اندیشه‌های حقوق عمومی

The Public Right to Life in Islam and Human Rights' Declamations

Abdullah Baharlooyee / PhD Student at Baqir Al-Olum University          abdollahbaharloei@yahoo.com

Received: 2016/12/13- Accepted: 2017/05/07

Abstract

Today, one of the serious issues related to the philosophy of human rights, which is of great and world-wide importance, is to determine the relationship between human rights and the right to life. The present paper addresses the question of whether this right belongs to man solely because of his humanity, or is it also related to the value of life? There are two possibilities in this regard. The first possibility is that there is no doctrinal factor playing a role in the realization of this right. The outcome of this view is the conflict of the right to life with religious beliefs. The result of the second possibility is the involvement of religious values and beliefs in the realization of human rights and the determination of its scope and range, which results in the formation of the concept of the value of dignity, and consequently these rights will vary in terms of extension, quality of belonging, and Limiting factors. The claim of this paper is to explain and confirm the second possibility; accepting the second possibility means accepting the foundations, sources, goals, and guarantees of legal performances and is different from what the international human rights documents state.

Keywords: right, life, dignity, human rights.

The Extent of Consideration to Islam as a Source of Legislation in the Constitution of Islamic Countries; from Structure to Norm

Mohammad Hassanpour / PhD Student of Public Law at Tehran University        mo.hasanpour@ut.ac.ir
Iman Mokhtari / MA in Public Law

Received: 2016/10/01 - Accepted: 2017/02/11

Abstract

Considering the fact that the basic laws of Islamic countries are based on Islamic rules, examining their fundamental rights is of special importance. The legal system of Islamic countries can be considered form two structural and normative dimensions. Hence, although these countries are basically governed by the Islamic law and shari’a, the issue about their fundamental rights is that these countries, especially in the structural dimension and sometimes in the normative dimension, are influenced by their model governments which have their roots in history (resulting from Shiite-Sunni tendencies) or are dependent on one of the existing systems of fundamental rights (common law, Roman-German, or a combination of the two systems). Therefore, although the system of fundamental rights of Islamic countries are basically Islamic, they are faced with different structures and sometimes different norms, and what can be mentioned as a result of the discussion is that the Islamic Republic of Iran, with its system of religious democracy and as a country which is successful in Islamic legislation and monitoring it, can be a model for other Islamic countries, a model in which the living conditions of the new world are considered, and Islam, as a fundamental pillar of an Islamic state, has spread in all legal areas.

Keywords: Islamic laws, Islamic country, constitution.

The Legal Foundations of the Political Participation in the Fundamental Rights of the Islamic Republic of Iran

Alijan Heidari/ M.A. Student in Public Rights, aliheidari199@yahoo.com       aliheidari199@yahoo.com

Mohammad Javad Norouzi/ Associate Professor, IKI

Received: 2016/08/18 - Accepted: 2017/01/17

Abstract

The political participation has an important place in modern systems. The main themes of the democratic governments are the democracy and the sovereignty of the people in determination of their political destiny. Likewise, these two themes have discussed in the Islamic Republic of Iran's fundamental rights. In other words, the republicanism as well as the Islamic teachings are the main themes of the Constitution of the Islamic Republic of Iran. The main question of this research is that, "Do the democracy and the sovereignty of the people in determination of their political destiny desired by the Islamic Republic of Iran have valid juridical foundations or it has just emerged from today's common political policies? If yes, what are the juridical foundations that justify the sovereignty of people alongside the sovereignty of God over the human being and the universe? Using the documentary method this research discusses the main juridical foundations of this issue. Although, several researches have been done on this issue, this research studies the issue more specifically.

KeyWords: Juridical foundations, Political participation, Fundamental rights, The Islamic Republic of Iran.

The Judiciary Council and its Role in the Independence of the South African Constitutional Court

Ali Akbar Gorji Azandariani / Associate Professor of Public Law, Shahid Beheshti University
Maziyar Khademi / MA in Public Law, Allameh Tabataba'i University       maziyarkhademii@gmail.com

Received: 2016/12/09 - Accepted: 2017/04/09

Abstract

The purpose of the council method, as one of the procedures for the appointment of constitutional judges, is to eliminate sectarian politics from the process of judicial appointments, and to promote judicial independence through the implementation of an intermediary body among the judiciary, the executive and the legislature branches. Judiciary councils play an important role in judicial appointments, through the participation of various political branches and most non-political groups such as the bar association, lawyers, and other individuals who are active in in civil society. Despite the efforts of the main legislators of South Africa to maintain the independence of the Judicial Commission, due to holding a majority of the Parliament by the National Congress and, consequently, the possibility of extensive involvement in the process of appointing members of the commission and the Constitutional Court, practically the process of appointing the judges has become dependent on the discretion of The ruling party. Also, the lack of transparency in the preparation of the candidate list for conducting a job interview opened the way for the accusation of orienting the commission to the candidates for the National Congress Party.

Keywords: judicial council, South Africa, commission on judicial services, lack of transparency.

The Meaning and Nature of Sacrilege; a Critique of the Views of Non-Muslim Scholars

Seyyed Ahmad Mortezayee / MA in Public Law, Imam Khomeini Institute of Education and Research

                                                                                                           sayyidahmadmurtazaie@yahoo.com

Seyyed Mohammad Hossein Miri / Assistant Professor of Islamic Studies, Ramin University of Khuzestan

Received: 2016/10/27 - Accepted: 2017/03/14

Abstract

Sacrilege is composed of the two concepts of” disrespect” and “sacred things”, and different interpretations are put on them. For explaining the examples of "sacred things" and methods of realizing "disrespect", and for inferring the verdict on disrespect, the first step is to explain the meaning of these two terms. Therefore, in this research, the literal and terminological meaning of "sacred things" and "disrespect" is examined using jurisprudential and legal books and dictionaries. According to the findings of this research, a sacred thing is what is (intrinsically or in an acquired manner) pure, has no defect or shortcoming, and has  a divine reverence; and disrespecting the sacred things in Islam means any deliberate or informed action, or abandonment of any action, that is not compatible with the religious dignity and status of scared things, such as: apostasy; underestimation (humiliation, mortification, abasement); mockery (scoffing); defilement (disgrace, dishonor, defamation); revilement and vilification (insulting and using abusive language) and disrespect. In the final section of this research, the views of three non-Muslim scholars, Emile Durkheim, Mircea Elide and Rudolf Otto are reviewed. There are different terms for "sacred and unsacred in the literature of non-Muslim scholars.

Keywords: sacred, respect, disrespect, insult, underestimation, mockery.

The Principles Governing Zakat in Islamic Public Finance

Meisam Ne’mati / Ph.D. in Public Law, Imam Khomeini Institute of Education and Research

                                                                                                                   meysamnemati58@yahoo.com

Received: 2017/01/29 - Accepted: 2017/06/13

Abstract

Zakat is one of the most sources of Muslims Beit al-mal which, in the period of the rule of the Messenger of Allah and Amir al-Mu'minin, great importance was attached to it, and a significant part of affairs was managed through it. Considering the necessity of the Islamic governments's modeling from the government of the infallible imams and the need to design an Islamic model for Islamic taxes, the principles that govern the Zakat in the general Islamic tax should be explored. Using library resources and ijtihadi method, the present research, has tried to address this issue. As a result, the two principles of being doctrinal and the principle of public interest are considered to govern Zakat, which is compatible with the right of Allah and the right of man. Principles such as the principle of cultural, social and economic efficiency, the principle of trust and supervision, and the principle of social justice and equity, and several other principles, are under the rubric of principle of general interest and are compared with the corresponding principles in public finance.

Keywords: Zakat, public finance, governmental fiqh, Muslims’ public treasury, Islamic tax.