public law

The aim of the current research is to critically investigate and compare Kant's philosophy with the fundamental issues of public rights in Kant's philosophy, including State and Freedom. The research method hired here is descriptive-analytical and the results finally have depicted that for Kant, the idea of law is a fundamental part of his political philosophy. Law was considered as a concept representing the principle of validity in his regards. Therefore, Law is preconceived as a concept of the human mind so that sucha concept cannot be inferred from any external experience. Instead, the human mind discovers it as a necessary condition without which nothing can be properly explainedor understood. Although, “Law” is known by different names and lexicon in different branches of philosophy. Regarding the foundations of State legitimacy from Kant's point of view, it can be elaborated that Kant's desired political system, as he referred it to a republic, as system that is based on the former principles of wisdom such as freedom, independence and equality, moreover, the laws and the issue of their legitimacy in this system are under a decisive position, which has a deep connection with the concept of right that arose from Kant's moral philosophy. The system of representation and the principle of separation of powers are two other basic components of Kant's republican system, which along with the constitution tries to keep the political society safe from tyranny and protect the principles of freedom, equality and independence. Thus, according to Kant’s idea, laws and principlesof public law are all a means guaranteeing the freedom and rights of individualsfrom the “State”. Laws aforementioned, are also effective in realizing a fair and complete administration within a state. In this context, Kant supports the form of the republic in the Constitution. In the context of securing freedom at the level of international relations,Kant assigns duties to the government and states so such type of freedom should be corresponded according to the political laws of a republic state based on crucial political elements. The freedom mentioned, outside the borders is called universal rights. In general, Kant's political philosophy is compatible with the acceptance of various types oflaws. Emerging from natural rights, moral, political, and international rights, including international rights, are holistically and theoretically related to each other.

Philosophy of law is one of the most complex and difficult branches of law, as well as philosophy, which seeks to determine the legal truth of law (law as it is). Legal positivism, as one of the philosophical schools of law, with a morally neutral theory, makes the conceptual description of law possible and necessary. According to this school of law, positive laws are laws adopted by governments, and in the context of the analysis of this school, public law emerges as a branch of law whose main mission is to study the rules governing the organization of internal and external relations of the state in its general sense, by designing general theory with a correct and in-depth understanding of its fundamental concepts. Herbert Hart’s legal theory, with a hermeneutical approach to legal rules, seeks to understand the legal system through introspective analysis and semantics of legal rules. Through a comprehensive analysis of the formulation of legal rules, while adhering to a minimum of the natural law, it also seeks to depict a system of law in which following the law is internalized, not as mere following the ruler; this system of law proposes the theory of distinction between the primary rules and the secondary rules, as well. Therefore, this descriptive-analytic research analyzes Hart’s positivism in the field of public law.

Considering the functional evolutions of modern legal systems, in our times, some of the Islamic law dictates such as the one-fifth tax (khums) and the alms tax (zakāt), the issue of taxation, or discussions related to the legal equality of men and women have ignited debates, particularly in the field of the Epistemological fundamentals of law. The present research aims to provide a suggestion according to which, it might be possible to reconstruct the rational view onto Islamic legal with a mu‘tazilī approach and, thereby, to achieve more compatibility between Islamic Law and the legal requirements of Public Law in contemporary political communities. With this approach, the authors address the topics of “rationality” and “human will” as two concepts with fundamental importance in the theory of Qāḍī ‘Abd al-Jabbār al-Mu‘tazilī. It seems that, from this point of view, with a legal and positive interpretation of the elements of Qāḍī ‘Abd al-Jabbār’s theory of justice, it would be easier to bring Islamic legal dictates and the secular rules of the modern legal systems to coexistence.