جستجوی مقالات مرتبط با کلیدواژه "حاکمیت مردم" در نشریات گروه "فقه و حقوق"

The constitution, as the supreme law of a nation, ensures the rule of law and citizens’ rights, protects human rights, and reduces the likelihood of arbitrary government actions. The establishment of the constitution is commonly considered the most effective means of upholding constitutional values and protecting the individual’s fundamental rights. However, the absence of a written document of the constitution does not necessarily imply the absence of the rule of law or of the guarantee of human rights or even of control over government actions. Nor does it conclusively indicate the full implementation of constitutional principles and values in societies governed by a written constitution. Therefore, the concept of constitutional law and the associated principles extend beyond written documents. It is now recognized that the written constitution is not the sole authoritative source of constitutional norms. Yet going beyond legal formalism and embracing the institution of the unwritten constitution requires careful examination of its foundations and functions. Simply incorporating this concept without critical reflection on its origin and functions risks incomplete understanding. The contemporary conception of the constitution is imbued with its unwritten norms, so overlooking this aspect of any legal system results in a flawed understanding of the constitution. However, introducing ideas and concepts into the national legal system requires a thorough understanding of their origins and foundations, as well as the consideration of the feasibility of aligning domestic institutions with new concepts. Otherwise, newly introduced concepts may create a patchwork in political and legal structures, thus adversely affecting society andcausingsignificant harm. To attain a precise understanding and prevent potential abuses, emerging concepts in public law, such as the unwritten constitution, must be rigorously analyzed and explored with an eye to their origin.Upon closer analysis, it becomes clear that the concept of unwritten constitution is not boundless, but rather operates within a specific framework and scope. Failing to grasp the foundations of this concept and inadequately explaining it can lead to increased reliance on discretionary opinions, thus causing ambiguity over the nature of practices, procedures, and rules within the constitutional law system. Consequently, certain political practices or actions may erroneously be considered part of the constitution— albeit in an unwritten form—and subsequently legitimized by being foregrounded in the political arena. Concerning the unwritten constitution, there are some scholarly efforts to clarify and dispel ambiguity surrounding this concept, yet it remains relatively unexplored in the Iranian context. There is thus a need to examine the foundations of legitimacy of the unwritten constitution, and distinguish it from merely political and ephemeral principles, rules, and procedures. In this respect, the present study tried to gain a deeper understanding of the unwritten constitution as a legal institution, shedding light on its most significant foundations through description and analysis. It aimed to address the following research question: What is the origin and source of legitimacy of the principles, regulations, and norms that do not derive their authority from the text of the constitution but nonetheless underpin the rights and freedoms enshrined in the text?

As a descriptive–analytical inquiry, the present study used a library research method and note-taking to collect the data from different sources in order to examine the foundations of legitimacy of the unwritten constitution.

The research highlighted the necessity of a comprehensive understanding of the unwritten constitution, as a relatively nascent concept within Iran’s constitutional law system. Such an understanding would necessitate the examination of foundations of constitutional legitimacy and their analysis beyond the confines of the national constitutional framework. The approach or methodology employed in identifying the nature of the constitution plays a crucial role in narrowing down or broadening its scope and substance. For example, the formalist approach would focus on the structure and contents as delineated in the codified document, with the constitution being perceived as synonymous with its official, written provisions. The approach towards constitutional legitimacy can significantly influence both interpretation and implementation of the constitution. Therefore, adopting an extratextual approach and embracing the overarching concept of the constitution beyond its textual confines can open pathways to a broader scope of individual and public rights and freedoms.Consider, for instance, the reason-based legitimacy approach, which rests upon the justice or efficacy of constitutional provisions. This approach bridges the divide between constitutional theory and practice, bolstering the legitimacy of unwritten principles and values. From this perspective, the constitution derives its validity and legitimacy not from its form nor the procedure of ratification, but rather from its substantive content and valuable objectives. Consequently, the legitimacy of the unwritten constitution rests upon the same fundamental principles and substance codified in the written constitution.Across all legal systems, it is inevitable to acknowledge the presence of an additional layer of the unwritten law alongside the written one. Unwritten principles exert influence on the implementation of written regulations, thereby limiting or broadening their scope. In this context, it becomes crucial to delve into the foundational reasons underpinning the binding nature of the unwritten constitution. The binding nature is rooted in the substantive realization of the rule of law, reliance on the requirements of natural and human rights, as well as the roles of key judicial bodies and the public in acknowledging and endorsing true principles and values of the constitution. This can delineate the boundaries of the unwritten constitution.

It is thus necessary to take heed of the concept of the unwritten constitution and its status within any legal system. The failure to provide a proper explanation of this concept can lead to increased discretionary opinions and decisions, thus causing ambiguity over the nature of practices, procedures, and rules within the constitutional law system. There is a risk that certain practices or official statements, when foregrounded in the political arena, might erroneously be perceived as integral components of the unwritten constitution, thereby gaining undue prominence.

The aim of this research is to investigate the legitimacy of Iran's political system between leadership as a religious and religious concept and republicanism as a western and new concept derived from the system It is the western politics that has been reflected in the constitution after the Islamic revolution. so; The challenges and jurisprudential-legal contradictions of legitimizing governance based on jurisprudence and people's republic in the Islamic Republic of Iran are examined in this research. The results of this research show that if there is any ambiguity in the interpretation of the people's right to sovereignty, it is necessary to pay attention to the constitution as a system; First, the position of the people as the creator of political power and the system of the Islamic Republic of Iran and the constitution should be considered as the product of the nation's will. In this assumption, the system of the Islamic Republic of Iran, as a creation of the people, must always be subject to its creator, that is, the nation, and thus, the creator of political power inevitably has the right of full and sole sovereignty. Based on this, the constitution has recognized the single sovereignty and dual and limited sovereignty is fundamentally incompatible with the principle of people's right to self-determination. Although in recent years, the people's right to sovereignty has been ignored in practice and institutions such as the Guardian Council have taken steps to Islamize the laws and also hinder the people's forces in the decision-making process and access to key institutions, but the people's sovereignty with The interpretations in the constitution prevail.

Referendum has always drawn attention as a direct tool for exercizing the right to self-determination and citizen participation. The most important question is what are the features and standards of a "good referendum" - as a fully-fledged indication of the citizens' will? As well, what principles and rules should a referendum have to be the real representation of the will of the citizens and in what context it should take place? In this article, through employing a descriptive-analytic method, while acknowledging the lack of a clear and comprehensive legal system for the referendum in Iran and taking into account of experiences of different countries, the principles and criteria of a good referendum, and the processes and stages of this democratic phenomenon are examined. Emphasizing the need to strenrthening the guiding role of the legal system for the referendum and taking it away from the realm of political games, it is finally proposed to formulate a comprehensive law on the referendum in order for determining all the elements and components related to a good referendum so that all actors in the field of the referendum act within an appropriate legal framework.

The constitution is described as the supreme covenant of social responsibility, whose effectiveness and accountability require prediction of a review mechanism. For this purpose, the Islamic Republic of Iran Constitution, in principle, sets out a mechanism for revision in Article 177 that is significant in terms of the role of the people in this process. The motivation for writing the upcoming paper was to answer the question: What capacities have the constitution of the Islamic Republic for the role of people in the Constitutional Review Initiation? In response, it should be said that Rule 177 merely considers the Supreme Leader to be competent to review the initiative. However, in this paper, in a descriptive and analytical way, examining the fundamentals of people's participation in the revision initiative, from the perspective of the fundamental rights set iv the constitution, which implies the sovereignty of the people, as well as the reflection of the basic legislative and loyalties of the present constitution, To strengthen the role of the people in the Constitutional Review and loyalty to the current constitution, steps have been taken to strengthen the role of the people in the Constitutional Review Initiative by parliamentarians or presidents.