Abstracts

Unity or Multiplicity of the Legislative Authorities
in the Islamic Republic of Iran and Its Impact on the System of Administrative Law

 

Gholam Hossein Elham / associate professor of collage of law and political sciences, Tehran University

Mahdi Nouraei / PhD student of public law, Tehran University                                   mnouraei@ut.ac.ir

Received: 2015/02/14 - Accepted: 2015/07/31

 

Abstract

In each country, there is an institution or institutions set up for legislation. Considering the type of system of the Islamic Republic of Iran and its various objectives, there are different legislative institutions which have the right of legislation within different legal limits. Among these institutions are the Expediency Council, the Assembly of Experts, the Supreme National Security Council, the supreme councils and the Supreme Leader. But, the main, essential and primary task of legislation regarding most subjects is undertaken by the parliament. Taking into account the duties and responsibilities of these institutions, they have the right to legislate regarding certain issues determined by the constitution. The main difference between these institutions and the legislative power is in the main duty of legislation. Therefore, in some of these institutions actions are rarely taken on legislation. Among the effects which the legislation of these institutions bring to the system of administrative law is the necessity of observing the rules ratified by administrative authorities.

Key words: legislator,legislating authorities, unity or multiplicity of legislating authorities, the system of constitutional law of the Islamic Republic, law.


Observation of the Law from the Perspective
of the Constitution of Afghanistan

 

 Abdolhakim Salimi /PhD student of public law, IKI                                        hakim.salimi@yahoo.com

Abbas Ali Kadkhodaie / Associate professor of international law, University of Tehran

Received: 2015/03/13 - Accepted: 2015/07/29

 

Abstract

One of the requirements of the political system based on the principle of separation of powers is observation of the implementation of the constitution and the law in the legislative process. This necessity  has also been considered by the former constitution  of Afghanistan. Focusing the attention on this issue in Article III, the constitution approved in 1382 stipulates that in Afghanistan, no law can be enacted unless it corresponds to the beliefs and provisions of the sacred religion of Islam. Stipulating the need to observe the law in this article is one of the important measures taken by the constituent assembly in the constitutional law in Afghanistan.The study shows that, despite the emphasis of the constitution on the necessity and standards of observation, it suffers from lack of a competent authority for observation. The prerogative of the Supreme Court and the Independent Commission to observe the implementation of the constitution is not enough. To this end, the constitution needs to have an independent political organization with a structure, duties and qualifications which accord with the Islamic Republic of Afghanistan. Of course, the accomplishment of this important task demands amending its constitution.

Key words: Afghanistan, observation of the law, supervision, supreme court, independent commission for observing the implementation of the constitution.


The Refugee Law in Islam:
a Source for Developing International Refugee law

 

Ibrahim mousazadeh / Associate Professor of law and political sciences college, Tehran University

                                                                                                                               e.mousazadeh@ut.ac.ir

Rozita Kahrizi / PhD student of international law, Tehran University               rozita.kahrizi@gmail.com

Received: 2015/03/24 - Accepted: 2015/09/02

 

Abstract

The refuge law in Islam, with its positive character, known in the pre-Islam period as concept proximity, presents a maximum and systematic support to asylum seekers and refugee. Islamic sources, including Qur'anic verses, narrations, the lifestyle of the prophet(pbuh), the pure Imams(pbut) and Muslims caliphs and also the views of jurists emphasize on this support with the least exceptions.  The paper examines the contract of ‘’ seeking a refugee’’ which grants a haven to Muslims and non-Muslims in the period of occultation of the Twelfth Imam(pbuh) and the right and duties of refuges and Islamic government towards each other. An inquiry into Qur'anic verses, narrations and the lifestyle of the infallibles (pbut) shows that the refugee enjoy the support of the individuals of Islamic community and Islamic government, but if they seek to break the law, they are deprived of any support, a position which is established by case like Geneva Convention, as well. Considering the lukewarm support and current inadequate refuge offered by the international law the true religion of Islam, can be a legal, moral and human source, which contributes to the enhancement and development of international refuge law.

Key words: refugee, Islam, fiqh, international law of refuge, contract of seeking refuge, safe.


A Review of the Status and Manifestations
of the Theory of Velayat-e Faqih in the Shiite's Thought

 

Hamid Reza Goadashti / MA in Fiqh and principles of Law                       koosar.gardashti@gmail.com

Hossein Davar Zani / associate professor of theology faculty, University of Tehran    davarzani@ut.ac.ir

Received: 2015/4/22- Accepted: 2015/9/13

 

Abstract

The issue of Imamate and leadership in society and the necessity for establishing an Islamic government is considered as one of the most fundamental principles of the Shiite political thought. In the view of the Shiite, Imamate and leadership are among the issues which, in terms of some elements and components such as totality, essentiality, permanence and necessity, are presented in contradictory forms, but both share the same orientation in the time of the infallible's presence or during his occultation. The theory of Velayat-e Faqih is theoretically structured in the form of Imamate and his true guardianship for Imamate of the Muslims' prophet in the time of the presence of the infalliable Imam (AS); after him, it is structured as Imam Ali and the other Imams (AS) ,and in the absence of the infalliable Imam, in the form of vicariate of a fully qualified Faqih.

The basic assumption that matters is that, from the early days of the occultation, the issue of the Velayat-e Faqih in organizing Muslims' social life took root in the Shia scholars’ epistemology as a determined system, but in different periods of time, it has emerged differently in proportion to the interactions and relations of jurisprudential system with the ruling monarchy. In the era of Imam Khomeini, with all preliminary stages provided, such as people’s unity of word in supporting Imam Khomeini's political discourse, the theory of Velayat-e Faqih manifested in its full sense, i.e. the appointed and absolute guardianship of the fully qualified Faqih.

Key words: Imamate, absolute Velayat, oppressive ruler, vicariate.


 

A Deliberation on the Limitations of the Juridical Jurisdiction of Legislative Institute from the Thematic Point of view in the Constitutional Law Systems in(England, France, Iraq, Lebanon, Iran)

 

Mojtaba Hemmati / Assistant professor of Legal Sciences                           mhemmati1358@yahoo.com

Ali Reza Kianpour / MA student of General Law, Allamah Tabatabai University

Received: 2015/04/30 - Accepted: 2015/09/02                        alirezakianpour2020@gmail.com

 

Abstract

Lawmaking is the main duty of the parliaments of the world.  One of the main questions that arises here is, whether the lawmaker’s jurisdiction in lawmaking from the thematic point of view is absolute or limited. Can a lawmaker tackle any thematic scope and making a law about every issue?  Can he restrict or extend the scope of right and freedoms the way he likes? An inquiry into the different legal systems shows that even in the constitutional law in which the generality of lawmaker’s jurisdiction is made explicit, there are limitations in this field; limitations which are sometimes based on red ideological lines of constitutional law, sometimes on the right, freedoms allowed for citizens and human rights obligation, and sometimes on the commitment to some local covenants and specific organizations such as European Union and acceptance of the superiority of their legal systems over the domestic law.

Key words: the parliament, lawmaking, lawmaking topics, general jurisdiction, limited jurisdiction.


Spiritual Privacy of Individuals in Imamyyah Fiqh
and Constitutional Law of the Islamic Republic of Iran

 

Sajjad Shahbaz Ghahfarokhi / instructor of Shahre kord Universiy              sajjadshahbaz@lit.sku.ac.ir

Received: 2015/04/27 - Accepted: 2015/09/13

 

Abstract

Spiritual privacy of individuals constitutes one's actions and characteristics which oversee his character and identity .It is unknown to the public and a person is not willing to disclose it because if it is disclosed, his/her social prestige will be damaged. People do not stand others' intrusion on their privacy and they react to it. This concept has not been dealt with independently in Islamic law and Iranian law. Given the unprecedented nature of this construct in Iranian law and in Fiqh, Iranian legislator has inadequately supported some instances of this right shown in the constitution and some ordinary rules. Using a descriptive-analytical method and referring to the reliable sources of Fiqh and law in Iran, this paper investigates the of protecting the spiritual privacy of individuals in Imamyyah Fiqh and in the constitutional law in Iran and provides a plan for protecting privacy.

Key words: privacy, spiritual privacy , personality, privacy of one's sexual life, prestige.