جستجوی مقالات مرتبط با کلیدواژه « عرف » در نشریات گروه « علوم سیاسی »

Citizenship rights are an important and influential issue in the contemporary world, which has different dimensions. In this context, the laws of the countries on the one hand and international documents in the form of human rights issues on the other hand, try to regulate the rights and needs of people in different societies without considering ethnic, racial, religious and linguistic considerations. give In the Constitution of the Islamic Republic of Iran, although it is not explicitly mentioned under the title of citizenship rights, there are clear signs of recognition of the nation's rights, including the right to freedom of speech, assembly, participation, and the right to self-determination, equality, and justice. Covers In addition, in the opinions of the founder of the Islamic Revolution of Iran, various aspects of citizenship rights have been proposed based on religious and jurisprudential attitudes, which require a detailed explanation and recognition in the light of contemporary developments and conditions. Considering the importance of the nation's rights in the eyes of Imam Khomeini (RA) and internal laws, including the constitution, the discussion of citizenship rights or the nation's rights is an obvious necessity for the political system of the Islamic Republic of Iran in different periods, including the fourth period of the Islamic Revolution. In the present research, the aim is that citizenship rights, in addition to requiring changes in the light of time changes and along with political and social requirements, require adherence to fundamental principles that can protect the rights of citizens in any situation, without ethnic considerations. , support linguistic, sexual, racial or extra-legal matters. Therefore, one of the requirements of citizenship rights is to rely on principles and rules that provide the ability to transform into inclusive, comprehensive and at the same time diverse laws for pluralistic societies such as Iran. From another point of view, it should be said that the analysis of the state of citizenship rights in the fourth decade of the Islamic Revolution can make it possible for policy makers and educational, legal, legal and media practitioners to provide conditions to shed light on previous weaknesses. , the damages related to the realization of citizenship rights should be removed and the ground should be provided for possible revisions in future decisions and plans. In addition, what is mentioned today under the title of "public good" is beyond the various dimensions of citizenship rights, which can be considered as a framework for identifying examples of citizenship rights and their plan for the fourth decade of the Islamic Revolution.Research background Ramezanipour and Ismaili (2019) in the article "The position of citizenship rights in the political style of Imam Khomeini (RA) and Ayatollah Khamenei, focusing on the three components of the right to freedom of speech and opinion, the right to participate in determining one's destiny, and the right to party and organize They concluded that the view and action of Imam Khomeini (RA) is a value view based on freedom of thought and action. Also, Ayatollah Khamenei has considered civilization to be impossible without freedom of thought. The discussion of maximum participation in practice has been emphasized by both cases. Afshar Ahmadi et al.'s article (2017) entitled "Individual rights of citizenship in the Islamic Republic of Iran with the jurisprudential approach of Imam Khomeini (RA)" has stated that individual human rights including the right to self, recognition and realizing the true position of the individual as Ashraf al-Kharqat, and also by referring to verses and traditions, recognizes the rights and property of citizens in the society as the foundation of the system of citizenship rights in his jurisprudence. Ansari and Nazari (2014) in the article "Basics and principles of citizenship rights in the thought of Imam Khomeini (pbuh) and its differences with citizenship rights in the West" pointed out some differences that are specific in the opinions of Imam Khomeini (pbuh) Achieving basic freedoms by considering the right to good and forbidding evil as a universal duty (extreme freedom), active and effective participation of women (against extreme feminism), paying attention to the rights of ethnic, racial and religious minorities. Oppression of minorities in the West) and attention to virtue-based citizenship training (against superficial citizenship in the West only for participation) are mentioned. Mousavi Bejnvardi and Mehrizi Thani (2013) in the article "Citizenship Rights from the perspective of Imam Khomeini (PBUH)" stated that the theoretical approach of Imam Khomeini (PBUH) is based on the rights of the Ummah. His vision is based on rights-oriented and giving importance to citizenship rights including freedom, justice and security and the rights derived from them. Therefore, creating a discourse around their opinions is one of the main foundations of citizenship rights in the Islamic system.

Descriptive and analytical methods and library tools are used in this article. The theoretical framework of the article is also in line with the topic of the current discussion, public good.

Analytical framework of the public good, referring to the requirements of citizenship rights for the fourth decade of the Islamic Revolution, shows that Imam Khomeini's opinions also pay attention to the elements of freedom of expression, political participation, the right to self-determination, expression of opinions and beliefs within the framework of the law, and protection of privacy. It has paid attention to the privacy of individuals as well as the responsibility of citizens towards building society. Therefore, it should be said that rights and obligations are inseparable elements of citizenship rights, which need more clarification in the fourth decade of the revolution. However, inferring from the opinions of Imam Khomeini (RA) and in the light of the principle of public good, it should be said that the establishment of a national institution of citizenship rights by using the role of customs in determining the examples of citizenship rights and re-reading the principles and foundations of citizenship rights based on the constitution and principles 24 to 26 of the Constitution or the principle of the nation's sovereignty, etc., will be the ways to present a model of Islamic citizenship. In fact, the "rights of the nation" should be considered the heart of the constitution and should be considered even in possible changes to the constitution and other laws. The crystallization of these fundamental rights in the Constitution of the Islamic Republic of Iran is a clear sign of the manifestation of "dignity-based governance" and "righteous governance", the elements and requirements of which are expressed in the opinions of Imam Khomeini (RA) and require explanation and explanation based on his wishes. Changeable citizens.

"Public order" is a universal term in the subject law that is the source of many works in various legal fields. However, the sensitivity of criminal law has highlighted the explanation of this concept in this field of legal knowledge more than other legal fields. In order to explain the nature of legal order, two theories of natural law and positivist law have been proposed. The followers of the school of natural law consider public order to be derived from social structures and the result of the rules of social life, while those who believe in the positive school consider public order to be merely a product of subject law and see its source of existence and validity in law. However, public order seems to be inherently a mediator between a lawless society and a legal society, which on the one hand is the consolidator of the laws of the society and on the other hand is consistent with the laws and legal requirements, and accordingly It develops between the views of the two aforementioned schools. Public order is a complex and ambiguous concept that can not be deciphered from its examples and implications except by referring to the custom of life and behavior of citizens, and this issue makes the study of custom important in order to interpret public order.

Certitude, authority and authenticity in citing a document in support of legal matters can be obtained by referring to the sources in Islamic jurisprudence as the main source for starting deliberation on jurisprudential issues. The Qur’Án and the Sunnah (of the Prophet Muhammad) are believed to be the two main sources for Islamic jurisprudence and political jurisprudence. The authority of the Sunnah in political jurisprudence, though it is based on the authority of the Qur’Án, has to be considered as the richest source for deducing judgements in political jurisprudence as it serves to explain and expound the QurÞÁnic doctrines. Consensus (ijmÁÝ ) in ShiÝi political jurisprudence can be taken as both a source for issuing judgments and political obligation only when it serves as an instrument to discover the Sunnah. The self-evident and definite perceptions of the intellect in the ShiÝi political jurisprudence are the authority and other rational deliberations have attracted the attention of the ShiÝi jurisprudents as they correspond with the definite revealed teachings which are themselves a criterion. Custom (Ýurf ) is more used in recognizing the subjects of political jurisprudence, and expedience is applied as an instrument to diagnose the referents of the political subjects. However, it is not taken as an independent source. Social contracts, if deduced from the genuine religious sources, is, in fact, a return to the Holy Qur’Án and the Sunnah and the theory of Western social contract is of no resemblance or relevance to the ShiÝi political jurisprudence.

 International custom, besides treaties, is the principal source of international law among its formal sources. Furthermore, judicial decisions in general and the jurisprudence of international courts and tribunals in particular, along with the teachings of the most prominent international jurists, form the subsidiary sources of this branch of law the function of which is to ascertain the existence of legal rules and determine their scope of application. Accordingly, it could be argued that on the one hand, international custom is one of the main sources of international courts/tribunals and on the other, international courts/tribunals define and clarify the scope of customary rules in their judicial decisions. In this regard, the jurisprudence of two international tribunals namely International Criminal Tribunal for Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), in addition to applying international customary law for the issuance of their judgments, have played a notable role in clarification of some customary rules. Therefore, exploring the performance of these two tribunals as to the application and clarification of international custom seems to be profitable. The reason and cause for choosing the jurisprudence of these two tribunals is the ambiguity in applicability of treaty law in the course of trials and consequently increasing reference to international custom and their notable position in International Criminal Law as well. The first section of the article is describing the legal sources of the tribunals with emphasis on international custom. Second section entails analyzing the approach of these tribunals regarding two-element theory of international customary law. Thereafter, the content of international customary law would be studied in terms of its jurisdiction and nature. Finally, the article ends with concluding remarks. The present study which is a mixture of translation and research, through a descriptive-analytic method, attempts to deal with the application and clarification of international customary law in the jurisprudence of ICTY and ICTR.

In order not to disturb international peace and stability and keep domestic criminals in Yugoslavia safe, the UN Security Council with the experience of setting up Tokyo-Nuremberg International Criminal Tribunals, formed another tribunal in the process of fulfilling the long-term goals of transitional justice, called the Yugoslav international tribunal so that this transitional Tribunal respects the principle of the lawfulness of criminal proceedings and the fairness , respect the rights of the defendants and offenders, the internal laws of Yugoslavia, the accepted  rules of  international law, the documents accepted  by the Government of Yugoslavia and the international custom that has been established before in order to cite and identify the offenders. Therefore, the question of this research is what approaches the Provisional Tribunal used in issuance of its 2002 judgments against four convicts: Konarak, Kwak, Vukovik - Milan Simic - Vasjlovik and Kornojlac using discounts and post-conviction penalties? Have they committed criminal acts? In this article, while reviewing those opinions, we have analyzed and evaluated the defendants views, the theory of the principle of individual punishment, the effect of the defendants personality and co-operation on the exercise of redress as restorative justice in a descriptive-analytical manner. (Reduction of punishment depending on the circumstances of the accused and crime at trial).

This article discusses the concept of the rule of law in the Mirzamalkam Khan Nazem al-Dawlah viewpoints. Although many books and articles have been written about his life, his newspaper and publications, but this main question has not been answered that whether Malakm Khan knew anything about the foundation, legal basis, and political requirements of the rule of law or not? The requirements such as the basic rights and separation of the forces. It has been said that he and some other intellectuals of the Qajar era have been influenced by the thoughts of the Enlightenment period of France. The hypothesis of the present article is that such a thing has not been existed, in order to explain the subject, one of the most important sources of that age, The Spirit of the Laws, has been considered to show in the contrary of the Enlightenment philosophers, which have had certain legal and political foundations for their views, Intellectuals such as Mirzamalkam Khan did not provide a solid foundation for providing the theory of the rule of the law.
The methodology of this paper is based on Analysis of Discourse and a comparative study of the ideas of Montesquieu and Malakm Khan in order to show that the idea of the rule of law has major differences with each other, and Malkam Khan has not been aware of the philosophical requirements and the political foundations of the rule of law theory.

Approximately four decades have elapsed since the Islamic government was established in Iran. Nowadays one of the most important topics of discussion in which the Islamic government and the legislature are involved is the degree and kind of affinity between the Islamic government and the society’s established custom. No doubt, discussions on the extent to which the Islamic precepts and rulings are related to the established custom of society makes it a jurisprudential and juridical necessity to bring fixed and changing rulings up for discussion. The reason for this necessity lies in the fixed and changing needs of human beings. One of the contemporary thinkers who fully realized the significance of ‘time and place’ in the realm of religion was Shahid MurtiÃÁ MuÔahhari whose concerns for these matters appeared in a collection of issues raised under the title of “Islam and the Exigencies of the Age”. In this research work the criterion of affinity between the fixed and changing rulings have been investigated from MuÔahhari’s viewpoint and concerning the concept ‘fixed’ and ‘changing’ some relevant cases from among his works have been scrutinized. Among these criteria one can refer to the idea of paying attention to the progress and development in Islamic societies, putting emphasis on the common interests, and considering the spirit of the Islamic Law (shariÝah). Having conducted the research, a conclusion has been drawn that a review of Shahid MuÔahhari’s thought reveals the fact that accepting the exigencies of the age and attending the fixed and changing criteria in drawing up Islamic laws will be the solution to the problems in the field of ‘authorized interpretation (ijtihad)’and expertise (fiqÁha) in the legal, social and political realms of the Islamic government.

Customary rules have the special position in international law due to characterstic such as wide dynamic and adaptability with update developments of ratione materiae of practice. The process of identification and determination of customary rules is basically vague and uncleare and there is no exact formula and criteria. The problem of determining customary international law has long been of interest to scholars of international law, Experts and several international law institutions have addressed this topic but different and contrary views on this issue is presented. The basic question have arised in this article is that among the various theories to explain the formation and determination of customary rules, which theory to explain the Commission’s Rapporteur and customary rules have been met and what criteria are used in determining these rules? The Special Rapporteur approach has been relying on case law: Custom is twocomponent system consisting of a material element (practice) and subjective element (opinio juris) that both elements to create a rule of customary international law are inseparable. As the general theory of special Rapporteur eventually approved by the commission itself and will be referred by the International Court of Justice, therefore, it can be helpful the analysis of Special Rapporteur`s approach for researchers in determining the customary rules of international law.

Shi‘ah fiqh has some characteristics, the like of which cannot be found in most disciplines.We can refer to three of these characteristics, which help to reveal some aspects of this discipline such as everlastingness of fiqh, comprehesiveness of fiqh and flexibility of fiqh which are of special importance.An exposition of the mentioned characteristics urges free thinkers to ask this important question: What is the secret behind the efficiency and ability of fiqh to meet man’s boundless needs and what is its mechanism?Mentioning the basic principles of the subject in question, this article tries to explain the reasons and factors of the high position which fiqh has in man’s social life and to clear up some misgivings about this issue.

Governments were the main players in international law for a long time and insisted on the integrity of international treaties and believed that changing every word of a bilateral or multilateral treaty would be only possible through collective agreement and consensus of all members. As a result of more cooperation and interaction in multilateral relations among governments، as well as establishment and quantitative and qualitative development of regional and international organizations، and also as a result of efforts made to encourage accession of more governments to international conventions، especially human rights conventions or statutes of international organizations، the issue of the right to reservation has been recognized by the community of international legal experts under specific conditions. In some cases، application of this right to statutes of international organizations is surrounded by ambiguities which constitute the main subject of the present study.

Performing the obligatory ritual of commanding the good and forbidding the bad rests upon the knowledge of the good and the bad. The basic question is “Who is competent enough to distinguish between the good and the bad? To answer this question, some certain sources such as intellect, practice of the rational people (the Wise), common sense, rules, man’s primordial disposition, and the Divine Law can be investigated andthe limits and boundaries of each in identifying the good and the bad can be determined. Individual intellect with all of its merits cannot be taken as a source of knowledge of the good and the bad because of its limitations. Common sense and practice of the rational people as such cannot be introduced as an authentic source unless they can be confirmedby the Law.