اندیشه‌های حقوق عمومی

Investigating the Attitude of Functionalism
to Man and its Impact on the Fundamental Human Rights

Ali Asadolahzadeh / Ph.D. in General Law, Tehran University ali.asadolahzadeh@ymail.com

Kheyrollah Parvin / Professor of Public Law, Faculty of Law and Political Science, University of Tehran        khparvin@yahoo.com

Received: 2016/03/15 - Accepted: 2017/08/06

Abstract

The anthropological attitude of various schools of thought has an impact on understanding the basis and source of human fundamental rights as well as understanding its scope. One of the important sociological schools is functionalism, whose theorists offer a special perception of the status and nature of mankind as the core of fundamental human rights. Using an analytical and documentive approach, the present paper seeks to explain the concept of man from the functional point of view and the effect of this kind of attitude on fundamental human rights. The findings of the research show that functionalists, by focusing on society and denying the independent will of individuals, reject human’s inherent right to humanity Also, with pessimism towards human and his/her conditions, they regard the preservation of order and balance of society and increase in the function of individuals in the social system as the main criteria for the establishment of fundamental human rights.

Key words: functionalism, fundamental human rights, natural rights, positive law.

An Analysis of the Semantic Dimensions
of the Term "Law" in the Constitutional Principles

Fatemeh Godrati / Assistant Professor, Department of Theology, Yasouj University               

Received: 2016/10/18 - Accepted: 2017/04/02                                            f.ghodrati@yu.ac.ir

Abstract

The constitution of Iran is the county’s most important law and national covenant, and monitoring or supervising its proper implementation is essential for systematizing the society. In this regard, in the first step, it seems necessary to have a correct understanding of the legislator's intention, in particular regarding the term "law" as a multi-meaning and frequently used term in the constitutional principles. Therefore, using a descriptive-analytical method and an inductive approach, and referring to legal and substantive sources, the study considers the detailed discussions of the meeting for the Final Constitutional Review, the debates of the committee of Constitutional Review and the regular laws and basic procedures and identifies five different meanings for this term by. These meanings include: 1. The ordinary law in a special sense, 2. The rules of the Shari'a of Islam, 3. The norms of law in the general sense, 4. The constitution, 5. The constitution and the ordinary law in the general sense. In each of the principles of the constitution, the intended meaning of the legislator has been introduced and explained with respect to the usage of this term in that particular principle.

Key words: the term “law”, semantic dimensions, principles of the Constitution.
 

Explaining the Penal Institution in the Criminal Law of Abrahamic Religions;

A Comparative Approach to Islam and Judaism

Peyman Kmalvand / MA in the Qur'anic and Hadith Sciences, Isfahan University

Received: 2017/01/18 - Accepted: 2017/06/20                                                         peyman.kamalvand@gmail.com

Abstract

The study of the rules and shari’a of religions is an attractive comparative topic. In religious legal systems, and most prominently in shari’a -based religions like Islam and Judaism, it is essential to examine fundamental questions regarding punishment. By examining the philosophy of punishment in the two areas of infrastructure and its achievements and implications, this study seeks to found a criminal system, not based on western thoughts and opinions, but derived from the holy shari’a of the Abrahamic religions. In this regard, the Qur'anic verses, authentic narratives and the Torah, which are the main sources of understanding the rules of these two religions, have been studied. Although there have been distortions in the Torah, this does not mean that everything in this book is distorted. Therefore, there are many legal and moral rules and regulations in the Torah that cannot be doubted in divinity.

Key words: punishment, atonement, Islam, Jews, criminal law.

The Principles of Public Law in Farabi's Thoughts

Alireza Ghiyahee / MA in Public Law, Tehran University                                                                

Jamshid Saffari / MA in Public Law at Tehran University                  jamshid_saffari@ut.ac.ir

Ibrahim Musa Zadeh / Associate Professor, Department of Public Law, University of Tehran Received: 2017/01/16 - Accepted: 2017/07/04                                                                                                             e.mousazadeh@ut.ac.ir

Abstract

This paper is a brief investigation of the principles of public law in Farabi's thoughts. Although public law has many principles, this paper only examines the four main and important principles of the rule of law, prohibition of job multiplicity, meritocracy and administrative hierarchy in Farabi's thoughts. Accordingly, the purpose of this paper is to present a brief and descriptive picture of these principles from Farabi's point of view. Therefore, there are other issues and principles that can be considered and studied. The paper uses an analytical –descriptive method.

Key words: Farabi, basic principles of public law, rule of law, meritocracy, the prohibition of job multiplicity, administrative hierarchy.

Government in Liberalism

Seyyed Behzad Lassani / PhD Student of Law, Islamic Azad University                                     

Received: 2016/12/01 - Accepted: 2017/05/15                              lesanibehzad2007@yahoo.com

Abstract

As one of the components of modernism, in theory and practice, liberalism draws from Protestantism and the movement of religious reform in the sixteenth century. It has become a social movement that advocates individual freedoms and liberation from the constraints of any political organization. In sum, two bases can be mentioned for liberalism: an individualistic basis and a socialist basis. Reflecting on these two principles of liberalism, it can be regarded as an intellectual tendency and politics, which includes general principles such as freedom of expression, separation of powers, free market economy, and so on. The theory of the liberal state was a political-economic theory and the constitutional government was one of the foundations for its establishment. Adam Smith played an important role in developing this theory. The most important principle of the liberal theory of the state is that the government has no preference and superiority over other institutions. In fact, state is a social institution among the other institutions and should not interfere in other institutions. With regard to liberal government, there are three different perspectives: the unnecessity of state, the minimum government, and the maximum government or welfare state. Today, each of these perspectives identify liberalism with the theory of the minimum state, but by looking at the most liberal countries, it is clear that government in influential in many parts.

Key words: liberalism, individualism, free market, minimum state.

The Legal Status of Public Order
in Islamic Teachings and International Documents

Alireza Ghiyahee / MA in Public Law, Tehran University                                                                

Mohsen Yousef Vand / PhD Student of Fiqh and Principles of Islamic Law, Islamic Azad University, Qom Branch                                                                                                                           mohsen.uosefvand@gmail.com

Seyyed Hassan Abediyan Kalkhoran / Assistant Professor of Islamic Azad University,
Qom Branch                                                                                                           mhabed@yahoo.com

Received: 2017/01/05 - Accepted: 2017/07/02

Abstract

The rights and freedoms of individuals are protected by the international documents on human rights. But this support is not absolute; public order is one of the constraints that limits it. The present paper seeks to study Islamic teachings on public order and compare it from the perspective of international standards. The main question of the research is: what is the perspective of Islamic teachings about public order? Is it possible to use public order to limit individuals and groups' free will in the fields of political, social, cultural and economic behaviors? By referring to different books and using an analytical-descriptive method, this research has arrived at some conclusions. Since public order in Islamic jurisprudence is among dominant rules, like other dominant rules such as "La-zarar " and "La-haraj” (do not inflict injury or hardship), it is a common rule in all jurisprudential sources. Hence any behavior, that disturbs the process of public order with its defined range and elements, is prohibited and illegal in the view of Islamic teachings.

Key words: public order, international documents, international standards, public interest, good ethics, Imamites jurisprudence, secondary Islamic rulings.