Public and International Law
Hasan Mohammadi
Abstract
Research Problem and BackgroundThe constitution, as the foundational covenant of political order, has always been the site of a major confrontation between two predominant approaches in defining the limits and duties of the state: The neutrality-based (or rights-based) approach, which, grounded in the ...
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Research Problem and BackgroundThe constitution, as the foundational covenant of political order, has always been the site of a major confrontation between two predominant approaches in defining the limits and duties of the state: The neutrality-based (or rights-based) approach, which, grounded in the protection of individual rights, freedoms, and autonomy, confines the state's duty to securing the "right" (justice, security, public interests); and the perfectionist approach, which prioritizes the "good" (a specific conception of the desirable life and human flourishing), assigning the state a mission beyond providing material interests, making it responsible for the ethical guidance and cultivation of citizens toward perfection. The emergence of the modern constitution through liberal-democratic revolutions was based on the separation of the "right" (justice) from the "good" (virtue), the distinction between the public and private spheres, and reliance on constituent power (popular sovereignty) and individual rights. However, some contemporary systems, by incorporating specific conceptions of the good life (with religious or philosophical character) into their constitutions, have adopted a perfectionist approach. This raises the central question: Is such an approach compatible with the foundations of the public sphere (as the legitimacy-bestowing realm in democratic theories) and the requirements of the modern constitution? Relying on the ideas of Jürgen Habermas, the prominent social philosopher, this article analyzes this conflict.Research ObjectiveThe primary objective of this article is to analyze the relationship between perfectionist constitutions and the possibility of realizing the public sphere in its Habermasian sense. The author seeks to demonstrate that incorporating perfectionist foundations and ends into a constitution not only conflicts with the rights-based and autonomous foundations of the modern constitution but also, due to the merging of the public and private spheres and the negation of pluralism, theoretically and practically precludes the realization of the public sphere. Therefore, the article's ultimate conclusion is to prove the impossibility of the public sphere within political systems based on perfectionist constitutions. Research MethodThis research employs a descriptive-analytical method, relying on library resources (Persian and English books and articles). The methodology is based on conceptual and comparative analysis. First, the key concepts of the "public sphere," "discourse ethics," and "perfectionism" are explained and examined by referring to the ideas of Habermas and other thinkers. Subsequently, the foundations of the modern constitution and the requirements of constitutional perfectionism are investigated. Finally, by comparing and evaluating the principles of these two domains, their relationship and the consequences of this conflict are analyzed.Findings of the ResearchThe research findings are presented in several main areas:Foundations and Function of the Habermasian Public Sphere: The public sphere is an intersubjective realm, independent of the state and the private sphere (market and family), in which free and equal citizens, in a space free from coercion and based on rational discourse and argumentation, discuss and deliberate on public matters. The output of this discursive process (norms and public opinion) influences the political system through institutions like parliament, bestowing rational legitimacy upon it. In Habermas's thought, the legitimacy of law and the political system is not intrinsic but discursive, dependent on its continuous confirmation by this sphere. Discourse ethics, with conditions such as freedom, equality, universal participation, and the exclusion of exclusion, specifies the procedural framework of this realm.Foundations of the Modern Constitution: The modern constitution is founded upon individual rights, autonomy (private and public), the constituent power of the people, and the separation of right from good. Justice (the right) belongs to the public sphere (regulating social relations), and the good life (the good) belongs to the realm of private individual choice. The modern state, in its ideal form, is neutral towards diverse conceptions of the good, providing only a legal framework for the peaceful coexistence of these plural conceptions.Nature and Consequences of Perfectionism in the Constitution: The perfectionist approach, with the primacy of the good over the right, seeks to obligate the state to guide society towards a specific "good life" (often derived from a religious or philosophical ideology) by defining it. In constitutions, this leads to the reduction of rights within the framework of that conception of the good and the transformation of the state into a societal tutor. The perfectionist state considers itself to possess "absolute truth" in recognizing human flourishing and deems itself responsible for its practical realization.Fundamental Conflict: The article's analysis reveals a structural and irreconcilable conflict between the foundations of constitutional perfectionism and the requirements of the public sphere:Negation of Pluralism and Freedom: Perfectionism, by insisting on a single narrative of the good, disregards or rejects ethical pluralism (a necessary condition for the public sphere).Merging of Spheres: By introducing the "good" into the realm of public legislation, this approach dissolves the fundamental distinction between the public sphere (right/justice) and the private sphere (good/virtue).Negation of Autonomy and Equality: By defining citizens based on adherence to the ruling ideology, the intrinsic equality of participants in discourse and their individual autonomy are called into question. Having a right is reduced to being right (in accordance with the model of virtue).Elimination of the Public Sphere: Under these conditions, the public sphere either does not form at all, or if it does, it is immediately absorbed and dissolved into the state sphere (which considers itself the embodiment of truth and the good). Instead of being supervised and influenced by the public sphere, the state legislates comprehensively across all spheres of life.Crisis of Legitimacy: By eliminating the public sphere as the continuous source of legitimacy-bestowal, the political system based on a perfectionist constitution faces a legitimacy crisis, as it cannot genuinely reflect the free will and discursive participation of the people.ConclusionThis article concludes that the possibility of realizing the public sphere in its Habermasian sense within the framework of perfectionist constitutions does not exist. Incorporating perfectionist concepts into the modern constitution creates an internal contradiction, as it places the rights-based and autonomous structures of the modern constitution in the service of an end inherently opposed to its foundations (separation of right from good, state neutrality, pluralism). This not only leads to the reduction of individual rights and the negation of autonomy but also, by merging the public sphere into the state and erasing the private/public boundaries, disables the sole rational and discursive source of legitimacy in complex modern societies. Therefore, the public sphere, which guarantees the dynamism, accountability, and legitimacy of constituted political systems, is doomed to impossibility within the perfectionist approach to constitutionalism. This research demonstrates that attempts to synthesize these two paradigms will come at the cost of losing one of them (primarily the public sphere and discursive democracy).
Public and International Law
Ayat Mulaee; Maedeh Soleymani Dinani
Abstract
Introduction
The constitution, by establishing the fundamental structural and procedural principles of government, defines the supreme law of a given polity (Boudreaux & Pritchard, 1993:11). Every theory of constitutionalism presupposes that a constitution must be capable of functioning over a relatively ...
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Introduction
The constitution, by establishing the fundamental structural and procedural principles of government, defines the supreme law of a given polity (Boudreaux & Pritchard, 1993:11). Every theory of constitutionalism presupposes that a constitution must be capable of functioning over a relatively long period of time. The notion of constitutional endurance is closely intertwined with key normative issues such as constitutional amendment. The very idea of constitutional amendment arises from the premise that no generation possesses the exclusive wisdom to bind future generations irreversibly or to design a constitution immune from failure. Consequently, there exists an inherent right to amend the constitution to remedy its deficiencies and to strengthen its principles when necessary (Hatchard, 2004:44–45).
Amendment provisions, as one of the essential pillars of constitutionalism, enable the constitutional text to evolve gradually, addressing the shortcomings of its initial design and responding to emerging challenges within the constitutional order (Albert, 2015: 656). The primary means of revising a constitution is the formal procedure explicitly set forth within the document itself. The more fundamental the proposed changes, the more essential recourse to formal procedures becomes (Assefa, 2012:103).
However, formal amendment rules often render constitutional change exceedingly difficult, and experience demonstrates that the politics of constitutional revision are highly contentious. Accordingly, most scholars acknowledge that constitutional change is not achieved exclusively through formal amendment procedures; in some instances, it occurs informally (Anderson, 2008: 59). Where the formal path to amendment proves arduous or obstructed, alternative routes become available to political actors to achieve its practical equivalent (Albert, 2014: 1062).
It may thus be argued that informal amendment practices play a significant role in reconstructing the constitution and reshaping its meaning in response to subsequent developments. The most accurate account of a constitution’s evolution must therefore consider not only formal amendments but also informal transformations. Only through this dual lens can one attain a deeper understanding of a state’s constitutionalism (Besso, 2005:84).
Recognizing the importance of informal constitutional change within the field of constitutional law, this paper explores the concept of constitutional amendment to clarify the nature, foundations, and legitimacy of informal constitutional transformation. Particular attention is devoted to the process of constitutional interpretation as a mechanism capable of functioning as a form of informal amendment. The central question addressed in this study is: despite the explicit provisions governing formal amendment in written constitutions, what are the functions and implications of informal amendment and constitutional interpretation? To answer this question, the paper adopts a descriptive–analytical approach—first examining the concept and dimensions of constitutional amendment, and then analyzing the interpretive role of the official constitutional interpreter and the processes through which informal constitutional change occurs.
Literature Review
Although several distinguished Iranian scholars—such as Habibzadeh and Mansourian, in their article “An Analysis of Constitutional Change Beyond the Formal Amendment Procedures Prescribed Therein,” and Morad Khani, in “Informal Constitutional Change: Foundations, Instances, and Approaches”—have addressed the possibility of constitutional change through means other than the formal amendment process enshrined in the constitutional text, the crucial role of constitutional interpretation in facilitating such informal change has not yet been seriously examined within domestic scholarship.
Research Objective
The present research seeks to understand the importance of discussions on informal constitutional change in constitutional law. It aims to examine real, yet unwritten, changes to the constitution—particularly those arising from the interpretation process, which bypasses the formal amendment procedure and cannot be justified through it—and to clarify the basis for the legitimacy of such changes.
Methodology
This research, by studying various domestic and international books and articles, has collected materials through library research and note-taking. It examines the subject using a descriptive-analytical method.
Findings and Conclusion
Although the formal amendment mechanism is a vital necessity for constitutional reform, the role of informal procedures in changing the constitution's content is so significant that they may even render formal amendment procedures irrelevant in determining the constitution's actual content. Dynamic interpretation, as a common method of adapting the constitution to contemporary developments, without formal stages or changes to the text, reveals hidden sub-textual and pre-textual layers not visible in the written document itself. This leads to informal change and amendment of the constitution. Consequently, the interpreting authority plays a crucial role in constitutionalizing procedures and institutions outside the constitution that have been created by the political branches. Interpretation is one of the informal methods of constitutional amendment, through which the interpreter links the written constitutional text to its unwritten layers. In this process, it is inevitably influenced by political practices and attempts to harmonize the text with the political realities of society. Political practices, by being reflected in the opinions and interpretations of the interpreting authority, take on a legal color and appear more justified.
In the Iranian constitutional system, the Guardian Council, with the aim of ascertaining the legislator's intent and discovering the essence of the constitution, introduces unwritten aspects of the constitutional principles that are not encompassed by the explicit text. Thus, through its official interpretations and without changing the written document, this authority, by unveiling the unwritten layers of the constitution, has paved the way for its change outside the formal process stipulated in Article 177 of the constitution—that is, informally. Since, in our constitutional system, interpretation is tantamount to the constitution and holds an effect and status similar to that of the written constitutional text, the interpreting authority, by granting constitutional status to an unwritten principle or practice without engaging in the difficulties of the formal amendment process, brings about informal constitutional change through the gateway of interpretation. Given the constitutional binding nature of interpretation in the Iranian constitution, these changes become part of the constitutional system and are treated as valid and binding.
Although changes that are the unconscious product of the constitution's dynamic system and subsequently gain the approval of political actors and the people can be considered valid, changes that are carried out by circumventing the difficult legal procedures call into question the wisdom of the original constitution-maker in dedicating a specific article to revision—aimed at preventing its arbitrary application and preserving the constitution's stability. Therefore, it is essential to distinguish organic interpretations, which arise from the complex interaction of forces among the different political branches of the government, from unreasonable interpretations that, by granting extra-legal and unlimited authority to certain institutions, disrupt the system of checks and balances and seriously conflict with the purpose of the text. Any change to the constitution must be labeled as legitimate and legal only after cautious and meticulous scrutiny, so that while allowing for the logical evolution of the constitution and its adaptation to conditions and the times, the endurance and integrity of the law are not undermined, and the path for any misuse is blocked.
Thus, although the amendment process serves an important practical purpose—namely, changing the constitutional text whose errors have been revealed over time and through experience—the prevalence of informal amendments may, in the future, nullify their usefulness. Furthermore, it is essential that the aspects of change in the constitutional system are considered sufficiently important and fundamental to determine the true scope of the constitution. Therefore, such a phenomenon must be approached with caution.
Political Thought
Sadegh Saffarzadeh; Mohammad Javad Gholam Reza Kashi
Abstract
IntroductionHistorians and political scientists have long debated the key influences of the Founding Fathers of the United States in establishing the government and drafting the Constitution. Thinkers like John Locke, Montesquieu, Algernon Sidney, and James Harrington are frequently cited, yet the influence ...
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IntroductionHistorians and political scientists have long debated the key influences of the Founding Fathers of the United States in establishing the government and drafting the Constitution. Thinkers like John Locke, Montesquieu, Algernon Sidney, and James Harrington are frequently cited, yet the influence of Machiavelli’s ideas has often been overlooked. Only a few scholars, such as Walter McDougall and John Pocock, have briefly suggested the possibility that the Founding Fathers were influenced by Machiavelli’s ideas, while others, like Anthony DiMaggio, have approached the topic solely from the perspective of foreign policy and empire. Given Machiavelli’s significance as a political theorist, it is crucial to explore his potential influence on the Founding Fathers’ thoughts in establishing the American Republic. Such an examination is important because it reveals how Machiavellian principles may have shaped state-building efforts and contributed to the stability and longevity of the U.S. government and constitution.Materials and MethodsThe present study used a qualitative, text-based documentary approach and analyzed library–documentary sources to demonstrate how Machiavelli’s ideas had influenced the views of the Founding Fathers. A close examination of Chapters 2–8 of The Discourses: Book 1 was conducted to reveal Machiavelli’s influence. These chapters are considered essential because they focus on the organization of political regimes. Four of these chapters are particularly significant, as they directly address the prudent establishment of a regime and constitution, offering guidance to future founders.Results and DiscussionThe analysis revealed that the Founding Fathers were significantly influenced by Machiavelli in their understanding of human nature and the formulation of the constitution. They drew on his ideas to create a mixed regime. The Founding Fathers were also guided by Machiavelli in their approach to foreign policy, their pursuit of empire, and their definition of the role of the people as defenders of freedom and guardians of the constitution. Consequently, some of the most fundamental aspects of the United States of American were rooted in Machiavelli’s theories and perspectives, even if they were not openly acknowledged. The durability and stability of the U.S. Constitution, in contrast to the instability and variability of the French Constitution, can be attributed to the Founding Fathers’ reliance on the insights of a thinker who had gained his wisdom through “long experience of modern things and the continuous readings of ancient [things]” (Machiavelli, 1989, p. 1); who had opposed fictitious principalities and republics that existed only in theory (Ibid, p. 93). In contrast, the French pursued abstract concepts and implemented purely theoretical ideas, guided by a philosopher whose “true masterpiece” was referred to as “Reveries of the Solitary Walker” (Rousseau, 1782, p. 12). The utopian republic they aimed to establish had to remain a mere figment of the imagination. According to the findings, ConclusionAccording to the results, the Founding Fathers’ views aligned with and were shaped by Machiavelli’s theories. The findings can provide a new foundation for American studies and Machiavelli studies, and pave the way for further research. Given that the theoretical foundations underlying the establishment of the United States of America have been neglected in academic discussions in Iran, the present study can be considered a pioneering effort to address the Founding Fathers’ thoughts and the influence of other philosophers on the establishment of the U.S. government. Furthermore, by focusing on the founding principles of America, the results of the study can lead to a more realistic approach toward the U.S. and the adoption of more thoughtful strategies in foreign policy. This study does not claim that the Founding Fathers relied solely on Machiavellian theories while disregarding other intellectuals. Rather, it aimed to demonstrate that dismissing or denying Machiavelli’s influence on the establishment of the United States is both unjustified and unwise, despite the Founding Fathers not explicitly referencing his ideas. Nevertheless, by focusing on two fundamental texts, the present inquiry sought to provide meaningful insights without undermining the results. A more precise and detailed understanding of the topic requires an examination of numerous documents and extensive debates that took place during the Constitutional Convention until the adoption of the Constitution in the thirteen state assemblies.
Political Thought
Kioomars Ashtarian
Abstract
Analyzing the structure of Constitutional law in the Islamic Republic of Iran can be used to identify the capacities of amending the Constitution and redefining the Iranian governance system. This article, with an institutional-normative approach, seeks to show the theoretical capacities of the constitutional ...
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Analyzing the structure of Constitutional law in the Islamic Republic of Iran can be used to identify the capacities of amending the Constitution and redefining the Iranian governance system. This article, with an institutional-normative approach, seeks to show the theoretical capacities of the constitutional movement on the one hand and the capacities of Mantaghato-laugh (Free area of Islamic regulation) on the other hand to review the Constitution of the Islamic Republic. In Iranian governance, the distortion of the national division of institutional tasks in the form of bureaucratic-tribal monarchy has been widespread in the governance structure. As such, the structural differentiation of social spaces, which leads to the logical separation of religion from public policies, has been ignored. This is while the concept of a “Free area of Islamic regulation” gives general directions to public policies that can return powers and duties to the people, to the government, and the parliament without compromising the legitimacy of the political regime. This article has several theoretical pillars that are used synthetically in connection with the main finding of the article. 1) order and power, 2) separation of powers, 3) legitimacy, 4) unity of religion and politics, and 5) constitutional orientation of public policy making. The main point of the article is that the theoretical capacities of these 5 pillars can be useful for analyzing the structure of the Islamic Republic of Iran's Constitution and revising it. First, with a normative approach, we have discussed the right to exercise power and the separation of powers (the first and second theoretical pillars). The fact that the constitution guides the operation of political societies is born from the idea that the government must protect the fundamental rights of individuals. The fundamental rights have a technical dimension that organizes the exercise of power and therefore creates limitations for the exercise of power. That is why separation of powers is considered a tool against abuse of power, prevention of tyranny, and a factor of national self-actualization, and according to Montesquieu, there will be no freedom without separation of powers. In terms of the third theoretical pillar of this article, it has been discussed that the relation of legitimacy and efficiency are closely intertwined in Iranian governance. In the Constitution, there are several principles that not only determine the direction of the policy-making systems but also lay the foundations of an interventionist government with full responsibility for the welfare of the citizens. As a result, public policies take into account the legitimacy of the political system, and in practice, the legitimacy of the political regime depends on its efficiency. This phenomenon has found an ideological facet in the shadow of the theory of Unity of religion and politics. With regards to the relationship between religion and politics in the Islamic Republic (the fourth pillar of the article), we are facing two aspects of political jurisprudence theory and legal tradition, which appear to be aligned but at the same time can be contradictory. On the one hand, legitimacy refers to the divine sovereignty over the world, and it is embodied in the Islamic Republic's Constitution. On the other hand, for some “official” theorists of the last two decades, this divine sovereignty has led to the acceptance of an approach called the theory of “discovery” and “designation”, which we call "revelation legitimacy". This revolutionist approach, in its essence, makes the legal processes of the constitution irrelevant, which means that at first, it reduces the role of experts to a passive role in the designation of Leader. The fifth pillar of the article deals with the "basic rules of public policies" and the issues of political structure related to public policies. The importance of this article is that it allows freedom of public policy-making to the citizens.
Political Thought
Ali Babaei; Kamal Pouladi
Abstract
AbstractExamining the special place of Mirza Taghikhan Amirkabir in the contemporary history of Iran requires attention to his perception of the "Janus face of modernity". According to historical sociology, modernity has a dual and interconnected nature, whose positive, civilizational or objective aspect ...
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AbstractExamining the special place of Mirza Taghikhan Amirkabir in the contemporary history of Iran requires attention to his perception of the "Janus face of modernity". According to historical sociology, modernity has a dual and interconnected nature, whose positive, civilizational or objective aspect emphasizes the development and progress of civilizational, economic, scientific and technical elements, and its psychic, subjective and subjective aspects emphasize the importance of achievements. Cultural, corresponding to the freedom of mankind, equality, democracy, pluralism and law, which is manifested in the philosophical language of Kant and Hegel in the concept of "reason itself". In this article, we are going to find out how Amir Kabir, as the great reformer of our society, has thought about the relationship between the elements of modernity. Has Amir Kabir believed only in the positive and industrial aspects of modernity, or has he become aware of the importance of its cultural aspects, including the "law"He has gained faith to the same extent as his predecessors Qaim and Abbas Mirza? The rule of Amir Kabir with the beginning of the reign of Nasser al-Din Shah Qajar in 1230 AH is accompanied by extensive changes Our hypothesis is that Amir Kabir's emphasis on the "fantasy of constitutionalism" reflects his understanding of the need to apply the dual achievements of modernity. Accordingly, We have critically examined the place of "law" in his intellectual and practical system.
Ayat Mulaee
Abstract
In the constitutional law of any country, constitutional reform is one of the ways out of legal barriers, as a result, there may be changes in the power of senior officials. In Iran, in 1989, constitutional amendments were made the result has been a shift in some of the powers of senior government officials ...
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In the constitutional law of any country, constitutional reform is one of the ways out of legal barriers, as a result, there may be changes in the power of senior officials. In Iran, in 1989, constitutional amendments were made the result has been a shift in some of the powers of senior government officials and it is worthwhile to address it from the point of view of constitutional law. Among the institutions that were reviewed in the mentioned reforms; it was the "presidency." The present article seeks to answer this question: What are the most important legal reasons for deprivation of the dignity of the Presidency of the "President" in the structure of the 1989 amended constitution? In answer to this question, using the research method: descriptive-analytical, the research results indicate that first; The dignity of the "presidency" was lost as a result of these reforms. Secondly; Due to the persistence of the institution of "presidency" in the constitutional logic, it is erroneously assumed that in these amendments, the institution of the "Prime Minister" was removed and his powers were transferred to the President However, what actually happened was the removal of the "presidency" institution and in this sense, the wording of the constitution needs to be amended.
Javad Taghizadeh; Samaneh Taghizadeh Chari
Abstract
Article 87 of the 1358 Constitution made the prime minister responsible for forming the Council of Ministers and obtaining a vote of confidence from parliament. After the approval of Article 1 of “the law on adding articles to the code of procedure of the parliament about requesting the vote of ...
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Article 87 of the 1358 Constitution made the prime minister responsible for forming the Council of Ministers and obtaining a vote of confidence from parliament. After the approval of Article 1 of “the law on adding articles to the code of procedure of the parliament about requesting the vote of confidence and the manner of holding it” in 1363/ 5/9, the prime minister was obliged to request a vote of confidence from the parliament both at the beginning of each term of the parliament and in the conditions stipulated in Article 87, after the formation and introduction of the Council of Ministers. In addition, the Council of Ministers was formed based on political will of parliamentary majority. This indicates that the vote of confidence to the ministers follows the parliamentary logic of the political system. After 1368 revision of the Constitution, president made responsible to obtain a vote of confidence for the Council of Ministers after being formed. By stating that “with the change of the parliament new vote of confidence will not be necessary” in Article 133 and removing the post of prime minister, the political system approaches the presidential system. The practical procedure of vote of confidence, after the revision of the Constitution, also confirms the adherence to the logic of the presidential system.
Mehdi Faraji; Behzad Ghasemi
Abstract
After the formation of critical discourses against the current situation in the Qajar period, most of them attacked the authoritarian regime and called for the transition from tyranny to the rule of law. Eventually, the constitution became the main critic's claim, and the constitutional order was issued. ...
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After the formation of critical discourses against the current situation in the Qajar period, most of them attacked the authoritarian regime and called for the transition from tyranny to the rule of law. Eventually, the constitution became the main critic's claim, and the constitutional order was issued. However, at the stage of drafting the constitutional amendment, constitutionalism was considered by shariatians to be contrary to sharia and thus faced a major challenge.The Habl-ol- matin, which had been promoting constitutionalism since many years ago, with secular explanations, after the challenge, changed its position and promoted constitutionality based on the idea of separating sharia from the custom.The basic question of the article is that Habl-ol- matin explained the idea on the basis of what basis and purpose?The findings of the research on the basis of the descriptive-explanatory method show that after the constitution was considered to be contrary to sharia, this publication regulates its secular explanation of constitutionalism on the basis of the jurisprudential permission of the Scholars of Najaf on the necessity of the separation of the sharia from the custom at the time of the absent, and as a way of linking the thinking of the modern state and sharia.
Alireza Dabirnia
Abstract
The nature of the nation practice (nation-state) in creating and amending a constitution is usually measured by two legal and political perspectives: In the legal approach, this jurisdiction is defined within a legal system, but in the political approach the jurisdiction is considered to be the basis ...
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The nature of the nation practice (nation-state) in creating and amending a constitution is usually measured by two legal and political perspectives: In the legal approach, this jurisdiction is defined within a legal system, but in the political approach the jurisdiction is considered to be the basis of the constitution and the power of government derives exclusively from the political will of the nation. It appears that the Constitutional Review Council was constituted in 1989 on the basis of the political theory of "political will of the nation as the foundation of the Constitution" and that the nations ‘intended reforms was done because basically no right was included for the nation to amend the constitution in 1979. The main purpose of the present study is to examine the theoretical foundations of the competence of the nation in drafting and amending the constitution; what is more, the results of this research can be considered as one of the political theories of government in Iran. The research method is descriptive-analytical and the research question is "On what basis and the theory of the 1979 constitution has been revised and amended"? It can be argued that the constitution is credited with a basis called the political will of the nation
Alireza Asadpour Tehrani; Masoud Raei Dahaghi
Abstract
Due to the developments in social relations in modern societies, and in particular the importance of restrictions on the political power of governments, the rule of people and the protection of individual rights and public freedoms as the foundations of constitutionalism and constitutional rule, it seems ...
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Due to the developments in social relations in modern societies, and in particular the importance of restrictions on the political power of governments, the rule of people and the protection of individual rights and public freedoms as the foundations of constitutionalism and constitutional rule, it seems to be necessary to introduce a new category of basic laws that are more consistent with modern constitutional rights and constitutionalism. Thus, all classical categories of constitutional laws are briefly introduced and criticized, and then a new categorization of basic laws to the liberal constitution and republican constitution is proposed and explained. As a result of this division, the state can be liberal or republican, but in the present time, both types of modern states must be constitutional. Of course, the republican holds this supremacy over the liberal state, which governs the protection of public freedoms. This essay is based on a fundamental assumption: the emphasis on the constitutional positivist concept. Since, the classical classifications are based on the inductive method; accordingly, the same method has been used to criticize and propose the alternative.
Ali-Akbar Gorji; mohammadshahab jalilvand
Abstract
Islamic Republic of Iran is a state with unique features in the present time that the matching characteristics with the characteristics of the modern state, there are many opinions dispersed. The modern state, which has its roots in the history of the West, has 10 features that distinguish it from pre-modern ...
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Islamic Republic of Iran is a state with unique features in the present time that the matching characteristics with the characteristics of the modern state, there are many opinions dispersed. The modern state, which has its roots in the history of the West, has 10 features that distinguish it from pre-modern states. Meanwhile, the Constitution is an essential characteristic of the modern state That means adherence to the constitution. Therefore, the theory of constitutional government emphasizes that the the government is basically guardian of order based on the constitution 's power structure and the structure of power in all its aspects should be based on the constitution. This article tries to comment on the constitutional criteria, in the characteristics of the modern state, and the state's political power structure in the Islamic Republic of Iran in this respect will be reviewed and concludes that although in cases such as: the structure of representation, separation of powers, rule of law and the judicial process of securing the Islamic Republic of Iran, there are roots of the development of a governance structure based on the constitution, but with a little reflection on some of the principles of the constitution and also delving into some practice, it is observed that in the context of community governance, constitutional ambiguities of criteria has occurred.
Khalil Sardarnia; Hosien Mohseni
Abstract
Intellectuals are one of the important efficient social forces in political processes and policy making at sovereignty level. Besides they are one of the important and influential reference groups that give shape to public opinion. In Iran in 19 century, with civilizational collision ...
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Intellectuals are one of the important efficient social forces in political processes and policy making at sovereignty level. Besides they are one of the important and influential reference groups that give shape to public opinion. In Iran in 19 century, with civilizational collision with the West was shaped the intellectual mainstream under the impacts of Iran’s socio-political developments. In this research, the authors try to explain the reasons and factors of intellectual’s transition from democratic ideas and beliefs to the idea of authoritative state in two time periods of constitutionalism and Pahlavi by using explanative method and knowledge sociology and romanticism. In response to this question, it must be told that in this metamorphosis rooted in socio-political factors in constitutional age such as political anarchy, Protorianism, national sovereignty crisis, non-realization of democratic ideals and principles and public tiredness of socio-political turbulence. The finding of this article shows that the intellectual mainstream in the beginning years of constitutional revolution and its critical situation came to this conclusion that in the absence of authoritative state or government as a main motivation for development, there would be no hope for national sovereignty and development and additionally without authoritative stability, liberties lead to anarchism and national humiliation.
