فهرست مطالب حسن وکیلیان

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.

The evolution of natural law within jurisprudence has profoundly shaped legal philosophies throughout history. Its foundations intertwine theology, religious ethics, and the belief in fixed, eternal laws governing the world's nature, rooted in divine order. The origins of natural rights can be traced back to the Stoics, whose philosophy emphasized the intrinsic relationship between nature, reason, and law.Early proponents of natural law, influential until the 18th century, contested the credibility of man-made laws, advocating for objective limitations on sovereign lawmaking. They asserted that man-made laws ought to align with natural law, grounded in reason. However, societal progression prompted a shift, acknowledging the necessity of man-made laws.In the modern era, the rise of positivism and the belief in the separation of law and ethics posed challenges to traditional natural law theory. Some thinkers contended that despite these changes, natural law could still address modern ethical needs by modifying classical perspectives.John Stuart Mill's "On Liberty" in 1859 introduced the Harm principle, challenging the government's role in morality enforcement. Subsequently, James Fitzjames Stephen opposed this notion in "Liberty, Equality and Fraternity" in 1873. The 20th-centur y "Wolfenden Committee" report to the British House of Representatives triggered debates such as the "Hart and Devlin" debate, centering on the principle of harm, becoming pivotal in Anglo-American legal philosophy and across legal systems globally.This article aims to assess the relationship between law and morality within the context of natural law jurisprudence. It contends that while classical natural law comprehension may be inadequate, a rational understanding of legal ethics can withstand positivist criticisms. Moreover, it argues that modern natural law, despite its theoretical advancements, faces practical challenges. Notably, references will be drawn from prominent natural law thinkers such as LON Fuller, Mark Murphy, John Finnis, and Robert George.An essential conclusion drawn from these evaluations is the centrality of reason in moral legislation. While classical natural law emphasized the superiority of morality over law, modern natural law theories focus on the formal conditions of legal morality, relying on formal, rational, and verifiable criteria.The transformation also extends to the approach toward law and ethics, altering the concept of duty towards unjust norms and leading to changing standards of legal morality. Furthermore, the origins of legal validity have shifted from moral principles rooted in broader maxims to the predominance of reason and rationality in legitimizing political and legal orders.

Obviously, in all jurisdictions it is required for the people to observe the laws and regulations; however, at the same time they need to have convincing reasons to obey laws and regulation. Seeking their different interests, people sometimes may break laws. However, sometimes people believe that there are morally justifiable reasons to break laws.   As a matter of fact, the research question of this paper is as follow: what is the nature of reasons that required people to observe the laws and regulations?  Generally, natural lawyers stress on the strong relationships between law and morality and they stress on moral (Not legal) reasons. Despite that, as it will be shown, natural lawyers (Specially modern ones) and positivists have similar justification regarding the observing laws and regulations, in that both of them recognizing legal reasons for observing  laws and regulations and denying the necessity and Sufficiency of moral reasons.

One of the main factors of social and economic crises is moral and financial scandal. These scandals are not limited to the realm of society and economy, but enter the realm of governance and the state. One of the effective strategies to reduce such scandals is enactment of anti-corruption codes of conduct which are enacted by the members of each profession according to the characteristic of that profession with an approach based on Professional Self-Regulation. The question is, which sets of codes of conduct governs judgment as a profession that is always exposed to corrupt situation and how are their status? In this regard, the U.S due to the importance of the position judges in it, has taken significant steps to explain professional behavioral duties of judges that due to the poor history of documents governing the conduct of Iranian judges, can be considered by the relevant authorities. Because of behavior of judges plays an important role in the position of the Judiciary, public trust in judicial branch, position of justice and so on. Through a descriptive-analytical study, we find that items such as Impartiality, Confidentiality, avoidance of political activities, restriction on the receipt of gifts, favors and loan, etc. are important duties that exist in the American codes of judicial conduct.

Law is the most important rule and norm in modern life, which regulates the state’s relations with the citizens and the citizens with each other. Every law belongs to a legal system, and it is not unreasonable to say that the value of a legal system depends on the efficiency and quality of the law. The law quality is further determined in the formal and pre-legislative stages, in which the language of the law is of greater importance than in the other stages. All members of society communicate with the law through language. Language plays a constructive role in the functioning of law since the legislator expresses his intentions through words. Thus, it becomes clear that language and law are deeply related. The way language is used in law reflects the quality of the law. Accordingly, explaining the role of language in the legal system helps to know how language works and is used in law and becomes a roadmap to properly writing the law. As a result, this research introduced the knowledge of forensic linguistics through documentary methods and explained the importance of language in the legal system.

Prevention and management of conflict of interest in the judicial system is one of the ways to reduce corruption in it and in the whole of the political-administrative system. Often, different countries anticipate and control conflicts of interest in the justice system. The countries of the Islamic Republic of Iran, the United States and the United Kingdom each have some laws and regulations in place in their legal system. By comparing the three countries above, it can be concluded that given the early identification of the concept of conflict of interest in the United States and Britain, and as a consequence of the drafting, adoption and enforcement of these laws against Iran, the conflict of interest in the judicial system of these countries has been decreasing and Judicial and public officials have also had a great deal of interest in managing conflicts of interest by knowing and understanding this issue. But in our legal system, an independent concept of conflict of interest has not yet succeeded in finding its proper place in the laws, and as a result we have not witnessed a significant process of managing conflicts of interest in the judicial system. Nonetheless, disparate laws and regulations that involve preventing and combating conflicts of interest have failed to provide effective management of conflicts of interest in the absence of some of the key elements in managing conflicts of interest, such as declaring assets or supporting effective disclosures. The lack of comprehensive legislation and the effective and transparent implementation of existing laws also add to the problems of conflict management in the justice system.

This paper explains the status of jurisprudence and legislation as the main sources of law in common law and written law traditions. It is argued that lawyers’ attitude toward aforementioned sources within both traditions has changed during recent decades. Indeed, plurality of the legal sources has been recognized gradually due to relative advantages of both sources. It is maintained that judicial lawmaking can be deemed as complementary source of law alongside legislation. In practice, based on this premises, it is explained that in some jurisdictions, lawyers and legal scholars within written law tradition have recognized more important role of jurisprudence in their lawmaking process. Traditional views towards the role of the judges as mere interpreters of Statutes have changed and their constructive role in developing the legal system as lawmakers has been recognized. It is claimed that decentralized lawmaking (or law finding) system is more appropriate for liberty and market oriented economy. It is believed that judge made law is more efficient than legislation. In contrast, supporters of legislation emphasis on some values such as certainty, clarity and predictability of law making through legislation. Finally, it is suggested that status of jurisprudence within domestic legal system shall be reviewed by Iranian lawyers.

The multinational Enterprises resort to establishing subsidiaries in states other than their residence in most cases in order to avoid PE status. Due to the assumption of independent legal entity, subsidiaries are taxed as resident taxpayers in the place of incorporation or effective management in most states. But the high level of dependence on foreign companies has caused jurisprudence in some countries, treat subsidiaries as PE of non-resident companies under article 5 of OECD Model Treaty. Considering subsidiary as PE requires fulfillment of some conditions and this article has tried to extract applicable criteria in this respect through looking at model treaty which has been the role model for drafting Iran tax treaties. Thus it’s needed to pay attention to the substantive contractual relations between parent company and subsidiary, existing circumstances on degree of dependence among them and scope of accepted entrepreneurial risk of commercial activities in context of agency contract.

Making transparency and accountability among public officials of the state on the one hand, and preventing administrative corruption, on the other hand, are good governance criteria. One of the factors of guaranteeing the above elements is approval of laws that the declaration of assets of the officials, which plays a significant role in achieving the above principles. These laws should include content and announcement items, accountable authorities, trustee responsible for asset declarations, appropriate enforcement guaranty, review of statements, and disclosure of information about assets of public authorities. In our country, the "Law on the Investigation of Assets of Officials, Authorities of the Islamic Republic of Iran" has been approved in 1394. The main question of the present article is whether this law has the effectiveness of fighting with administrative corruption and the impact on its reduction, and if not what requirements should be added to it. In response to this question, in this study, by using the library method and using the texts and laws of various countries such as the United States, Britain, France, Romania, and South Korea, it came to the conclusion that this law has many advantages and disadvantages that Its strengths can be seen in the comprehensiveness of asset items of the authorities, including disadvantages such as failure to provide a guarantee of compliance with the offenders, the failure to disclose public statements, the failure to specify the mechanism for verifying the statements, that the absence of these extensions Facilitates corruption.

Over the past years, "arbitration" as a means of settling international disputes has gained popularity, but compared to international tax disputes, the possibility of applying the arbitration clause is disputed. After the successful use of arbitration to resolve tax disputes in EU arbitration convention, The Organization for Economic Cooperation and Development (OECD) in 2008 and the United Nations (UN) in 2011 were convinced to insert an arbitration clause in their model treaties. Skepticism to Arbitrability of international tax disputes due to its link to the sovereignty rights of states, resulted in utilizing such clauses by few countries in their tax treaties. Shortcomings in current methods of dealing with disputes between Contracting states (bilateral agreement procedure) on avoidance of double taxation agreements and lack of a binding mechanism for resolving disputes through direct negotiations between the two countries, has justified the need for an arbitration clause in these treaties. Regarding the nature of possible disputes arising from double taxation treaties, seems there’s no obstacle to use arbitration clause in Iran’s bilateral tax treaties and in order to draft a proper clause, it is recommended to use one of the model clauses of UN or OECD.

As a new discipline, legisprudence is raising for the purpose of overcoming the challenges of inappropriate deployment of legislation and legislative inflation. Legisprudence as an interdisciplinary study uses the theories and findings of sciences for analyzing and studying the legislation and law making process. Ruling according to law and by law, has led to repetitive recourse to the legislation by governments and this in turn has led to increase of the volumes of legislation; a situation which is in conflict with rule of law. Promulgating laws which have formal and substantive flaws has decreased the quality of legislations and has made the countries legal system inconsistent. As a result the aforementioned situation causes the inefficiency in governance. Assessment of expected and unexpected consequences of legislation from the cost-benefit point of view and paying attention to these consequences in pre-legislation, legislation and post- legislation stages are parts of theoretical attempts for improvement of quality of legislation which is developed in legisprudence. The main aim of legisprudence is to enhance the quality of legislation and its ultimate goal is to assist in the realization of rule of law and good governance.

In this paper, the role and impact of the interest groups particularly protective internal one upon public policy making for business environment is studied through analytical comparative method. Firstly, definition and different types of the interest groups are introduced in brief. Interest groups in this articles refer to those kinds of groups which try to influence upon public resources allocations without taking political power directly. Also, it was mentioned that in general, there are two major types of interest groups: internal interest groups and external one. First types of interest groups have close relationships with government and they are recognized by that. The second one does not have direct connections with government and government has no tendency to recognize them. Then, the mechanism of protective interest groups influence upon public policies in different organs of government also is mentioned by using descriptive and comparative methods. Interest groups’ role and impact upon three branches of government during the formulating, assessment and implementation of public policies is reviewed. It was mentioned that in recent centuries’ governments have taken very major responsibilities in substantial public policy areas such as providing health services, educations, welfare of individual citizens, controlling and regulation of money, business and economy and so on. Because of that governments have become more powerful than before. At the same time, democratic sentiments were risen and ideal of bottom-up approach to governance encouraged political parties and interest groups to participate in governance. Nowadays, governments are not the only policy makers and political parties along with different types of interest groups that take part. In this paper, public policy making cycle is divided to five stages. First, formation of policies or legislative proposals. Second, formulation of policies or legislative proposal in the form of bill or representative proposal. Third, deliberation and enactment of public policies. Fourth, implementation stage, and the last one is called impact assessment stage. It is emphasized on the advantages of interest groups participation in all stages of public policy making and stressed that government and interest groups interactions in the course of policy making process is essential. Interest groups attempt to influence public policies through lobbying political official in executive power or parliamentarians during the deliberation and enactment process in parliament, respectively. If they failed to achieve their wishes through aforementioned stages, i.e., formation, formulation, deliberation and enactment stages in executive power and parliament, they try to do so by influencing courts. However, impact upon policies in courts are expensive and difficult and it depends on the extent of judiciary independence in a given country. Despite many advantages of interest groups’ participation in public policy making, there are some cautions here; hyper active interest groups which have better access to policy makers in different branches of government may produce inequality amongst citizens. Apart from that, interest groups may mislead public policy makers through providing incorrect information or false data. They may do it in favor of themselves against public interest. The most dangerous of all, if powerful interest groups dominate main public policy maker institutions, particularly parliament, they may disappoint citizens and eventually undermine legitimacy of political system as a whole. This paper shows that if some requirements and standards be satisfied, participation of interest groups could enrich the content of public policies and prevent the hasty decision making and therefore, avoid harmful policy decisions. Interest groups participation is desirable in cost and benefit analysis. They are very rich sources of information and data. Usually they seek to provide the required data and information during policy making process free of charge. They also have many experts which can help policy maker to assess the impact of decisions and policy before and after implementation of them. It is claimed that in this circumstances the transaction cost would in part be diminished. Lastly, the necessity of interest groups participation in policy making process in Iran is studied and some recommendations are provided on the basis of the foreign countries experiences. Unfortunately, due to weak participation of different entities such as political parties and interest groups, public policies’ quality, especially in business environment area in Iran, are not high enough. Encouraging citizens to engage in public policy making process in different phases of policy making process may stop this trend and help policy makers to make better decision. Participation of interest groups not only can promote government’s policy making functions, but also, can improve legitimacy of political system which has damaged recently because of economic crisis which has deep root in weak policy making in business environment in last decades. This paper takes preliminary steps toward better policy making through encouraging participation of interest groups as one of main actors in public policy making process.

One of the main functions of the constitutions is to organize political power within the various branches of government. They do this according to the different interpretations of the doctrine of the separation of powers which in turn create different system of governments i.e. parliamentary, presidential and hybrid systems. Yet, each of those systems has its own characteristics in a given county. One might ask regarding these differences and implications whether one type of government can be preferred to another. Is it the case that one type of government be better than another one? Main argument of the present paper is that none of them might be preferred to another one regardless of the expectations of their designers and the relative success of them to realization of the those aims and expectations.

As pervasive institutions, legislatures have various types of functions. One of the most important functions of the legislatures is policy making power. Policy making power of the legislatures can be evaluated through combination of normative and descriptive- analytic methods and by analyzing the external variables (constitution, political parties and interest groups) and internal factors (parliamentary committees, parliamentary parties and financial resources and staff). In this paper main typologies of the policy making power of the legislatures, provided by Polsby, Blondel and Mezey are discussed. Polsby categorizes legislatures into parliament with power to transform bills from whatever resources into law and those with capacity to influence the bills partly. In his typology of legislatures, power of the policy making capacity of the parliament mostly depend on the external variables. Blondel proposes a spectrum of legislature's impact, ranging from complaint parliaments in one hand and free legislatures on the other, according to the viscosity level of the policy making process. Final typology which reviewed in this paper is introduced by Mezey through analyzing the policy making power of the legislatures and the level of the public and elite's support. Therefore, he classified legislatures into five types: 1. active, 2. reactive, 3. vulnerable, 4. marginal and 5. minimal legislatures.

This paper explores theoretical foundations and methods of parliamentarians’ performance monitoring comparatively. Combating political corruption, enhancing accountability and the rule of law as a basis of monitoring are discussed in the first part of the paper. In the second part, monitors parliamentarians conducts via rules of conduct as part of the internal control system has been studied and its differences with other types of regulatory rules mentioned. In the following, rules of conduct principles such as honesty and truthfulness, priority of public interests over personal interests, independence, non-discrimination, transparency and so have been discussed. Finally, the most common methods of monitoring, external and internal monitoring bodies, sanctions of violating rules of conduct and its impact upon parliamentary immunity of the representatives have been studied.

Legislative inflation or great quantity of law is among the major problems of (post) modern societies. First of all the main causes of the aforementioned problem were analyzed in this article which was presented in the Forth Benelux-Scandinavian Symposium on legal theory. The author discuses whether the ''bad legislation'' is among the significant causes of the great legislative quantity. What is the meaning of the ''bad legislation?'' Answering to this question he examines substantial flaws, technical and means-end flaws of the legislation. Substantial flaws are considered on the basis of several sets of the criteria consists of moral, political, legal criteria and practical disharmony. Technical flaws including logical inconsistencies, difficult language and too casuistic or determinate legislation or too general indeterminate or discretionary legislation are examined in next part. At the end the author analyzed the role of the means-end flaws in legislative inflation which means the failure of the legislature to reach to his values based goals by adopting the laws and regulations as means. In conclusion author emphasizes on the importance of the '' legal definition'' and states that this approach is very helpful for managing the problem of legislative inflation.

Studies of legislatures can be divided in to two broad categories:The internal Variables and the external one Among the external variable Such as the constituents, interest groups, political parties etc, the relationship between Legislatures and Exective is in focal point which has been analysed in this article. Constitutional forms of this relationship, the system of political parties and its impact on the relationship between legislatures and executives, policy expertisc and the different forms of political system such as parliamentary presidential or semi presidential regiems, has been considered in this article.