جواد یحیی زاده

The dynamic constitution is one of the fundamental issues in modern constitutional law systems, from the theoretical basis of justification and the presentation of its practical mechanisms, which tries to bring yesterday's constitution together with today's values without changing the existence of the legal-political order and system based on order-oriented values. To meet the renewed demands of citizens. Therefore, the main question in this article is what is meant by the dynamic constitution and the mechanisms of its realization and what is its place in the constitutional law system of the Islamic Republic of Iran? The findings of this research, with the method of collecting data through a library and descriptive-analytical method and checking legal and official texts and documents, show that the dynamics of the constitution is generally possible in four ways: revision, interpretation, unwritten principles and basic proceedings, which can be done depending on the type of legal-political systems. Take advantage of each of them. Also, the reflection on the domestic constitutional law indicates that by emphasizing the difficulty of the revision process in the constitution, the lack of application of the hermeneutic interpretation method by the official interpreter and finally the danger of resorting to unwritten principles in fragile democracies, the realization of the dynamics of the constitution in the legal order and system of The interior should be searched in the constitutional adjudication.

Universalism stands as a cornerstone in the realm of human rights, representing both a fundamental and contentious principle. Its significance lies in being foundational, shaping the minimal framework of international human rights law and influencing various international documents and declarations. However, it also sparks controversy due to the fact that human rights often reflect a specific perspective, rooted in the modern, liberal, democratic, and secular traditions of the West. It can be argued that constitutionalism, the prevailing paradigm in contemporary legal systems, is an accomplishment resulting from the historical evolution of the conceptof right, human experiences during the Age of Enlightenment, and, notably, the technological advancements spurred by the Industrial Revolution in the West.Nonetheless, constitutionalism confronts substantial challenges in the contemporary era. For example, unamendable rules are the institution acknowledged in most constitutions. Noteworthy instances include the recognition of human dignity in Germany, republicanism and secularism in France, theocracy in Iran and Afghanistan, the separation of powers in Greece, territorial integrity in Madagascar, and political pluralism in Portugal and Romania. In “Constitutional Handcuffs,” Richard Albert, a preeminent scholar in this field, states: “The advent of the written constitution has given rise to an enduring tension in constitutional statecraft pitting constitutionalism against democracy” (2017, p. 18). However, the constitutional unamendability, facilitated through entrenchment clauses, entails the freezing of certain constitutional articles or fundamental values, potentially sidelining democratic principles and popular choice.The present study aimed to explore the relation between constitutional unamendability and the universal values of human rights. The pivotal question revolves around whether constitutional designers have the authority to shield any value from popular amendment, potentially compromising democracy to a significant extent. The acknowledgment of a relation between the universal values in human rights and the incorporation of unamendability in the constitution would imply that constitutional designers are only allowed to entrench the universal values by superconstitutional provisions, thus imposing restrictions on democracy. 

There are significant contributions about universality of human rights and unamendable constitutional rules. Notable among these are: the book titled Contemporary Human Rights written in Persian by Mohammad Qari Seyed Fatemi and the English paper titled “Origins and Universality in the Human Rights Debates: Cultural Essentialism and the Challenge of Globalization” by Michel Goodhart (2003). Richard Albert’s outstanding book titled Constitutional Amendments: Making, Breaking, and Changing Constitutions (2019) also serves as a key reference about constitutional unamendability. Despite these valuable contributions, there remains a gap in research concerning the relation between universalism of human rights and constitutional unamendability. Furthermore, it seems there is not a serious study addressing the approach of the Islamic Republic of Iran in this regard. Consequently, the present article stands as an innovative endeavor, as it seeks to delve into the unexplored relation and sheds light on the unique perspective of the constitutional designers in the Islamic Republic of Iran.

This study falls within the category of normative legal research. Normative legal theory seeks to offer a pure, self-sufficient explanation of the law, analyzing values, concepts, principles, rules, models, and argumentations in the legal doctrine. In this line, the present analysis relied on relevant theories and doctrines to examine the relation between universalism of human rights and constitutional unamendability.

The origins of the emergence of universalism principle in contemporary human rights can be traced back to the profound debates between two trends in philosophy and ethics: deontological ethics and utilitarianism. In Kant’s philosophy, the concept of right is articulated in a manner synonymous with human rights, warranting the characterization of Kant’s philosophy as a philosophy of human rights in the exact sense of the word. Kant ascribes a transcendental status to morality, giving rise to the notions of transcendental human and universal human rights. According to Kant, moral rules grounded in duty possess absolute generality akin to natural laws; in other words, they cannot be taken as exceptions. This is where Kant introduces the concept of the absolute in his philosophy. His most explicit proposition in this context was formulated as follows: “Act only in accordance with that maxim through which you can at the same time will that it become a universal law”.Nevertheless, the philosophical perspective of utilitarianism challenges Kant’s approach and presents thoughtful criticisms. Hegel, for instance, underscored the formal and abstract character of Kant’s philosophy, contending that social ethics finds no place in Kant’s intellectual framework. Hegel acknowledged the impracticality of Kant's philosophy, asserting its incapacity to formulate practical rules. Drawing from philosophical hermeneutics, Gadamer similarly scrutinized Kant’s concept of the absolute and his idea ofuniversalizability. Gadamer actually placed emphasis on the spatiotemporal understanding of humanity and regarded a transhistorical and transgeographical understanding as, at the very least, contentious.Moreover, unamendable constitutional rules are those roles that are by no means subject to modification and change as understood by the founders of a given legal–political system. Essentially, the only way to amend these rules involves a fundamentaltransformation in the nature and foundational values of the legal–political regime. As evident, there exist shared principles regarding the substance of unamendable constitutional rules in progressive legal systems, all converging on the central notion that values emanating from constitutionalism and universalism should be entrenched and safeguarded against amendment.

According to the research findings, acknowledging the universality of human rights hinges on recognizing the unique nature of the human and its capacity for transhistorical and transcultural thinking. Additionally, unamendable constitutional rules, as a pivotal aspect of the constitution, pose a significant challenge to constitutionalism. Aimed at safeguarding the achievements of constitutionalism, these rules restrict citizens from exercising their right to self-determination. Examples of such rules include human dignity, fundamental rights, democracy, separation of powers, and political and religious pluralism. The present research indicated that unamendable constitutional rules in modern constitutions are the logical-cum-historical consequence of the principle of universalism, all sharing common core elements. Consequently, global constitutions are not allowed to define the content of unamendable constitutional rules as contradictory to the values of constitutionalism and universalism. This phenomenon has propelled a shift towards transnational constitutionalism. Furthermore, the research findings shed light on the approach of the Constitution of the Islamic Republic of Iran. Article (177), in a contradictory and somewhat paradoxical stance, acknowledges certain core elements of unamendable constitutional rules aligned with the principle of universalism. Meanwhile, it recognizes several subjects, which diverge from universalism, given their distinct intrareligious and intralegal values. This inevitably necessitates efforts towards amendments and integration, propelling a move towards transnational constitutionalism.

Law and legislation, if not the most important issue facing modern man and government, are one of the most fundamental. In its original form, although it originates and is born through the legislature and through the deliberation and consultation of a large number of people's representatives in parliament, it is not limited to that and affects various types of human activities and the development of societies. It is clear that the domestic legal system also cannot do without deep thinking about the characteristics of law, in order to facilitate the effective and efficient functioning of human relations on the one hand, and to benefit from it in a native way and in accordance with the requirements of Iranian-Islamic society on the other hand. Correct analysis of the characteristics of law in the context of the domestic legislative system and efforts to represent and repair its shortcomings, of course, requires an examination of the "General Policies of the Lawmaking System". The results of this article, using a normative method, examining official legal documents and collecting information through library resources, show that with the exception of the three components of "Sharia principles", "General policies of the system" and "Demands of the leadership" which have a special place based on the requirements of legislation based on jurisprudence, other components overlap with the characteristics of law in the modern state. Also, among the two appreciable assumptions about the legal nature of "policies" in the hierarchy of domestic norms and with emphasis on "legal logic", the requirements of the "command-oriented system" and finally the "rule of law", it is possible and necessary to consider a place below the constitution and ordinary law and of course above government regulations for it.

Judicial review of administrative actions is one of the fundamental issues in modern public law. Based on this, any authority or institution that performs administrative action can and should be subjected to the most effective type of review, that is, judicial review. Beyond the theoretical basis of the possibility or refusal of the Court of Administrative Justice to examine the approvals of the National Headquarters to deal with the Corona virus in Iran, the recent decision of the General Board is of particular importance in terms of understanding the performance of the Court itself regarding the competence or lack of competence in this regard. Therefore, the main question in the present article is that "Does the Administrative Justice Court consider itself competent to deal with complaints about the approvals of the National Headquarters to deal with Corona?" Scrutiny in the recent judicial decision shows that although the general board does not directly and officially consider the approvals of the National Headquarters to deal with Corona as voidable, the possibility of revoking the approvals of this institution has been accepted by the general board, at least in practice; Although the weakness in legal reasoning in the said decision and especially the failure to refer to the general principles of administrative law in it can be criticized.

"check", as a fundamental discourse in public law, builds the foundation of modern legal systems. It can even be claimed that the most important function of the legal government, i.e. guaranteeing and protecting the rights and freedoms of citizens, is also realized through check. However, the multiplicity of check vocabulary and the ambiguity in understanding the dimensions and multifaceted functions of this discourse have made it necessary to clarify the vocabulary of check. Therefore, the main question of this article is "What are the lexical systems of check discourse in Iran's legal system?" In order to answer this question, with a qualitative method based on Foucaultian paleontology and data collection through a library, an effort was made to analyze the discourse of check with special emphasis on "object" among the four Foucaultian paleontological elements - "object", "subject", "concepts" and "Strategy", the lexical system of monitoring at three levels, "lexical", "terminological" and "its practical examples in Iran's legal system" should be examined. The findings of this research show that firstly, eight important keywords can be highlighted from among the many words corresponding to check and by checking the lexical, idiomatic and practical meanings, they can be used in a precise language in their appropriate context. It is also possible to classify the check lexical system based on the lexical and terminological inference obtained, based on two important components "depth" - including shallow and deep lexical system - and "substance" - including administrative (both financial and policing), political and judicial - and from this Row revealed some inappropriate language usages in Iran's legal system.

The intrusion into the nature of the liberal rule of law as a dominant discourse in modern public law and the awareness of institutional rationality and its limits are of great importance. Accordingly, the purpose of this study is to examine the components of the liberal rule of law from the perspective of two well-known thinkers in this field, Hayek and Nozick, and to explain their legal teachings. Findings of the present article, based on descriptive-analytical method and collection of information through libraries, show the link between nomos and thesis in the legal system, critique of distributive justice and advocacy of modified democracy, emphasis on the meta-legal doctrine of the rule of law and finally setting the normative and institutional framework in Hayek's ideas, on the one hand, and the application of the natural state, the dominant protectionist association, and the social contract to justify the minimal state, acceptance of the minarchy versus anarchy, advocate of entitlement justice instead of distributive justice, and limitation of government functions, the components of the liberal rule of law in the intellectual system of these two thinkers organize that Contemplation in this area has made its differences and similarities with the contemporary rule of law in Iran and efforts to solve the shortcomings of the domestic legal system inevitable.

The most important or one of the most important concepts in the legal sciences and legal systems is the controversial concept of “right” which has a long history behind it. In the meantime, “The right to be wrong” has also entered legal texts and documents in addition to theory. This right is the result of the growth of rights and the product of many centuries of struggle between the government and citizens in Western liberal thought and the result of various social, economic, and political happenings. The "right to be wrong" in a simple and concise sense, means respecting the conscience of others, even when we are sure they are wrong. In other words, this concept means non-interference of others in the wrongdoing of the right holder. Based on this, a person can build his moral system in such a way that, even according to others, is considered wrong, unjust, or immoral. "Right to die" or "Right to refuse medical treatment" and "Abortion", "Right to choose a racist party", and "Homosexuality" and... are some clear examples of the right to be wrong. Right to be wrong, which emphasizes the trans-ethical nature of rights by differentiating the right in the objective and subjective sense i.e., between "being right" and "having a right", reveals the content of the right in a new sense. Acknowledging the concept of having a right to be wrong in legal systems implies the acceptance of the principle of tolerance in regulating and harmonizing the legal relations of citizens and accepting the concept of "pluralism" instead of "plurality".

Literature Review:

Comparing the concept of the right to be wrong with the basic foundations of the legal system of the Islamic Republic of Iran voiced in the constitution shows that it cannot be assumed that this concept is accepted by the constitutional legislature through neither the textualist, structuralist nor intentionalist interpretation methods. Reflecting on the fourth and fifth articles, the twenty-sixth and twenty-seventh in particular, the sixth paragraph of article 2, and finally the thirteenth article of the constitution, confirms the claim of the authors in this regard with a loyal and faithful interpretation of the text and the structure of the constitution. Also, referring to the constitutional negotiations documents -as an important source in understanding the fundamental rights of societies- in an attempt at an intentional interpretation, does not open a way to apply the concept of right to be wrong in this system. However, using the philosophical hermeneutic method instead of the previous interpretive methods, which seeks a dynamic interpretation of the text by understanding the "meaning of the meaning", while paying attention to the "requirements of the time", "the historicity of the text" and finally "the compromising between of the views of the author and the interpreter", makes the idea of accepting the right to be wrong in this legal order and system possible.

In this research, in addition to clarifying the concept, the theoretical foundations and justifications of the "right to be wrong", and emphasizing its prominence and prevalence in legal systems, its possibility in the Constitution of the Islamic Republic of Iran was measured and examined through the hermeneutic method.

The Guardian Council, which according to Article 98, is the only official interpreter of the Constitution of the Islamic Republic of Iran, has prevented the possibility of using a dynamic interpretation method, especially the new hermeneutics method, and refuses to accept the right to be wrong since its establishment. This institution has only authorized and used the two methods of textual interpretation (with an emphasis on the literary meaning of the word) and intentional interpretation, in the framework of the principles of Shia jurisprudence and based on Shia’s thought system in the interpretation of the holy texts and avoiding self-serving interpretation. This has become an issue that, of course, can be revised to make the domestic legal system more efficient. Reflecting on the capacities of Imamiyyah jurisprudence in identifying the concept of the right to be wrong and its application in domestic law and constitution, of course, requires another time.

The findings of this article show that the Islamic vision accepted in the Constitution of the Islamic Republic of Iran has distinct principles regarding rights with a liberal point of view, which has manifested itself in the form of the Sharia law governing the Constitution. "God-centeredness in all matters", distinguishing between "God's right" and "people's right" and finally the supremacy of "natural rights" over "conventional rights" are unchangeable and unbreakable elements in Islamic thought. According to this view, human rights are conventional and contractual, and nature, law, and above all, human beings, do not have inherent rights. it is through God-given rights that human rights are valid.

Although today the claim that “we live in the age of rights” is viewed with skepticism and the need to maintain “public order” and prevent acts contrary to it is elevated, there is still a risk of relying on the doctrine of “exceptionalism” to justify “power” Instead of “authority” on the one hand, and its inefficiency in the field of action, especially in the midst of human crises, including the “corona pandemic” and, consequently, the requirements of “crisis management” resulting from it, on the other hand, the importance of justifying the principle is considerable. This research employed a legal-managerial interdisciplinary approach and a library-study method. As well, the qualitative method of descriptive-normative was used. Accordingly, the main question in this article is what role did the doctrine of exceptionalism in the constitution of the Islamic Republic of Iran play in regulating and overcoming the superhuman crises, and in particular the Corona pandemic? The results of the article show that the supremacy of the doctrine of exceptionalism over the rule of law in the Constitution of the Islamic Republic of Iran, contrary to the comparative approach, not only has no effect on managing or reducing the harmful consequences of such crises, but also aggravates competencies. Hence, it is necessary to recognize and revise this issue.

The transparency of the administration as a principle and the exception to its limitation have such a prominent place in the rule of law that the legitimacy of the administration's actions can be sought on the basis of its transparency and openness. The Government under Sunshine Act of the United States is an inspiring and accurate example of such an idea. Therefore, the main question of the present article is what are the principles and justifying sources for limiting transparency in the law of " Government under Sunshine Act"? In response to the question in this study, by descriptive-analytical method and scrutiny of official legal texts and documents and collection of information through libraries, it was concluded that the law is based on transparency in all collegial body organizations and a profound explanation of its exceptions such as National security, Law on Personnel, Privacy, Information Classified by Law, and Criminal Charges seeks to protect the rights of individuals to free access to information and the ability of the government to exercise its responsibilities by providing a platform for public access to information.

City and urban planning is an amazing phenomenon and the result of various political, economic, social and historical components that are manifested in a natural and geographical context. The study of this wonderful product of civilized man requires the help of various sciences and sciences. Therefore, the main purpose of this article is to explain the urban planning situation of the last century in Iran with a legal-historical approach. The method of data collection in this interdisciplinary research, library and research in official documents and laws and regulations and the method of data analysis is descriptive-analytical. The findings of this study show the insecurity, chaos and ignorance of citizens about their civil rights and citizenship in the Qajar period, lack of public participation, incorrect economic measures, neglect of deprived areas and authoritarian urban planning in the Pahlavi period and finally imposed war, economic sanctions, Bureaucratic administrative system based on oil and disregard for the people, inefficient legal system design, neglect of professionalism in delegating responsibilities and of course heterogeneous urban management during the Islamic Republic, are the most important factors in disrupting the functions of urban system and urban planning in contemporary Iran. Legal - is a history that has made it necessary to try to resolve them in order to strengthen urban rights and urban planning.

The complex relationships of human beings with each other and the need to choose the most effective method in regulating those relationships through legal systems have prompted efforts to change attitudes toward overattachment to the use of legislative tools for legal regulation. However, the fundamental question is what is the most effective method in this regard? The present study is an attempt to analyze methods of legal regulation by the government in the present era. The main question of the article is what is the relationship between self-regulation and the legislation and also to what extent this doctrine has been considered in the legislative system of the Islamic Republic? In response to the question mentioned in this study with descriptive-analytical method and using of official legal texts and documents, it was concluded that first, self-regulation as an effective tool available to the government, especially in the current era. And in terms of legal regulation, it can and should be considered separately from the legislative tools and also superior to it. Also, a review of the legislative system of the Islamic Republic shows that the lack of attention to the various elements of law, the existence of multiple legislative authorities and the inflation of legal rules, has led to neglect of the Technique of self-regulation in the legal regulation of human relations to identify and analyze the causes of inefficiency of the legislative system of the Islamic Republic .