ensuring the supremacy of the Constitution over ordinary law?
Literature Review
There are several studies on the Guardian Council’s supervision over the ordinary law. One notable work is the Persian-language book titled Monitoring Legislation in Iran and the United States (Safaie & Hamidiyan, 2010), which examines legislative oversight in both countries. In “The Guardian Council and Review of Laws,” Mehrpour (1993) discussed how the Guardian Council supervises parliamentary approvals. However, Mehrpour did not specifically analyze the limitations or shortcomings of the Council’s supervision over the ordinary law. The existing studies also analyze the Guardian Council’s performance in reviewing parliamentary resolutions, focusing on their compliance with the Constitution in terms of quantity and quality. Additionally, some research has examined the Guardian Council’s supervision of parliamentary resolutions in relation to higher-level legal documents, providing an explanation and analysis of the Council’s legal status as an autonomous agency operating independently of the three branches of government. Discussion have explored the Guardian Council’s position and competency in reviewing parliamentary approvals. Key issues of Article 94, the definition of parliamentary approval, the Council’s a priori supervision of legislation, and the ten-day review period were also examined and analyzed. The existing literature has primarily focused on the foundations of the Council’s formation and its approach to supervising the ordinary law. However, it seems no serious research has coherently addressed the shortcomings inherent in the Council’s supervisory mechanisms.
Materials and Methods
Adopting a procedural research design, the present study aimed to offer a legal analysis of the shortcomings in the Guardian Council’s supervision over the ordinary law, as well as to propose solutions to address these issues. The study is based on a key premise that it is necessary to ensure the supremacy of the Constitution and establish a systematic mechanism to uphold it.
Results and Discussion
The analysis focused on the procedures and opinions of the Guardian Council in ensuring the supremacy of the Constitution. The results revealed that the mechanisms established for its supervision of the ordinary law are not comprehensive. In practice, these shortcomings have caused disruptions in the constitutional decision-making system. One such issue is that the Guardian Council is required to determine whether parliamentary approvals contradict the Constitution within a limited timeframe. This restriction, set forth in Article 94, is not always effective—especially in cases where council members require more time for review, such as budget-related or large-scale approvals. Even with the 10-day extension allowed under Article 95, this constraint remains problematic. Furthermore, the Guardian Council’s supervisory authority is limited to approvals issued by the Islamic Consultative Assembly and does not extend to those made by other legislative bodies that operate in line with the law. These limitations result in constitutional requirements being overlooked and the incorporation of ordinary laws that contradict the Constitution into the legal system. These issues highlight the need to revise and reform the mechanisms of the Guardian Council’s supervision over the ordinary law. Given that Article 94 of the Constitution aims to prevent the introduction of unconstitutional laws into the legal system, this goal can only be fully achieved if the Guardian Council is granted the authority to oversee all ordinary laws. To protect the Constitution, it is essential for the Guardian Council to have the authority to declare laws inconsistent with the Constitution invalid.
Conclusion
It is recommended that Article 95 of the Constitution be amended to grant the Guardian Council the authority to declare laws inconsistent with the Constitution invalid, even after the deadlines for issuing opinions have passed and during their implementation. In addition, the Guardian Council could expand its supervisory powers by adopting an eschatological interpretation of Article 94, allowing it to review and assess the conformity of laws with the Constitution even after they have come into effect.
Public Law
Ali akbar Jafari Nadoushan; Omid Shirzad
Abstract
Introduction
As a landmark achievement of Iran’s constitutional movement, the Constitution was of such great importance that some representatives of the first National Assembly—many of whom were dedicated fighters in the Constitutional Revolution—memorized its principles as if they ...
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Introduction
As a landmark achievement of Iran’s constitutional movement, the Constitution was of such great importance that some representatives of the first National Assembly—many of whom were dedicated fighters in the Constitutional Revolution—memorized its principles as if they were verses of the Qur’an. Their commitment to upholding and protecting the Constitution was so unwavering that it seemed inconceivable that any harm could come to it. However, following the fall of the Qajar dynasty and the rise of Reza Khan Pahlavi, the Constitution underwent its first revisions. Power was transferred from the Qajars to the Pahlavis in a manner that contradicted constitutional principles. Furthermore, during Reza Shah’s 16-year reign (1925–1941), both the text and spirit of the Constitution were systematically distorted to serve an authoritarian will, leading to its decline in value and significance. This study aimed to examine the historical causes and contexts underlying these constitutional changes during the First Pahlavi period. By tracing the evolution of constitutional law in Iran, it tried to shed new light on this significant episode of Iran’s contemporary history. In this respect, the following research questions were addressed: What was the historical context behind the constitutional revision that facilitated the transfer of power from the Qajar dynasty to the Pahlavi dynasty? From a legal perspective, what processes led to the establishment of the Pahlavi monarchy and the dissolution of the Qajar dynasty? And during Reza Shah’s 16-year reign—aside from actions that directly violated constitutional principles—what justifications or apparently legal procedures contributed to altering and undermining several principles of the Constitution?
Literature Review
There is some serious research on the Constitution of Mashruteh. Notable among them are: “A Study of the Legal and Historical Foundations of the Evolution of the Constitution of Mashruteh” (Jafari-Nadoushan & Tavakoli, 2020), “The National Assembly as a Corridor for the Establishment of an Absolute Monarchy” (Khalili, 2011), and “Extra-legal Actions to Re-interpret Article 82 of the Constitutional Amendment During Reza Shah Era” (Ali-Sufi & Sadeghi, 2021). Building on the existing scholarship, the present study aimed to examine the revision of the Constitution and its legal implications. From the perspective of constitutional law, it explored the evolution of the Constitution and the gradual weakening of its principles through interpretative mechanisms.
3. Materials and Methods
The present study employed the library research to collect the data. Moreover, a descriptive–analytical method was used to analyze the data.
Results and Discussion
The first part of the research analyzed the amendment of Principles 36 to 38 of the Constitution and the transfer of power from the Qajar dynasty to the Pahlavi dynasty. A review of historical events of the time led to the conclusion that neither the establishment of the Constitution at the end of Muzaffar al-Din Shah’s reign in 1906 nor its revision in 1925 and the subsequent transfer of power to the Pahlavis followed a democratic process. In other words, in both 1906 and 1925, the Constitution—both in its establishment and later amendments—was shaped through a semi-authoritarian, semi-granted process, with minimal direct participation from the people. The second part of the research examined the substantive transformations of the Constitution that arose through the interpretation of certain principles. During Reza Shah’s 16-year reign, two significant attempts were made to interpret constitutional principles. Although these did not constitute formal constitutional revisions, their impact was profound enough to be considered in any study of constitutional evolution during the First Pahlavi period. The results support the hypothesis that these interpretations effectively led to the alteration and weakening of the Constitution. The first instance involved the interpretation of Principles 81 and 82, which resulted in the weakening of the judiciary and the erosion of judicial independence. The second occurred in 1938 when Principle 37 was interpreted to fulfill Reza Shah’s desire to establish a hereditary monarchy within his family.
5. Conclusion
The research findings confirm that in the post-Constitutional era—despite the weakening of tyranny, the preservation of territorial integrity, certain aspects of modernization, and some advancements—the conflict between the traditional authoritarian order and the democratic order persisted. This situation led to Reza Shah’s dominance over the Constitution. His dominance and violations of the Constitution occurred both during the transfer of power from the Qajar dynasty to the Pahlavi dynasty in 1925 and in subsequent years (particularly in 1931 and 1938) when the National Assembly interpreted the Constitution in ways that favored his rule. While the 1925 revision of the Constitution may be considered inevitable due to the shift in monarchy, the interpretations during Reza Shah’s reign were undeniably clear violations of the Constitution. These actions undermined principles of public law, such as judicial independence. The events of 1931 and 1938, which involved proposals from judicial ministers and interpretative rulings by the National Assembly, demonstrated that the Shah, as head of the executive branch, effectively dominated both the judiciary and the legislative branch. In doing so, he imposed his will to power on the Constitution.
International Law
Milad Haji Esmaeili; Mehrab Darabpour
Abstract
Introduction
The regulation of multinational enterprises (MNEs) is a critical issue, given the numerous disasters throughout history caused by their activities. As a result, the legal community has continuously sought solutions to regulate MNEs. Various efforts (e.g., U.N. conventions on human rights ...
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Introduction
The regulation of multinational enterprises (MNEs) is a critical issue, given the numerous disasters throughout history caused by their activities. As a result, the legal community has continuously sought solutions to regulate MNEs. Various efforts (e.g., U.N. conventions on human rights or the guidelines of the OECD and the International Labour Organization) have aimed to address the regulation of MNEs. However, the Global Compact initiative stands out because, unlike previous agreements, it does not assign a regulatory role to governments. Instead, it directly links MNEs to the United Nations. In 1999, then-United Nations Secretary-General Kofi Annan, speaking at the World Economic Forum in Davos, emphasized the need for what he called the Global Compact. Annan proposed, “you, the business leaders gathered in Davos, and we, the United Nations, are launching a global pact of shared values and principles that will give a human face to the global market.” His speech marked the beginning of a direct relationship between enterprises and the United Nations. Since its adoption in 2000, the Global Compact has sparked both criticism and support. As the largest and most innovative voluntary initiative of its kind, it called for the active participation of MNEs in international law. Before this initiative, the United Nations primarily engaged with the states, and the regulation was shaped by the confrontation between the states and enterprises. Naturally, any initiative operating within the rigid framework of international law is bound to face criticism. To fully understand the Global Compact, it is essential to explore its principles, identify its key members, and examine its functioning. Having provided an overview of the history and functioning of the Global Compact, the present study tried to address three major criticisms frequently directed at the initiative: 1) the Compact’s ten principles are too vague to be effectively implemented, 2) the Compact allows large MNEs to exert undue influence over the United Nations, and 3) the absence of binding executive monitoring means MNEs have no legal accountability. The objective of the study was to assess the validity of these criticisms and, where possible, refute them, thereby contributing to the further advancement of the Global Compact.
Literature Review
There are few Persian-language studies specifically addressing the Global Compact. However, a wealth of English-language research provides valuable insights into the subject. As a result, the current analysis relied on English-language sources to develop a deeper understanding of the Global Compact and its role as a regulatory framework for multinational enterprises.
Materials and Methods
This study employed a descriptive–analytical approach to explain and critically examine the unwritten elements, values, and policies that extend beyond the formal text of the Global Compact. It also explored their significance and status in relation to the official document, offering deeper insights into the Compact’s underlying principles. Using a qualitative methodology, the study integrated document analysis and critical discourse analysis to assess the Global Compact as a regulatory framework for MNEs. The document analysis drew on primary sources, including the official texts of the Compact’s ten principles, reports on corporate compliance, and relevant U.N. publications. Secondary sources included academic articles, books, and case studies exploring the Compact’s implementation. Critical discourse analysis was employed to examine the narratives, assumptions, and power dynamics embedded within the Compact’s framework. The discourse analysis focused on three key areas: the historical evolution of multinational regulation leading to the Global Compact, the operational mechanisms of the Compact (including its principles and stakeholder interactions), and the criticisms and limitations identified by scholars and practitioners, juxtaposed against the objectives stated in the Compact. By combining these methods, the study sought to provide a comprehensive understanding of the Global Compact’s role in global governance and its potential to address regulatory challenges associated with MNEs.
Results and Discussion
The findings of this study highlighted both the Global Compact’s effectiveness in promoting ethical corporate behavior and its limitations in addressing enforcement gaps. Several key insights were derived from the analysis. First, the Compact’s ten principles are closely aligned with globally recognized standards, such as the Universal Declaration of Human Rights and the ILO’s Fundamental Principles of Rights at Work. Second, with over 23,000 voluntary participants, the Compact has garnered significant engagement from MNEs across both developing and developed economies, demonstrating its global reach and relevance. Third, despite its impact, the Compact has faced criticism for its voluntary nature and lack of accountability. However, this study underscored its potential as a collaborative framework that guides corporate practices and informs regulatory policies. Fourth, the Compact plays a complementary role by fostering dialogue, learning, and partnerships. In doing so, it bridges the gap between corporate self-regulation and formal legal frameworks, particularly in contexts where regulatory enforcement is weak or absent. These findings affirm the Compact’s value as a pragmatic, albeit imperfect, instrument for integrating corporate activities into the broader fabric of sustainable development and global governance. The Global Compact offers a novel framework for regulating MNEs through non-binding principles rather than traditional state-imposed regulations. The results highlighted the implications of this unique framework and its ability to address contemporary challenges in corporate accountability, human rights, labor standards, environmental protection, and anti-corruption. By emphasizing voluntary compliance and collaborative mechanisms, the Compact fosters a participatory approach that encourages businesses to internalize ethical practices organically. However, criticisms regarding its vagueness, susceptibility to corporate capture, and lack of enforceability remain significant. This study argues that such criticisms overlook the Compact’s intended role and purpose—not as a rigid regulatory instrument, but as a platform for learning, dialogue, and innovation. Furthermore, the Compact complements existing regulatory frameworks by bridging gaps in state and international governance, promoting transparency, and cultivating a culture of ethical business practices. Ultimately, it functions as a supplementary agreement that aligns the objectives of MNEs with broader societal goals, facilitating their integration into global governance.
Conclusion
The present article examined the Global Compact and evaluated the legitimacy of its stated objectives. To achieve this, it was necessary to conduct a thorough assessment of the Compact’s ten principles, identify its members, and examine how it functions. The analysis revealed that the principles were designed to serve four key goals: protecting human rights, upholding labor rights, promoting environmental sustainability, and combating corruption. The Compact’s members fall into four categories: MNEs, the United Nations, non-governmental organizations, and governments. Its functioning is structured around three main components: dialogue, learning, and collaborative projects. Having offered an understanding of the Global Compact, the article addressed several criticisms associated with it. Three key criticisms were highlighted: first, the ambiguity of its principles, which fails to provide a clear framework for assessing corporate misconduct; second, the Compact’s role in facilitating MNEs’ involvement in U.N. policymaking, potentially shifting the focus toward commercial interests; and third, the absence of accountability mechanisms, allowing companies to associate themselves with the U.N. to justify their actions without consequences. Several points were offered in response to such criticisms. It can be argued that the vagueness of the Compact’s principles is intentional, providing enterprises with the flexibility to develop innovative solutions. If the principles were overly detailed, they could stifle innovation. Moreover, MNEs have historically played a significant role in shaping international policies, regardless of the Global Compact. The Global Compact, therefore, serves to formalize and bring transparency to the otherwise hidden policies of these corporations. The most fundamental criticism (i.e., the lack of accountability) was also addressed, which underscored the need for more robust mechanisms to ensure corporate responsibility. Finally, the study examined the Compact’s regulatory foundations, emphasizing that it would not seek to impose traditional regulations like other agreements. Instead, it operates beyond both national and international regulatory frameworks. Historically, regulators have prioritized enforcement, often overlooking how regulations align with industry practices. When regulations fail to reflect industry realities and needs, they can lead to inefficiencies and misunderstandings that negatively impact both governments and enterprises. The Global Compact’s true objective is not to regulate but to bridge the gap between industry concerns and regulatory practices, fostering open dialogue and mutual learning in a transparent environment.
Public Law
Seyyed Saeid Mousavi asl
Abstract
Introduction
The establishment of modern law in contemporary Iran has been a major concern for many intellectuals and religious scholars. In this context, Mirzai Naini and Yousuf Khan Mostashar al-Dowleh approached the issue of law from two distinct intellectual perspectives. This raises an important ...
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Introduction
The establishment of modern law in contemporary Iran has been a major concern for many intellectuals and religious scholars. In this context, Mirzai Naini and Yousuf Khan Mostashar al-Dowleh approached the issue of law from two distinct intellectual perspectives. This raises an important question: How did they formulate the concept of modern law according to their respective approaches? This question becomes even more significant when considering that Mostashar al-Dowleh engages with modern concepts rooted in Western culture with minimal regard for ancient traditions, while Mirza Naini, despite his strong religious commitment and defense of the jurisprudential approach, pays considerable attention to modern concepts. Given this, examining the fundamental differences in their approaches—particularly how each thinker balances ancient traditions with modern ideas—is essential for understanding the evolution of Iranian thought in the face of modernity and the establishment of law in the contemporary era. This article aimed to explore how law was conceptualized at the intersection of tradition and modernity in the perspectives of these two thinkers and on what foundations their differing formulations were based. To address this question, the study first examined Mostashar al-Dowleh’s approach to the conceptual formulation of modern law, followed by an analysis of Mirza Naini’s perspective. Finally, the analysis highlighted the defining characteristics and dimensions of each approach.
Literature Review
Concerning the research on the concept of modern law in Iran, notable Persian-language contributions include A Reflection on Iran: A Theory of the Role of Law in Iran by Seyed Javad Tabatabai (2013), Old Concepts and Modern Thought by Hossein Abadian (2009), and The Concept of Law in Contemporary Iran: Pre-Constitutional Developments by Davoud Feirahi (2020). However, the scholarly literature has not yet dealt with the rereading and analysis of the approaches of modern intellectuals and Sharia-oriented scholars on the subject of law from the standpoint of philosophy of law. In other words, the conceptual formulation of modern law in contemporary Iran is shaped by the epistemological background of thinkers who have addressed this issue. The frameworks emerged from their efforts deserve a systematic comparison.
Materials and Methods
The present study used the citation analysis method and an analytical approach with a focus on the philosophy of law.
Results and Discussion
Mostashar al-Dowleh was one of the first Iranian intellectuals to propose a plan for the transition from the traditional Sharia-based legal system to modern law. He played a pivotal role in advancing the rule of law in Iran. In the introduction to his treatise One Word, before addressing French public law or the principles of the 1789 Declaration of Human Rights, Mostashar al-Dowleh highlights five key differences between the Book of Sharia and the Book of Law. At the same time, he identifies fundamental points that lay the groundwork for the transition from the traditional Sharia system to modern law. In One Word, Mostashar al-Dowleh emphasized that the enduring essence of those legal codes, the very soul of all French laws, consisted of nineteen items, as printed at the beginning of the code. Thus, his primary objective in translating the French public law codes was to emphasize the spirit of the codes and the soul of French laws, believing that understanding these core principles was essential for establishing the rule of law in Iran. While Mostashar al-Dowleh sought to reinterpret the traditional legal system through the lens of modern reason and concepts, Mirza Naini approached law from within the framework of the traditional Sharia. Naini aimed to define the scope of law in accordance with Sharia-based jurisprudence (fiqh) and its traditional rationality. According to Feirahi (2015), Naini’s Tanbih al-Ummah represents a jurisprudential school that provides a foundation for the religious expression of modern concepts. Feirahi argues that Naini’s engagement with modern concepts, including law, was deeply rooted in constitutionalist thought. However, Naini operated within the jurisprudential tradition of Shia scholars (mujtahids), where traditional religious concerns remained central. His interpretation of constitutional concepts was therefore shaped by the spirit of religion. Consequently, Naini’s approach to law was not influenced by modern reason or modern political thought.
Conclusion
Mostashar al-Dowleh and Mirza Naini were contemporaries who approached the formulation and establishment of law in contemporary Iran from two distinct intellectual perspectives. In the context of the transition from Sharia to modern law, Mostashar al-Dowleh proposed his framework by emphasizing the principles of French human rights—considering them the spirit of modern law— and reinterpreting Sharia provisions in light of those principles. By advocating for the concept of law as self-governing and asserting the primacy of national acceptance over all government rulings, he demonstrated his awareness of the requirements of modern reason while simultaneously engaging with traditional thought in light of modern reason. In this sense, he exhibited both an understanding of and a commitment to the prerequisites of law in light of modern reason. In contrast, Mirza Naini not only disregarded the requirements of modern reason in his conception of law but also sought to formulate the law entirely within the system of Sharia. His approach involved reinterpreting the law within the system of religious thought, hence in light of the tradition. Although both thinkers were concerned with establishing a foundation for modern law in contemporary Iran, their approaches were fundamentally different. Mostashar al-Dowleh’s perspective led to a rereading of traditional concepts through the lens of modern reason, whereas Naini’s approach aimed to digest and integrate modern concepts into the system of Sharia.
Public Law
Marziyeh Sadeghiyan; Asadollah Yavari; Seyed Naser Soltani
Abstract
Introduction
The link between Martin Loughlin and Michael Oakeshott goes back to their native, non-normative, and pragmatic view on the constitution. According to Loughlin, the formation and evolution of a constitution should be understood by analyzing governmental practices from a non-normative ...
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Introduction
The link between Martin Loughlin and Michael Oakeshott goes back to their native, non-normative, and pragmatic view on the constitution. According to Loughlin, the formation and evolution of a constitution should be understood by analyzing governmental practices from a non-normative standpoint, shaped within the context of each political and legal system. Considering Oakeshott as the foremost representative of conservatism, Loughlin explores the defining characteristics of Oakeshott’s philosophy as a systematic theory of human behavior and politics, as well as the particular form of conservatism it embodies. Loughlin emphasizes Oakeshott’s critique of rationalism and his emphasis on practical or traditional knowledge, drawing from his conception of politics as a tradition of behavior. The present study aimed to examine Loughlin’s engagement with Oakeshott’s distinctive reading of tradition and practice, which directly influenced Loughlin’s theory of public law as practice. On the basis of his reading of Oakeshott, Loughlin conceptualizes public law as a native system and a tradition shaped within a specific spatiotemporal context, reflecting the unique characteristics of a given society and political order. Accordingly, Loughlin’s emphasis on governance practices and the gradual adaptation of public law in response to social and political conditions—without being strictly dictated by normative principles—closely aligns with Oakeshott’s notion of politics as a practice of conduct. The study tried to answer the following research questions: How does Loughlin interpret Oakeshott’s political thought? And where does this interpretation manifest in Loughlin’s theory?
Literature Review
Loughlin and Oakeshott have generally been regarded as independent thinkers, despite Loughlin frequently referencing Oakeshott’s ideas in his works. Notably, Oakeshott’s political thought is examined in Loughlin’s Public Law and Political Theory (1992). The current research examined both thinkers, particularly in relation to key approaches in public law, analyzing the influences Loughlin has drawn from Oakeshott’s thought.
Materials and Methods
This study examined the writings of Loughlin and Oakeshott to describe their ideas and provide a thorough analysis of their perspectives on public law, the constitution, conservatism, politics, tradition, and practice. The objective was to determine how Oakeshott’s thought influenced Loughlin’s theory.
Results and Discussion
Michael Oakeshott was one of the most influential philosophers of the 20th century, making significant contributions to political philosophy and the development of conservative and liberal theories. In his conservative perspective, he presented the concept of practice that governs conduct and is shaped by the specific historical and geographical context of its time and place. He rejected the notion of a universal reason that provides a single solution to political, economic, moral, and social issues across all times and places. Understanding Oakeshott’s thought is particularly relevant in the Iranian context. In this respect, the current study first defined public law from Loughlin’s perspective to clarify his approach to the subject. Then, two major styles governing Loughlin’s theory of public law were introduced, namely normativism and functionalism—each of which has its own ideal-typic models. The two ideal-typic models within the normative style are conservatism and liberalism, with the latter being the concern of this study. Loughlin presents Oakeshott’s thought as representative of the ideal-typic model of conservatism. He explores key aspects of Oakeshott’s philosophy, including its epistemological foundations, his critique of rationalism in politics, and central concepts such as government, law, and conservatism. Finally, Loughlin also evaluates Oakeshott’s political theory. He emphasizes Oakeshott’s critique of rationalism and his focus on practical or traditional knowledge, seemingly drawing from Oakeshott’s view of politics as a practice of conduct. According to the findings, Oakeshott’s ideas significantly influenced Loughlin, shaping the core foundations of his theories. In formulating his theory of public law as practice, Loughlin seems to adopt Oakeshott’s concept of practice as a guiding principle.
Conclusion
The findings helped provide a comprehensive understanding of Oakeshott’s and Loughlin’s approaches to public law and its relationship with politics. Moreover, the analysis identified the specific ways in which Oakeshott’s thought influenced Loughlin’s theory.
