Public Law
Hasan Mohammadi; Ali Mashhadi
Abstract
IntroductionThe emergence and expansion of the concept of the public sphere since the Enlightenment has played a pivotal role in the formation of modern societies. Conceived as a space for rational dialogue and the formation of public opinion, the public sphere has been examined through various theories, ...
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IntroductionThe emergence and expansion of the concept of the public sphere since the Enlightenment has played a pivotal role in the formation of modern societies. Conceived as a space for rational dialogue and the formation of public opinion, the public sphere has been examined through various theories, such as the theory of neutrality. The theory of neutrality, which emphasizes the state’s non-interference in matters of belief and values, provides a foundation for the flourishing of the public sphere. The present study aimed to examine the feasibility of realizing the public sphere in light of the theory of neutrality, addressing both the challenges and opportunities it presents. The research question is as follows: Is the realization of the public sphere feasible within the framework of the theory of neutrality? By elucidating the theoretical foundations of each concept and exploring their intersection, the study sought to provide a comprehensive account of how the public sphere and neutrality can coexist and reinforce each other. Finally, the analysis of concrete and practical examples helped propose solutions to strengthen this connection and enhance civic participation in contemporary societies.Literature ReviewThe article “The Relationship Between Government and the Desired Life: An Assessment of Neutral and Perfectionist Approaches” (Rasekh & Rafiei, 2013) examined the foundations of neutrality and perfectionism, as well as their respective relationships with government and its connection to the people. In the Persian-language book titled Perfectionism and Neutrality and Their Effects on Power Structure and Public Law, Shirzad and Rahmatollahi (2019) discussed the general concepts of perfectionism and neutrality. In addition, in the article “A Reflection on the Concept and Foundations of a Perfectionist State,” Shirzad (2020) analyzed the foundations of perfectionism. However, no specific research has been identified that addresses the subject of the present research—namely, the feasibility of realizing the public sphere within the theory of neutrality.Materials and MethodsThe current study used analytical–descriptive and library research methods to examine and explain the feasibility of realizing the public sphere within the theory of neutrality. Results and Discussion The theoretical and analytical review of the present article led to the following key findings regarding the feasibility of realizing the public sphere within the framework of the theory of neutrality. The theoretical and analytical review conducted in this article yielded several key findings regarding the feasibility of realizing the public sphere within the theory of neutrality. A substantive link was identified between the concept of the public sphere, understood as a free space for rational discourse, and the theory of neutrality, which emphasizes the state’s non-interference in ideological and value-related matters. By guaranteeing fundamental freedoms, neutrality provides the necessary foundation for the independent functioning of the public sphere. The study also found that mere and passive state neutrality, while guaranteeing freedom of expression, can in practice overlook structural inequalities and unequal access for marginalized groups to the public discourse. This limitation hinders the realization of an inclusive and just public sphere. For this reason, the analysis highlighted the necessity of active neutrality. Effective realization of the public sphere requires more than simple non-interference; it calls for policies aimed at removing barriers to participation, ensuring equal access to information, and supporting independent civil institutions. Moreover, neutrality, by supporting pluralism and respecting diverse beliefs, provides a unique opportunity for enriching public discourse. Pluralism prevents the monopolization of discourse by a specific group or ideology and ensures the dynamism of the public sphere.Based on the above findings, it can be argued that the realization of the public sphere within the theory of neutrality is not only an ideal but also a necessity for democratic societies. However, its realization requires a precise and subtle understanding of the concept of neutrality. It should not be interpreted as the state’s indifference to the fate of public discourse or its lack of responsibility for the fair participation of citizens. Instead, active neutrality tends to create and maintain the necessary infrastructure for free and equal discourse, thereby playing a central role in enhancing the public sphere. The main challenge lies in defining and implementing neutrality in a way that both guarantees individual and group freedoms and addresses existing inequalities in access to public discourse. This requires the state, while maintaining its neutrality regarding the content of beliefs, to take active steps toward removing structural barriers that hinder the participation of certain groups. Supporting media literacy education, encouraging independent and diverse media, and creating fair digital platforms for dialogue are examples of active neutral measures that can reinforce and expand the public sphere. It should also be emphasized that the dynamism of the public sphere is not determined solely by state actions. The role of civil society, scholars, and citizens in creating free spaces for dialogue and safeguarding the independence of the public sphere from political and economic pressures is equally crucial. Within a society grounded in the theory of neutrality, independent institutions can contribute to shaping public opinion without fear of state interference. Finally, the public sphere and the theory of neutrality can complement one another and together strengthen democracy. The realization of this coexistence depends on a proper understanding and thoughtful application of neutrality, one that ensures both freedom and justice in access to the public sphere. Conclusion The current study examined the feasibility of realizing the public sphere within the theory of neutrality. The research findings revealed a strong connection between these two concepts, as state neutrality in matters of belief and values provides a secure and open space for citizen dialogue and the exchange of ideas—conditions essential for the formation of a dynamic public sphere. However, an exclusive focus on passive neutrality can pose challenges, particularly by overlooking structural inequalities that may hinder the equal participation of all groups in public discourse. Therefore, it is concluded that the realization of an effective and inclusive public sphere requires a kind of active neutrality. This approach, which goes beyond mere non-interference, involves actions by the state and civil institutions to remove barriers to participation, ensure equitable access to information, and support independent media and organizations. The pluralism fostered by neutrality enriches public discourse and prevents the homogenization of ideas. Ultimately, the successful coexistence of the public sphere and the theory of neutrality can strengthen democracy and promote civic participation, provided that neutrality is accurately understood and actively applied to guarantee both justice and freedom in the public sphere.
Public Law
Mahin Sobhani; Alireza Bazri; Zahra Sobhani
Abstract
IntroductionAccording to Article (31) of the Constitution of the Islamic Republic of Iran, access to adequate housing is the right of every Iranian individual and family; the government is obliged to make this right a reality, with priority given to those in greater need, particularly villagers and ...
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IntroductionAccording to Article (31) of the Constitution of the Islamic Republic of Iran, access to adequate housing is the right of every Iranian individual and family; the government is obliged to make this right a reality, with priority given to those in greater need, particularly villagers and laborers. Based on this constitutional principle, securing access to housing has been a major concern of Iranian governments since the Islamic Revolution. Nevertheless, this goal has not yet been fully achieved. The right to housing (or the right to shelter) is recognized as an economic, social, and cultural right under Article (25) of the Universal Declaration of Human Rights and Article (11) of the International Covenant on Economic, Social and Cultural Rights. Some national constitutions, such as those of South Africa and Nigeria, explicitly affirm the right to housing as a fundamental right. In contrast, legal systems such as that of the United States largely omit such recognition, with the exception of a single state.This divergence reflects a broader debate over the nature and scope of the right to housing as a human right. Consequently, it cannot be treated as entirely analogous to civil and political rights, or even to other economic, social, and cultural rights. In Iran, the fulfillment of the right to housing—declared as one of the key commitments of the Thirteenth Administration—led to the enactment of the Housing Production Leap Act in 2021 (1400 S.H.). Under Article (10), executive bodies are obliged to transfer—free of charge—the lands under their control that fall within the scope of Article (6) of the Law on the Regulation and Support of Housing Production and Supply. These lands must be transferred in the name of the government and for the benefit of the Ministry of Roads and Urban Development. The obligations set forth in Articles (6) and (10) extend to all ministries, government institutions and agencies, as well as companies wholly owned by the state. Based on these provisions, the Ministry of Roads and Urban Development, relying on its own interpretation, has also moved to apply the law to lands administered by public universities. In this respect, several key question arise: notwithstanding Paragraph (a) of Article (49) of the Fourth Development Plan Act; Article (10) of the Law on the Goals, Duties, and Structure of the Ministry of Science, Research, and Technology; Paragraph (b) of Article (20) of the Fifth Development Plan Act; and Article (1) of the Law on the Permanent Provisions of the Country’s Development Plans, should universities be regarded as governmental entities subject to this obligation? Moreover, given the reference to the lands under the control of the government, does this not suggest a distinction between proprietary (private) property, on the one hand, and public property allocated by the state to executive bodies, on the other? Finally, can the government impose the obligation of free transfer even with respect to the proprietary assets of such entities? Literature ReviewSome scholarly works have examined the legal status of property held by Iranian universities or discussed the concept of the right to housing. For example, Tabatabai-Hesari and Safizade (2021) discussed the issue in their article titled “Public, Private or Governmental Nature of Public universities’ Real Estate in Jurisprudence of Administrative Court of Justice.” Moreover, in “The Justiciability of the Right to Housing in International Human Rights Law and the Iranian Legal System,” Moshrefjavadi et al. (2022) dealt with the right to housing in international and national laws. Contrary to the previous research, the present study is broader in scope and represents a novel contribution to the existing literature. Materials and MethodsThis article employed a descriptive–analytical method, drawing upon relevant legislation, judicial precedents, and existing legal doctrines, to address the aforementioned questions and clarify the ambiguities surrounding the laws. To this end, it first examined the objective and mechanism of implementing the Housing Production Leap Act, which mandates the free allocation of state-owned land to the Ministry of Roads and Urban Development for the purpose of housing construction. Accordingly, it was necessary to determine the legal nature of the lands in question. The study then turned to the specific legal framework governing public universities and analyzed the implementation challenges associated with university-owned property. Particular attention was given to judicial practice, especially rulings issued by the General Court of Fuman and the Court of Appeals of Guilan Province concerning the properties of the University of Guilan. Results and DiscussionThe primary mechanism envisioned for implementing the Housing Production Leap Act involves the free transfer of land owned by governmental entities to the Ministry of Roads and Urban Development, with the aim of redistributing these lands to households lacking adequate housing. From the outset, however, the law’s lack of clarity gave rise to significant ambiguities regarding its enforcement. Chief among these is the obligation of free transfer, which appears to conflict with the provisions of the Public Accounts Act. According to that Act, any transfer of state-owned immovable property must be approved by the Cabinet and must involve compensation; gratuitous transfers are explicitly prohibited. Furthermore, the Iranian legal system’s interpretation of the right to housing appears to diverge substantially from the core principles underlying this human right.The right to housing entails not only protection from arbitrary government interference but also the government’s obligation to prevent third-party intrusions into individuals’ homes. However, imposing a duty on a government experiencing severe budgetary deficits to transfer land or housing to individuals for free is neither economically rational nor consistent with human rights principles. Given the government’s limited resources, it remains unclear how such valuable assets could be allocated—even through discounted or installment-based schemes—especially when the criteria for identifying eligible beneficiaries are themselves ambiguous. ConclusionA major criticism of the Housing Production Leap Act concerns its application to lands held by public universities. Many of these lands were not allocated by the government, but were instead donated or transferred by private benefactors for specific educational purposes. Empowered with broad authority under the Act, the Ministry of Roads and Urban Development has, in numerous cases, proceeded to expropriate university lands across the country merely upon request and without conducting any proper site assessments. This approach stands in stark contrast to two rulings issued by the General Board of the Administrative Justice Court in 2021, which explicitly affirmed that university boards of trustees have full legal authority over the transfer and management of property owned by universities. Accordingly, the decisions rendered by Chamber Two of the General Court of Fuman and Chamber Seven of the Guilan Province Court of Appeals— which invalidated the actions of the local Roads and Urban Development Office regarding an eight-hectare plot donated to the University of Guilan—are fully consistent with the principle of financial autonomy of public universities over their proprietary assets.
Public Law
Salah Ghsemyani; Mohammd Reza Mojtehedi; Mohammd Mazhari; Syed Hussain Malkuti Hashjinmalakooti@
Abstract
IntroductionDecentralization has established itself globally as a preferred model of governance in today’s world. In this respect, the present article highlights the value of adopting a decentralized model of government that grants broad powers—not only in administrative matters but also ...
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IntroductionDecentralization has established itself globally as a preferred model of governance in today’s world. In this respect, the present article highlights the value of adopting a decentralized model of government that grants broad powers—not only in administrative matters but also in legislation—to citizens at the local level. In Iran, the question of local decentralization first emerged during the Constitutional Revolution through the creation of state and provincial associations. After the victory of the Islamic Revolution, these associations were replaced by local Islamic councils. Following the directive of the Revolution’s leader to the Revolutionary Council, the councils were given legal status even before the drafting of the constitution. Despite this historical background, decentralization in Iran still faces significant legal challenges. This raises important questions: Has a true system of local decentralization been established in Iran, given the constitutional provisions for state associations and local Islamic councils? What are the defining features of a decentralized system? What legal and extra-legal conditions are necessary to build such a system in Iran? To what extent can revisiting Iran’s past experience help us understand the challenges of that period? What steps should be taken to redesign Iran’s local decentralization model? And what solutions are needed to overcome its legal obstacles? Literature ReviewSo far, the issue of decentralization has been examined in many fields of the humanities, including public law, political science, and management. In this context, a number of legal studies can be noted. In “Pathology of Islamic Councils’ Powers from the Perspective of the Separation of National and Local Affairs,” Shamiri et al. (2022) examined the challenges faced by the councils in the constitution and ordinary law, particularly the failure to delegate sufficient duties and powers. They emphasized the need to revise the Guardian Council’s interpretive approach. Similarly, in their research titled “The Role of Comprehensive Decentralization in Realization of an Efficient Local Government,” Rahmatollahi et al. (2015) stressed the importance of transferring the maximum possible decision-making authority in both administrative and political affairs to citizens, as a means of establishing an effective and democratic local government.Gurji-Azandriani and Abolhasani (2016), in their study “The Role of the Council in the Management of Public Affairs: Decision-Maker or Decision-Shaper?” argue that in legal thought, Shura (or council) is defined as an institution with general powers for decision-making, decision-shaping, and oversight. However, the council, as a consultative institution in Islam, lacks authority beyond decision-shaping. They highlight problems and inaccuracies in labeling many institutions Shura (or council) within the political–legal system of the Islamic Republic of Iran, noting that diverse legal bodies have been labeled as Shura without a clear and consistent definition.Moreover, in “The Study of Qualification Vulnerability of Islamic Councils in Iran’s System of Law,” Moeinfard et al. (2019) emphasize that Islamic Councils neither possess sufficient powers nor benefit from a proper separation of national and local affairs in the laws. They add that varying interpretations by the Guardian Council, combined with these legal shortcomings, have prevented Islamic Councils from realizing their true potential and undermined their dignity and role. “A Comparative Approach to Local Decentralization in Iran” (Aghaei-Togh, 2018) focused on the functioning of councils and concluded that two of the three essential elements of local decentralization have not been incorporated into Iran’s legal system. Habib-Nejad (2009), in “A Legal Examination of Islamic City Councils in Light of the Principles of Decentralization,” used an analytical approach focused on both technical and geographical dimensions in order to examine decentralization and the shortcomings of Islamic Councils in Iran. Finally, in the Persian-language book Decentralization and Self-Management, Khobroy-Pak (2005) criticized the applicability of federalism to Iran, defending instead the constitutional principles governing the administration of provinces and localities. He calls for a re-examination of the solutions proposed by the framers of Iran’s first constitution for managing the relationship between the central government and local regions, arguing that new measures are necessary today. Materials and MethodsThe current study used a descriptive–analytical method to examine the issue of decentralization and its challenges in Iran. Moreover, content analysis was applied to analyze the data collected from various library and documentary sources. Results and DiscussionThe challenges of local decentralization in Iran have been analyzed across legal, interpretive, judicial, and structural dimensions. The first challenge concerns conceptual ambiguity regarding the status of councils, the lack of formal recognition of the decentralization system, and the absence of legal personality for territorial units in Iran’s constitution. In addition, the lack of explicit legislative authority, the failure to establish effective enforcement guarantees, and the incomplete adoption of local councils modeled on provincial associations represent further obstacles to the establishment of such a system. Another challenge arises from the Guardian Council’s conservative interpretation of the Constitution, which has relegated councils from decision-making bodies in governance to merely advisory and supervisory roles. A further challenge is the approach of the Administrative Justice Court as a judicial authority, which has frequently limited the powers of local councils. Finally, Iran’s deeply rooted centralized power structure, with its several-thousand-year historical background, has not readily embraced the culture of democracy or the distribution of power to local councils. Conclusion This research examined the policy of decentralization in Iran. A prerequisite for democracy in any country is the creation of a framework that guarantees freedom and enables people’s participation in local governments. Adopting a decentralization model by transferring local affairs to citizens and involving them in decision-making will not only strengthen citizenship rights but also enhance local participation. In conclusion, it is essential to revise and amend the Constitution, change the perspectives of the legislature and the Guardian Council, and reform the Administrative Court of Justice and executive bodies—especially the Ministry of Interior—regarding the role of councils. However, none of these measures alone can transform the country’s political structure and culture. Such change is only possible through the active presence of a developed and engaged citizenry. Although this process began with the experiences of the Constitution and the Islamic Revolution, it remains incomplete and must be further pursued.
Citizenship rights
Hadi Salehi
Abstract
Introduction The legal recognition of minority rights has become a central issue in contemporary societies grappling with increasing diversity. While some argue that legal recognition is essential to ensure equal protection and participation of minority groups, critics express concerns about its potential ...
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Introduction The legal recognition of minority rights has become a central issue in contemporary societies grappling with increasing diversity. While some argue that legal recognition is essential to ensure equal protection and participation of minority groups, critics express concerns about its potential drawbacks. Jeremy Waldron, a prominent legal and political philosopher, stands out as a leading critic of legal recognition, arguing that it can undermine core principles of neutrality, impartiality, and universal responsibility. Focusing on Waldron’s critique, the current study aimed to examine the threats and limitations he associates with minority recognition. The analysis also explored alternative perspectives and the broader context surrounding this debate. Literature ReviewThe literature on minority rights and legal recognition is vast and multifaceted. Liberal theorists such as Kymlicka advocate for multiculturalism. In Multicultural Citizenship: A Liberal Theory of Minority Rights, Kymlicka (1995) argues that legal recognition is crucial to ensure cultural accommodation and the flourishing of minority identities within liberal democracies. On the other hand, communitarian thinkers caution that multiculturalism may lead to social fragmentation and the erosion of a shared national identity. The legal scholarship has focused on the international legal framework for the protection of minority rights, emphasizing instruments such as the Framework Convention for the Protection of National Minorities. By contrast, critical race theorists critique the limits of legal recognition in contexts shaped by ongoing historical and racial injustice, calling instead for more transformative approaches to addressing systemic inequality. Materials and MethodsThis research employed a qualitative approach, relying on a critical analysis of existing literature on legal recognition and minority rights. The primary focus is on Jeremy Waldron’s arguments in The Law of Nations and the Problem of Difference (2001). In addition, the analysis also examined relevant scholarly works from legal, political, and philosophical perspectives. This allowed for a comprehensive understanding of Waldron’s critique within the broader debates on legal recognition. Results and DiscussionWaldron’s critique of legal recognition stems from his commitment to cosmopolitanism, which emphasizes universal moral principles and individual rights. He argues that granting special rights to specific groups based on their minority status can potentially undermine these principles and produce undesirable consequences. One of his central concerns is that legal recognition threatens the neutrality and impartiality expected of the state. When the state privileges certain groups, it risks appearing biased and eroding public trust in its objectivity. Waldron also argues that granting special rights to minorities can divert attention from the state’s fundamental responsibility to protect the rights of all citizens equally. By prioritizing group-based rights, the state may overshadow its obligation to ensure universal human rights protections. In addition, he suggests that legal recognition may be perceived as conflicting with the principle of majority rule in democratic systems. Because the majority’s voice carries significant weight in shaping laws and policies, recognizing minorities could be seen as undermining the majority rule, thereby fostering resentment among majority populations who feel neglected. While Waldron’s arguments present valuable insights, they can be challenged on several grounds. First, his analysis tends to assume a rigid model of legal recognition that grants absolute group rights, yet more nuanced approaches acknowledge the possibility of context-specific forms of recognition that aim to address systemic discrimination or ensure equal opportunities for participation. Moreover, his emphasis on neutrality may itself be problematic. Second, the emphasis on neutrality can be problematic. Ignoring group-based disadvantages and inequalities within a seemingly neutral system can perpetuate the marginalization of minorities, whereas recognition can function as a tool to redress existing power imbalances and promote genuine equality. Finally, it is important to note that Waldron’s arguments are situated primarily within the framework of liberal democracies. In societies shaped by different historical and cultural contexts, the role of the state and the meaning of minority rights may be conceptualized differently, and alternative models such as assimilation or consociationalism may be considered more relevant. ConclusionJeremy Waldron’s critique of legal recognition offers valuable contributions to the ongoing debate on minority rights. He highlights the need for careful consideration of the potential implications of legal recognition and the importance of upholding core principles like neutrality and universal responsibility. However, his arguments should not be understood in isolation. By engaging with alternative perspectives and acknowledging the limitations of his framework, it becomes possible to develop more nuanced approaches to legal recognition that respond effectively to the concerns of minorities in diverse societies.
International Law
Saman Shafiee
Abstract
IntroductionBody searches, especially strip and cavity searches, inherently violate human dignity and privacy. However, prisons often have no alternative means to prevent the entry of prohibited objects or substances. For this reason, international human rights institutions and documents have, in certain ...
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IntroductionBody searches, especially strip and cavity searches, inherently violate human dignity and privacy. However, prisons often have no alternative means to prevent the entry of prohibited objects or substances. For this reason, international human rights institutions and documents have, in certain circumstances, permitted their use. Nevertheless, these authorities emphasize specific guidelines regarding the methods of implementation, especially when applied to special groups such as children and patients. The present study aimed to examine the various methods of body searches and explore the legality and illegality of intrusive procedures, including strip and body cavity searches. It intended to delineate the boundaries of prohibited territory and identify circumstances that may constitute cruel, inhuman, or degrading treatment, or even torture. The analysis focused on the requirements and protective measures mandated by international human rights documents and institutions. These include ensuring that inspection staff are of the same sex as prisoners and detainees, preventing prison doctors from involvement in physical inspections, and addressing the psychological and physical vulnerabilities of children during such procedures. Finally, Iran’s domestic laws, regulations, and executive procedures in prisons and penal institutions were evaluated and analyzed in comparison with established human rights standards.Literature ReviewPersian-language books and theses have occasionally discussed this topic, but no research has specifically investigated the practice of body searches on detainees and prisoners or assessed whether Iranian domestic laws and regulations comply with international human rights standards. For this reason, the present study constitutes original research.Materials and MethodsEmploying a descriptive–analytical method, the present study drew on library and documentary sources to examine human rights instruments, declarations, resolutions, and other international documents—particularly the United Nations Standard Minimum Rules for the Treatment of Prisoners, as reflected in the Bangkok Rules and the Nelson Mandela Rules. Furthermore, it relied on the reasoning articulated in numerous judgments of the European Court of Human Rights, as well as the reports of the UN Special Rapporteur on Torture (CAT) and the European Committee for the Prevention of Torture (CPT), to extract the relevant human rights standards governing body searches. Ultimately, the study evaluated and analyzed Iran’s domestic laws and regulations in comparison with these international standards.Results and DiscussionInternational institutions, human rights documents, and the procedures of human rights courts have consistently examined the circumstances in which body searches of prisoners may result in cruel, inhuman, or degrading treatment, and in more severe cases, torture. However, no definitive or conclusive position has been established on this issue. The boundary between the legitimate need to maintain prison safety and security and the obligation to respect the human dignity of prisoners remains unclear. Institutions such as the European Court of Human Rights and the European Committee for the Prevention of Torture do not, by default, classify strip and body searches of prisoners as torture or cruel, inhuman, or degrading treatment. However, they acknowledge that if these actions are carried out in an extreme manner, they can lead to feelings of humiliation and degradation, thereby constituting inhuman treatment and, in certain cases, falling within the definition of torture under Article 3 of the European Convention on Human Rights. In Wainwright v. the United Kingdom (2006), the Strasbourg Court clarified the interpretative standards of Article 3 of the Convention. It held that maltreatment falls within the scope of Article 3 only when it reaches a certain threshold of severity. This threshold is relative and must be assessed in light of all the circumstances, including the duration of the treatment; its physical and psychological effects; and the victim’s sex, age, and health condition. The court emphasized that degrading treatment is incompatible with Article 3 when the suffering it inflicts exceeds the inevitable level of distress or humiliation inherent in lawful sanctions. Similarly, the Inter-American Court of Human Rights has ruled that certain invasive searches of women may amount to sexual violence and, owing to their severe consequences, constitute acts of torture. In the same vein, the United Nations Special Rapporteurs on Torture have underscored that strip or cavity searches conducted for a prohibited purpose, or carried out in a discriminatory manner that results in severe pain or suffering, can reach the threshold of torture.The two principal sets of Standard Minimum Rules for the Treatment of Prisoners—the Bangkok Rules and the Nelson Mandela Rules—permit strip and body searches only when strictly necessary and urge prison authorities to develop appropriate alternatives to intrusive searches. In light of international human rights instruments and standards, the three fundamental principles of legality, necessity, and proportionality serve as the essential pillars underpinning the legitimacy of body searches, particularly strip searches and internal body examinations. The landmark judgment of the European Court of Human Rights in Wainwright v. the United Kingdom constitutes a turning point in delineating the permissible boundaries of state interference with personal privacy. The Court held that the legitimacy of strip searches requires a clear legal basis, a legitimate aim, and compliance with the principles of necessity and proportionality. In the Canadian legal system, standards such as reasonableness and justifiability are recognized as key benchmarks for assessing the permissibility of such measures, with courts consistently stressing the need for specific and well-founded suspicion prior to authorizing them. In the United States, despite the absence of a coherent judicial approach, growing legal criticism and empirical evidence point to the inefficacy and harmful consequences of searches conducted without reasonable suspicion. Accordingly, adherence to the principles of legality, necessity, and proportionality constitutes the normative foundation for the legal and legitimate conduct of bodily searches under international human rights law.ConclusionIn all respects, human rights documents and institutions have not absolutely prohibited carrying out strip searches or cavity searches, but they do require that such practices be subject to certain considerations. Some international institutions, such as the Inter-American Commission on Human Rights, as well as several states, have taken a more sensitive approach by explicitly prohibiting intrusive searches or adopting measures to lessen their detrimental impact. In Iran, strip and cavity searches are essentially prohibited under prison regulations, except in cases where they are deemed absolutely necessary. Even in such circumstances, several considerations must be observed: the procedure should be carried out by trained personnel, conducted in private, performed without the use of cameras, and in full compliance with ethical principles and medical norms. One particularly important concern raised in international human rights documents—relevant to the reform of domestic laws and regulations—is the absence of specific provisions regarding body searches of children. To align with human rights standards, cavity searches must be explicitly prohibited in child protection policies, laws, and regulations concerning the treatment of imprisoned children under the age of eighteen.
Public Law
Seyed Naser Soltani; kazem Ahmadi
Abstract
IntroductionIt has always been a challenge to determine the institution or authority responsible for safeguarding the highest legal and political expression of a society, namely its constitution. The significance of this issue lies in the critical role of protecting the foundation of society. The constitution, ...
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IntroductionIt has always been a challenge to determine the institution or authority responsible for safeguarding the highest legal and political expression of a society, namely its constitution. The significance of this issue lies in the critical role of protecting the foundation of society. The constitution, as the embodiment of a society’s political and social unity, preserves its identity and cohesion. Accordingly, every political community and legal system, shaped by its worldview and prevailing ideology, has devised a method to protect its constitution. After gaining independence, Americans entrusted the judiciary with the protection of the constitution, establishing it as the guardian institution. This model became a template for other socio-legal systems. Alongside the American or Anglo-Saxon approach, a new model emerged based on the ideas of Hans Kelsen, an Austrian jurist. Kelsen’s model advocates assigning constitutional protection to an institution independent of political authorities, yet operating with a judicial approach. The Constitutional Court, first established in Austria, would serve as the guardian of the constitution, functioning like a judicial court by adjudicating constitutional disputes and issuing judgments. In contrast, Carl Schmitt, with his keen perception of political realities and his observations of the crises of the Weimar Republic in Germany, proposed a different path. Schmitt’s ideas, shaped by his critique of liberalism in law and politics, have often been described as undemocratic, authoritarian, or power-oriented. His explicit opposition to parliamentarism linked him to fascism and the Nazi Party. Skeptical of liberal ideals rooted in parliamentarism, Schmitt argued that the parliament and its fragile foundations had lost their effectiveness and could no longer be relied upon. For Schmitt, safeguarding the foundation—the cohesive political and social unity of society—is primarily a political task. Liberalism, by reducing politics to debate and discussion on one hand and transforming it into economic competition on the other, was no longer capable of fulfilling this role. Liberal principles, including parliamentary regime, pluralism, and party systems, had lost their effectiveness in protecting the foundation and had instead become major dilemmas in the polity. In response, Schmitt advocated entrusting the guardianship of the foundation to the president, a political figure who could remain above the self-serving conflicts of parliament and parties, and exercise decisive authority when necessary to prevent the destruction of the foundation. The present study aimed to examine Schmitt’s main criticisms of the parliamentary system of his era—rooted in liberalism, democracy, and party politics—and his reasons for rejecting judicial or Constitutional Court oversight as a means of safeguarding the foundation. An attempt was made to understand his concept of the guardian of the foundation (or the guardian of the constitution) more directly and precisely, without the distortions of historical accusations. The analysis focused the critiques of Carl Schmitt, the prominent German political theorist, regarding liberalism, democracy, and parliamentarism, exploring their implications for the protection of the constitution.Literature ReviewThere have been a few Persian-language studies discussing Schmitt’s views, primarily focusing on his theory of the concept of the political. However, with regard to Schmitt’s concept of the guardian of the constitution, there is only one research titled “The Guardian of the Constitution in Carl Schmitt’s Thought” (Moradkhani, 2021), which mainly provides an exposition and descriptive account of Schmitt’s theory. In contrast, the present article aimed to critically examine Schmitt’s theoretical and fundamental critiques of liberalism, explore their implications, and present Schmitt’s alternative paradigm for safeguarding the constitution.Materials and MethodsAs a descriptive–analytical inquiry, this study used a library research method to offer a critical analysis of Schmitt’s constitutional theory, in particular his concept of the guardian of the constitution. Results and DiscussionAccording to Schmitt, the foundation (or the constitution) is the manifestation of a nation with a distinct identity and of a comprehensive, all-encompassing statehood. This foundation arises from pure political processes and through political decisions, and its protection depends on specific conditions. Thus, the foundation is the very substance of the constitution, rather than the constitution itself, and cannot be safeguarded through purely legal measures. Given its inherently political nature, only an institution capable of political decision-making—and one removed from the partisan and economic conflicts of parliament and political parties—can serve as its guardian. From this perspective, Schmitt viewed the president of the Weimar Republic as a political figure who, despite being impartial in partisan and parliamentary disputes, was entrusted with safeguarding the most fundamental basis of German society and the unique identity of the German nation. Directly elected by the people, the president possessed the authority to make controversial political decisions—powers that parliament did not hold. Moreover, the protection of this foundation was so crucial that the president was expected to be willing to sacrifice everything for its continuity, including fundamental individual rights and constitutional principles of sovereignty. In his role as the guardian of the constitution, the president is therefore positioned above the constitution, exercising authority over it to protect the political existence of the nation. In Iran’s Constitution, particularly within the text of the constitution, there is an explicit reference to the protection of the constitution. One constitutional article assigns this role to the president, while another designates the Guardian Council as responsible. However, a careful examination of Schmitt’s concepts of the constitution and the guardian of the constitution reveals a significant distinction. In the Iranian constitutional system, the Guardian Council primarily serves as the guardian of the constitution. Its decades-long practice confirms that it has consistently pursued this role. In other words, the Iranian system conflates the foundation with the constitution itself, focusing on protecting the explicit, codified text from violations by other rules. While the Guardian Council was established to fulfill this function, its role is fundamentally different from Schmitt’s concept of the guardian of the constitution.ConclusionSchmitt was a staunch critic of the liberal approach to safeguarding the constitution, which he saw as lacking substantive political content and overly dependent on abstract legal principles. Instead, he advocated for a more decisive and politically charged role for the head of state, arguing that only such a figure could effectively defend the constitution during times of crisis. Schmitt’s critique was rooted in his fundamental opposition to liberal principles. He challenged the liberal notion of a neutral and objective state, contending that such a state is incapable of making the decisive political judgments necessary to protect the constitution. He also criticized liberal democracy, arguing that it produces a fragmented and indecisive political sphere, incapable of maintaining the unity and coherence of the state. Central to Schmitt’s analysis is his concept of the political, which he distinguishes from the realms of law and economics. According to Schmitt, the political is characterized by the fundamental distinction between friend and enemy—a distinction that becomes blurred and ultimately meaningless under the liberal framework. He maintained that the constitution, as the embodiment of the state’s identity, cannot be protected solely through legal mechanisms; it requires a strong and decisive political will capable of acting decisively in the face of uncertainty and conflict. Although highly controversial and widely debated, Schmitt’s ideas raise important questions about the nature of political power, the role of the state, and the mechanisms necessary for protecting the constitution in modern democratic societies.
Public Law
Zahra Ameri; Ahmad Khosravi; masoumeh Ameri
Abstract
IntroductionThe right to sexual education is an essential right for maintaining human dignity, independence, and individual value. It is also necessary for realizing and benefiting from other rights, including the right to health. Ensuring the fulfillment of this right is the responsibility of duty-bearers, ...
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IntroductionThe right to sexual education is an essential right for maintaining human dignity, independence, and individual value. It is also necessary for realizing and benefiting from other rights, including the right to health. Ensuring the fulfillment of this right is the responsibility of duty-bearers, who must meet their obligations so that individuals can benefit from it. Parents play an important role in this area; however, the primary responsibility, as part of the broader right to education, lies with the government. In Iranian society, as an example of a traditional and religious context, sexual education has long been surrounded by ambiguity. From a legal perspective, the government’s responsibility in this regard faces many challenges. In this respect, the current study aimed to explain the reasons for recognizing sexual education as a right, examining its status within both international documents and domestic laws in Iran. The innovative contribution of this research lies in its comprehensive review, analysis, and evaluation of domestic documents and laws related to sexual education in Iran. The central research question is as follows: How can the government, as the primary guardian of second-generation human rights, create the conditions necessary for realizing the right to sexual education for children and adolescents in Iran? Literature Review A review of existing studies in Iran shows that research on children’s sexual education has been conducted primarily from sociological and psychological perspectives. Within the legal framework, most studies focus specifically on child sexual abuse. One of the few articles that examines the child’s right to education with an emphasis on sex education reviews general laws governing education and, drawing on constitutional principles, highlights the government’s responsibility to develop comprehensive sex education content. It further emphasizes the role of the media, schools, and civil society organizations in presenting such content, and the role of families in its implementation. In “Jurisprudential Review of Children’s Sex Education With Emphasis on the 2030 Document of UNESCO,” Farahzadi et al. (2024) conducted a comparative study on this issue, analyzing UNESCO documents alongside Islamic jurisprudence and law. Their put a particular emphasis on the UNESCO 2030 Agenda; however, their study did not address national laws and regulations. Materials and MethodsAs a theoretical inquiry, the present study employed a descriptive–analytical method. Moreover, the library research was used to collect the data from various documents, books, and articles. Results and Discussion The issue of sex education and governments’ obligations to provide it has been emphasized in various international documents and recommendations. However, an analytical review of these documents reveals the emergence of a particular approach to sex education within the global legal system. Most of these documents emphasize the provision of school-based training to address AIDS and other sexually transmitted diseases, with the aim of equipping young people with essential knowledge before engaging in sexual activity. The focus is consistently on raising individual awareness, regardless of the type of sexual activity, while less attention is given to safeguarding the conditions of interpersonal relationships. Furthermore, many of these documents stress the education of children and adolescents in making free choices about sexual activity, often without reference to the legal or Sharia-based requirements of marriage. They recommend that sex education begin at the elementary level and continue throughout both formal and informal education. Most of these international documents also recognize premarital sexual relations, focusing primarily on health and physical well-being in sexual interactions—an approach that conflicts with the religious foundations of systems such as Iran’s. At the domestic level, it is clear that Iran’s legal system faces serious shortcomings in this area. Owing to traditional social norms, open discussion of sexual issues remains limited. Most existing regulations focus on the general education of children and adolescents about family life, while explicit reference to sex education is rare. Nevertheless, there remains a pressing need to provide children and adolescents with appropriate education on sexual matters. ConclusionIn Iran, the government should take serious action on the crucial issue of sexual education for children and adolescents by employing various mechanisms in two main areas: discourse creation and operational empowerment. The first step toward achieving this goal is to foster a culture within families that breaks the taboo surrounding sex education. If the government seeks to implement teachings that align with national and religious values, it must move beyond silence and instead uphold the right to sexual education in accordance with Islamic standards. Within this framework, the initial priority is to identify the responsible institutions tasked with providing and supervising the implementation of education. Formal education programs should serve as the foundation. At this stage, it is essential to design and implement processes for developing national sex education curricula that are both scientifically informed and socially acceptable, tailored to the developmental capacities of children at different educational levels. The next step is training and supporting educators and health professionals. The government, civil society organizations, and health providers should invest in equipping teachers, schools, and other educational actors with the necessary resources to deliver effective programs. A further key step is the design and implementation of structured, responsive evaluation systems to monitor and adjust sex education programs, ensuring their efficiency and effectiveness. Finally, there are considerable differences between international standards and the normative values upheld in Iran. It is thus necessary to approach global agreements with caution. Officials should avoid endorsing ambiguous or broadly interpretable documents. Instead, Iran should adopt a conditional approach, signing international agreements and documents only when they can be adapted to its cultural and social context.
Public Law
Mahdi Moradi Berelian
Abstract
IntroductionOne of the most significant contributions to the legal is the concept developed by Ronald Dworkin. His views on interpretation, ethics, human rights, politics, and the legal system form a unified framework, which is most clearly articulated in his later work Justice for Hedgehogs (2011). ...
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IntroductionOne of the most significant contributions to the legal is the concept developed by Ronald Dworkin. His views on interpretation, ethics, human rights, politics, and the legal system form a unified framework, which is most clearly articulated in his later work Justice for Hedgehogs (2011). These insights provide a valuable understanding of the nature of the legal. Teleological ethics, the value of humanity, and reason as a tool in the service of humanity, all form the common ground between Kant’s and Dworkin’s ideas. This perspective shifts the focus from moral–legal integrity to political integrity rooted in ethics, where equal concern and respect for individuals become central to governance. In turn, this opens a new perspective on the nature of governance. The present study tried to answer the following questions: What is the nature of the legal according to Dworkin? How does Dworkin’s conception of the legal relate to Kant’s idea of the inherent dignity of human beings? And what are the implications of adopting Dworkin’s approach to the legal and the moral for political issues and governance? Literature ReviewThere are few studies in Persian, but they do not thoroughly examine Dworkin’s legal theory in light of Kant’s ideas. Materials and MethodsThe present study employed a descriptive–analytical research method. In explaining Dworkin’s legal theory, it tried to provide a comprehensive analysis and demonstrate the Kantian foundations underlying his theory. Results and DiscussionDworkin argues that the legal system encompasses not only specific rules established through societal procedures but also principles that offer the most compelling moral justification for those rules. From this perspective, the concept of law is understood as an interpretive concept, and both the legal system and law itself are regarded as parts of political morality. A deeper understanding of Ronald Dworkin’s legal and political philosophy is achieved by recognizing Kant as a cornerstone of his thought. Indeed, Dworkin’s conception of law and politics cannot be fully grasped without reference to a Kantian or Neo-Kantian framework. In Justice for Hedgehogs (2011), Dworkin draws on Kant’s idea that true self-respect is expressed through equal respect for the humanity of all individuals, thus linking ethics with morality. This reflects Kant’s fundamental emphasis on moral lawfulness, which Dworkin highlights in his work. A more precise reading of Dworkin’s claim is that both individuals and political communities ought to act in accordance with principles that embody a morally appropriate conception of law. This corresponds to his notion of law as integrity, which echoes Kant’s moral imperative to act according to internal principles or general rules that take legal form and are objectively binding on all individuals. For Dworkin, the principles of human dignity consist of equal concern and equal respect. The principle of equal concern requires that no government can claim legitimacy unless it shows equal attention and concern for the well-being of every individual under its authority. The principle of equal respect requires that government honor each person’s right and responsibility to make informed choices about how to live their own life. ConclusionThe political implications of Dworkin’s ideas, which link legal integrity to political integrity, can be better understood in the context of Kant’s philosophy. Kant regarded humanity not as an end we create or produce, but as an end for the sake of which we act. To act for humanity as an intrinsic end requires adopting an attitude that properly acknowledges its value. Within Dworkin’s conceptual framework, humanity is precisely such an end—one that must be taken seriously. This necessitates treating it as the constraining factor of our pursuit of both immediate and ultimate ends. These limits establish acceptable principles of action that take the form of law, that is, systematic, comprehensive, and equally applicable to all in similar circumstances. This requirement or limitation is what Dworkin identifies as political integrity. A failure to act with integrity constitutes a failure to meet the formal condition of respecting human dignity. Integrity, in turn, serves the ideal of equality, under which all citizens should be subject to the same benefits and limitations arising from a coherent system of political principles. From a Kantian perspective, treating humanity as an intrinsic end requires aligning the actions and decisions of the political community with universal laws that express equal concern and respect for all individuals.
