جستجوی مقالات مرتبط با کلیدواژه « نظم حقوقی » در نشریات گروه « فقه و حقوق »

The thought and legal system in relation to the concreteness that traces the historicity of affairs, is a problem against what is observed by legal normativism. Legal norm with an abstract mechanistic view of concepts, categories and legal matters confront the determined reality, abandons concreteness and the historical view of affairs. Although concrete thinking about affairs among legal thinkers has different schools and sects, one of these significant and influential schools is Neo-Kantianism, which  at first appears to be in conflict with historical thinking about affairs, but throughout its continuity some of its thinkers such as Gustav Radbruch attempted to pay attention to the matter. While he maintaining the separation of "is" from "ought", he presented the historical in his thought, concepts and legal categories, and accordingly he considers the development of legal thoughts on the basis of historical periods and observes the specific definition of a certain type of human in each period. Dealing with the place and role of human in determining order and legal thought is one of the important insights that this perspective provides for the legal situation of Iran, especially regarding the codification of laws and statutes according to their own requirements.

Constitutionalisation means entering the legal rule into a group of fundamental rules that the government is obliged to support and implement. In fact, Constitutionalisation is a process of change and transformation that occurs due to the influence of basic norms in different trends of law and it may be as a result of imbuing the set of legal order with these norms.  In Iran, some articles of the Criminal Procedure Law approved in 2013 are in conflict with some of the principles of Constitutional law that are related to the Procedure. Based on this, it seems necessary to analyze the existing conflicts and examine the possibility of the criminal judge for referring to the constitutional law and not implementing the legal articles that are in conflict with the constitutional principles. The Constitutionalisation of criminal Procedure gives judges the possibility to refer to the constitutional law in the face of conflicting laws. In addition, it will be possible to invalidate the proceedings and decisions by the higher judicial authorities based on the contradiction of the ordinary law with the constitutional law. One of the tools to achieve this goal is redefining the principles related to criminal Procedure. Redefinition with using Constitutionalisation tool  give the possibility to the criminal judges to reach the mentioned results after knowing those principles that govern the criminal Procedure.

One of the most important challenges of any government is to maintain and promote public trust in order to achieve legal order and security and ultimately good governance. Therefore, this article has tried to express the position and importance of public trust in the legal system, the effects of reducing public trust on human security and legal order. Therefore, we have tried to study and explain the issue of public trust and the factors affecting it, in addition to direct factors, indirect factors such as political participation, social trust, domestic and foreign media and the like as elements affecting public trust in governments or trust Let's examine politics. Ultimately, the result of this article has been the concept that in order to create and improve a positive image of government performance in the minds of citizens, government institutions must make their performance transparent; Be responsible and accountable; Provide the ground for public participation of citizens in various decisions and areas of oversight; Reduce systemic and non-systemic corruption (such as bribery, embezzlement, smuggling and money laundering), extravagance and embezzlement to build public trust; The result is the establishment of legal order and security; Be provided.

International Law has it's Constituent elements (legal systems, regimes and collections of rules); Those have interrelations from which legal networks are created. Having this in mind, the question is whether these Constituent elements only have horizental nexus or are ordered by means of factors which unified them in a vertical manner and because of that International Law is named legal order. So if such a factor(s) does exist, hierarchy of norms in International law will come to in exist and so on normative hierarchy of International Law could be deemed. Among different modes of hierarchies (structural, substantial, logical and axiological ), this article is focused on substantial factor of Hierarchy of norms in International law which is best crystallized in International law in concept of Jus cogens. Among many questions of jus cogens, (Source of Jus Cogens Obligations, The Role of Consent in the Creation and Modification of Jus Cogens Norms, Scope of Concept of Jus Cogens, Function and Effects of the Jus Cogens), in this study Concentration will be on the theoretical foundations of jus cogens which shed light on all disscusions of the conceptual and practical aspects' of jus cogens to contribute to formulate a map of the doctorine of jus cogens.

International law, as a scientific trend, has various components (systems, regimes and (sets) of legal rules) that are united by the status or factors so as to become a system. One of the concepts claimed to act as unifying factor in the constituents of international law, making hierarchy and order is the concept of the jus cogens. However, there are controversies in different conceptual and scientific dimensions of jus cogens. After the formation of jus cogens, various views on the concept and definition of it in the field of international law have been emerged. These views can be categorized in two forms of classical and modern understanding of the principle. The view of this study is that the distinct teachings of the highly scholars of international law on the concept of jus cogens suggest that the one-dimensional perspective on jus cogens cannot be a reflection of the fluid and dynamic role of this principle in the modern international legal order. Therefore, nowadays, due to the complexity of international law, jus cogens must inevitably emerge in distinct legal forms and techniques, in order to be able to maintain its system-making feature.

Passage of time in the context of extinction of the right to take legal action as an imperative principle related to the procedural rights is of importance in the knowledge of law. This principle means that with the passage of certain length of time in law, the claim or complaint is no longer admissible. The importance of the matter is to the extent that by issuing order of inadmissibility in civil law and issuing order of suspending prosecution or suspension in criminal law, the execution of the pending judicial case with any degree of importance is declared as dismissed and thereby a kind of legal order is brought in the judicial structure of the country and the entrance and accumulation of millions of dossiers is prevented. This principle, however, which was applied in civil code of procedure before the Islamic Revolution, was declared as illegal in civil affairs after the Revolution with respect to the view of the majority of Guardian Council members, although it was approved in canonical punishments. The basic question is whether by alluding to the legal criteria, the passage of time can be exploited in the modern form of the civil law? In principle, what is the viewpoint of the Imāmī jurists in this respect? The writers maintain that given the legal mechanisms and the traditions extant in reliable legal sources and the viewpoint of some Imāmī jurists, the legal soundness or at least lack of legal problem of extinction of the right to take legal action by means of time lapse can be proved. Accordingly, hypothesizing that time lapse as causing or extinguishing the principle of this right does not have a narrative origin, the writers have undertaken to criticize the opponents of time lapse as extinguishing the right to take legal action, which is the viewpoint of the renowned majority of the Imāmī jurists, and have provided certain ways to reject it and to prove the legal validity of time lapse.

Establishing the European Union which goes back to 1950s and its success in achieving valuable goals puts forward this question that whether those successes can transfer to international legal order. In fact, advent of some regimes gradually in international legal order has led to so-called phenomenon of special or self-contained regimes. One of the best and prominent instances in this regard is the European Union. This regional organization has constituted effective norms and mechanism under which any invocation to general international law is on the wide extent limited. This paper is seeking to draw the characterization of EU legal order itself as a legal system and as a special regime in international law. In this respect, analysis of latter particular effect in the context of general international law will be present.

Civil disobedience is an issue that attention has seriously been paid to and its scope has been discussed in recent years. In Iran, it is regarded as a new concern as well. Correspondingly, there have not been any significant studies in this respect. The theoretical weakness in this area resulted in conducting a more precise and comprehensive study aimed at developing the public law literature in this regard. Accordingly, the present article seeks to answer this question: What position does civil disobedience maintain in the Shiite political jurisprudence, and the domestic and international legal system? In order to elucidate these viewpoints, we have employed a descriptive-analytic method. Investigating the international legal order, it was indicated that these sources have provided some requirements for the states in codification of law and decision-making. That is to say, they oblige the states to respect the recognized rights of citizens and hold citizens obliged to obey the government which has fulfilled its duties. Furthermore, through providing various reasons, it was proved that according to Shiite political jurisprudence, criticizing and pointing out the mistakes committed by the government are regarded as not only a right but also a duty for the citizens and, under certain circumstances, this criticism can take place in form of civil disobedience. In the system of Islamic Republic of Iran, as well, by way of observing certain standards, civil disobedience can be considered as one of the aspects of the Article 8 of the Constitution.

With studying the sources comprised the criminal law in Europe; it can be mentioned two different periods in Europe concerning with the sources of law. The creation of the concept of the Nation-State has caused a fund mental evolution in the sources of the criminal law and it has made deep differences and differentiations in the elements comprising law in the before and after the rise of the Nation-State. The sources of law especially in the era of the Rise of the Nation-State as an external reality have characteristics which they make for us know the nature of this period from one side and understand the nature of law feasible in pre-origin of the Nation-State from the other side. The present note in the first stage has examined the features of law before the rise of the concept of the Nation-State and the components and Characteristics of the modern law which it has formed in the shape of pyramidal system after the rise of the concept of the Nation-State. Today among the countries of the European Union (EU) (EU member countries), a new law under the heading of European Union law has aroused which besides their internal law can be practical. Governing of the new law and the way of its interaction with national law among the countries of the European Union (EU) causes the attenuation of the characteristics of the national law of the European countries or modern law and at the end challenging the pyramidal system.

The UN charter as the foremost instrument in giving birth to International contemporary order- has laid the foundation of a new regime which is deemed by many as a revolution against Westphalia order of International law. This profound evolution is chiefly based on introduction of sociological premises as the main guide line in framing the International order. Learning lessons from its short lived inchoate predecessor – The Covenant of the League of Nations 1919 – the new regime along with structural concepts، resorts to globalized normative sociological norms in its attempt to frame the new order. In realization of its set targets however، the system suffers a quite number of deficiencies; that is there exist norms and structures in the system that may adversely affect its desired goals. Nonetheless، the introduction of the new order under the auspices of the principles and the perspectives are set forth in the charter requires appropriate legal mechanisms in order to open door to realization of legal universalism era – a step forward towards further development of reciprocal order - a target desired while formulation of the charter was underway. Emerging of new International commitments serve as prominent legal tools to regulate and arrange the new order. Such rights and duties، which take various forms and consequence، are governed by corresponding legal regimes. These regimes، which have roots in their predecessors and any future generation of regime will be emerged، shall evolve based on the needs، requirements and developments that may arise time to time. This paper aims at studying International obligations and their corresponding legal regimes with regards to their existing status in International interactions.

This article first examines the structure in which legal norms are organized. Then، it deals with the relation between this structure and government، which is the creator of these norms. In other words، if as a consequence of the rule of law the government is limited with the legal norms، then how the legal system created by the government can limit it. Therefore، an attempt should be made to find the relation between legal norms and their structure (legal order) and also to find the relation between such legal order and government (as its creator) on one hand، and to find the relation between legal order and the model of government based on the rule of law، on the other. Accordingly، it seems that the duality of government and legal order، at least with regard to the public law، is inevitable. Considering their main nature، legal norms and their basis، including religious norms، are considerable matters، as far as their clearness and evaluability are concerned.

Constitutionalization is a process of change and evolution which is created through the effect of constitutional norms on various branches of law and as a result of integration of these norms into the legal order as a whole. Conditions for realization of constitutionalization of the legal order are as follows: Normativity of the Constitution, Interventionism of the Constitution, Creation of a Constitutional Justice, and Diffusion of Constitutional Norms in the Legal Order. Also, important effects of constitutionalization on the legal order are: Constitutional Regulation of Political and Social Life, Constitutional Guarantee of Rights and Freedoms, Purification of the Legal Order of Non-Democratic Norms, and Progressive Unification of various branches of law.