Comparative Law Review

Comparative Law Review

The moderate extent of the functioning of the law in the general law of ‎Iran and the West “government or sovereignty”‎

Document Type : Research Paper

Authors
Ayat Mulaee
Farshid Bandehali
Mohammad Mazhari
Syed Hussain Malakooti Hashjin
Department of Law, Faculty of Law and Social Sciences, University of Tabriz, Tabriz, Iran‎
10.22059/jcl.2023.355303.634473
Abstract
Examining the process of constitutionalism in Iran shows that the intellectual currents and thoughts related to the law and legalism of that time, not only could not limit the power of the law-abiding system of the monarchy, but it was also the tyranny that With relatively long survival after the constitution, it blocked the way for any evolution and maturity of the fundamental concept of law and its place in the control of government affairs. The debate that finally ended with the collapse of the authoritarian system after the Islamic revolution has left this tradition of thought, which is the main specialty of the Legislative Assembly in general issues of society. However, by reflecting on the contemporary jurisprudential thoughts as well as the intellectual developments of recent centuries, the concept of law in the West can be seen that the rule of law no longer means that the legislator wants to enact any law, nor necessarily any text that The approval of the legislator is called a law. Therefore, assuming that there is a significant difference between the intellectual thoughts of the constitutional era and the current public law in relation to the concept and functional scope of the law, the conducted research tries to analyze the related documents and information data using the method libraries have been collected, to this question that in the public law of our country, to what extent is the interference of the law in controlling the authorities of the government, and basically, how far is the moderation of this interference? Give a logical answer.
Keywords
Constitution
intellectuals
‎law
monarchy
‎parliament.‎
Subjects
  1. Abbasi, Bijan, Yagoubi, Reza (2018). The Concept of Law in the Thoughts of Mishtar al-Dawlah. Public Law Studies Quarterly, 50, (1), 59-41. (In Persian)
  2. Abrahamian, Yerevan (2009). Iran between two revolutions, from the constitution to the Islamic revolution. 14th edition, Tehran: Center Publishing. (In Persian)
  3. Adamit, Fereydoun (1982). Amirkabir and Iran. Tehran, Publisher: Kharazmi Publications. (In Persian)
  4. Admit, Fereydoun (1971). The idea of progress and the rule of law - Asr Sepehsalar, Tehran, Publisher: Kharazmi Publications. (In Persian)
  5. Admit, Fereydoun (1976). Ideology of Iran's Constitutional Movement. Tehran, Publisher: Payam Publications. (In Persian)
  6. Al Mohammad, Seyyed Mohammad Ali, Nowrozi, Qadrat Allah, Tosali Naini, Manouchehr (2018). Principles of epistemology of the rule of law in Iran's legal system. Theological Research Journal, 9, (33), 72-53. (In Persian)
  7. Ameri Golestani, Hamed (2021). Justice and law in the thought of advanced modernists in Qajar era Iran. Journal of Political Science, 16, (3/63), 149-182. (In Persian)
  8. Ameri Golestani, Hamed (2023). The experience of political law-writing in the Nasrid era: a discourse analysis. Journal of Country Studies, 1, (1), 31-66. (In Persian)
  9. Amini-Pajoh, Hossein, Kaabi, Abbas (2016). In search of the theory of legislation in the works of some contemporary jurists of Imamiya. Islamic Government Magazine, (1/87), 57-84. (In Persian)
  10. Austin, John (1832). The Province of Jurisprudence Determined.W. Rumble (ed.). Cambridge: Cambridge University Press.
  11. Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, Dover Philosophical Classics. Dover Publications, (2009).
  12. Binmore, Ken (2000). A Utilitarian Theory of Legitimacy. in Economics, Values, and Organization, Ben-Ner, Avner and Louis G. Putterman (eds.), Cambridge: Cambridge University Press.
  13. Costa, Pietro, Zolo, Danilo (2007). (eds.), The Rule of Law: History, Theory and Criticism.
  14. Danai Fard, Hassan (2017). Management movements in the public sector: past, present and future. first volume, second edition, Tehran: Samt Publications. (In Persian)
  15. Dolatabadi, Mirza Yahya (2007). Hayat Yahya. second volume, Tehran: Ferdowsi Publications. (In Persian)
  16. Elahi, Amir Saeed (1998). The idea of religious government in the newspaper (Qanun). Islamic Government Magazine, (7), 256-241. (In Persian)
  17. Firhi, Daoud (2021). Modern government and the crisis of law (the challenge of law and Sharia in contemporary Iran). Tehran, publisher: Nei Publishing. (In Persian)
  18. Firhi, Daoud (2021). The concept of law in contemporary Iran. 3rd edition, Tehran, Publisher: Ney Publishing. (In Persian)
  19. Gholamreza Kashi, Mohammad Javad (2004). Newspaper Law and Order and the Structure of Democracy Speech in Iran, collection of papers of the conference on intellectual and social foundations of Iran's constitutionalism, first edition, Tehran: University of Tehran Press. (In Persian)
  20. Haqdar, Ali Asghar (2003). Fereydoun Adamit and the history of modernity in the era of constitutionalism. second edition, Tehran: Kavir Publications. (In Persian)
  21. Hayiri, Abdul Hadi (1981). Shiism and constitutionalism in Iran. Tehran: Amir Kabir Publications. (In Persian)
  22. Hume, David (1739). A Treatise of Human Nature. by L.A. Selby-Bigge, M.A. (Oxford: Clarendon Press, 1896).
  23. Ingo, Barens, Volker, Caspari, Schefold, Bertram (2004). Political events and economic ideas. Volker Caspari ed, Bertram Schefold ed. Edward Elgar Publishing.
  24. J. J (1762). Rousseau, Du contrat social. ou Principes du droit politique, Wraight, Christopher D. (2008). Rousseau's The Social Contract: A Reader's Guide. Londres: Livres Continuum, p. 213 -256.
  25. Jafari-Ndushan, Ali-Akbar, Zarei Mahmoodabadi, Hossein (2012). Multiple Revisions in the Constitutional Law. Tehran: Publications of the Center of Islamic Revolution Documents. (In Persian)
  26. Javadi, Mojtabi (2014). Natural right or positivist right; Redefining the concept of "right" in Islamic law. Research Journal of Islamic Law, (2/42), 115-137. (In Persian)
  27. Javed, Mohammad Javad (2009). Law and Legislation in the Opinions of Shia Thinkers. Tehran: Imam Sadiq University Publications (AS). (In Persian)
  28. Javed, Mohammad Javad (2012). Legitimacy of power and acceptability of government in Quran. Tehran: Mizan Publications. (In Persian)
  29. Kefai, Abdul Hassan (1359). Death in Light. Tehran, Publisher: Zovar Publications. (In Persian)
  30. Laughlin, Martin (2012). Basics of public law. translator: Mohammad Rasakh, third edition, Tehran, Ney publishing house. (In Persian)
  31. Locke, John (2012). Two treatises on civil governance. translator: Farhad Shariat, Tehran: Negah Maazares publishing house. (In Persian)
  32. Lyotard, Jean -Francois (1984). The Postmodern Condition. Manchester: Manchester University Press.
  33. Makarem Shirazi, Naser (2006). The message of the Qur'an. 10th volume, 9th edition, Tehran: Dar al-Kitab al-Islamiya. (In Persian)
  34. Marashi, Seyyed Hasan (1995). Imam Khomeini's Jurisprudence Congress "The role of time and space in ijtihad". the role of jurisprudence and law in the structure of Islamic government, Tehran: Publisher... (In Persian)
  35. Mazinani, Mohammad Sadiq (2019). Differences between religious and western constitutionalists (with application to the Islamic Revolution). Qom, Publisher: Bostan Kitab Institute. (In Persian)
  36. Mitchell, W.C (1969). "The Shape of Political Theory to Come: From Political Sociology to Political Economy", in Politics and the Social Sciences, ed., S.M. Lipset, New York: Oxford University Press.
  37. Moradkhani, Fardin (2016). Legal Readings from Iran's Constitutional Revolution. Tehran: Mizan Publishing House. (In Persian)
  38. Moradkhani, Fardin (2018). The concept of law in the thought of Tabrizi Talebov. cultural history studies; Journal of the Iranian History Association, 10 (39), 107-128. (In Persian)
  39. Motahari, Morteza (2012). The collection of works of Shahid Motahari: Islam and the needs of the government. volume 21, Tehran: Sadra Publications. (In Persian)
  40. Moulai, Ayat (2019). Booklet on Principles and Techniques of Legislation. Faculty of Law, Tabriz University. (In Persian)
  41. Mousavi Khomeini, Ruhollah (1423 AH). Velayat al-Faqih. 12th edition, Tehran: Imam Khomeini Organization and Publishing Institute. (In Persian)
  42. Mousavi Khomeini, Ruhollah (1999). Imam Khomeini's Journal. Volume 4, Tehran: Imam Khomeini Organization and Publishing Institute. (In Persian)
  43. Mousavi Khomeini, Ruhollah (2014). Velayat Faqih. Tehran, Publisher: Imam Khomeini Publishing Institute. (In Persian)
  44. Natiq, Homa (1976). Mirza Malkam Khan Law Newspaper. Tehran, Publisher: Amir Kabir Publications. (In Persian)
  45. Oakeshott, m, Morality and Politics in Modern Europe, Yale University press, (1958).
  46. Omidzanjani, Abbas Ali (2011). Political Jurisprudence: Fundamental Rights and Fundamentals of the Constitution of the Islamic Republic of Iran. Volume 1, 7th Edition, Tehran: Amirkabir Publications. (In Persian)
  47. Outhwaite, William. Butamore, Tom (2012). Culture of 20th century social sciences. translator: Hasan Chavoshian, Tehran: Ney Publishing. (In Persian)
  48. Parker, David (1997). Class and state in early modern France: the road to the modernity. Oxford University Press.
  49. R. Ball, Alan, B. Guy, Peters (2015). New politics and government. third edition, translator: Abdurrahman Alam, Tehran: Nash Qoms. (In Persian)
  50. Rasakh, Mohammad (2014). Haq and Expediency. second edition, Tehran, Publisher: New Design. (In Persian)
  51. Rasakh, Mohammad, Bakshi-zadeh, Fatemeh (2012). The Background of the Concept of Law in the Constitutional Era: From Malik-Al-Raqabi to Adjustments. Judiciary Law Journal, 77 (83), 35-58. (In Persian)
  52. Rosen, Frederick, (1983). Jeremy Bentham and Representative Democracy. A Study of the Constitutional Code. By Oxford: Clarendon Pressviii.
  53. Safai, Seyed Hossein & Shariat Bagheri, Mohammad Javad (2021). Reflections on the assumption of the wisdom of the legislator. Scientific Quarterly of Legal Sciences, 4, (11), 4-15. (In Persian)
  54. Shah Mohammadi, Ruhollah (2014). The foundations of the modern state in the thinking of the thinkers of the constitutional era. Tehran: Abad Bom Publications. (In Persian)
  55. Simon, Herbert. A (1957). Administrative Behavior, New York: Macmillan.
  56. Soltani, Seidnaser (2013). Reasons of failure to compile and amend laws in Iran. Public Law Research Quarterly, 16 (45), 131-164. (In Persian)
  57. Tabatabai, Javad (2012). A Reflection on Iran, Volume II: The Theory of the Rule of Law in Iran. Tehran, Publisher: Minavi Khord Publications. (In Persian)
  58. Tahan Nazif, Hadi, Ehsani, Reza (2016). A new reading from analytical perspectives on the concept of law in the constitutional era. Research Journal of Islamic Law, 18, (1/45), 80-57. (In Persian)
  59. Tamahana, Brain (2004). on the rule of law: History, politics, theory. Cambridge: university press.
  60. The Concise Oxford Dictionary of Politics, Natural rights, Answers.com, (1996). Oxford: University Press, (2003).
  61. Turkman, Muhammad (1983). A collection of: letters, announcements, letters,...and the newspaper of Sheikh Shaheed Fazlollah Nouri. first volume, Tehran: Rasa Cultural Services Institute. (In Persian)
  62. Valai, Ali; Yavari, Asadullah; Gurji Azandriani, Ali Akbar (2022). In the interest of the legislator's responsibility: a delay on civil responsibility caused by legislative actions. Comparative Law Studies biquarterly, 13, (2/26), 912-887. (In Persian)
  63. Yeatman, Anna (1990) (b). Bureaucrats, Technocrats Femocrats: Essays on the Contemporary Australian State, Sydney: Allen & Unwin,
  64. Zarei, Mohammad Hossein, Babakhani, Farhad (2015). Sociological investigation of the factors and obstacles to the realization of the rule of law in France in the 18th century. Journal of Social Analysis of Social Order and Inequality, 8, (1/1), 185-232. (In Persian)
Comparative Law Review
Volume 15, Issue 1
Espring & Summer
July 2024
Pages 227-265