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

Many legal scholars consider the ultimate goal of public law to be the establishment of a rule of law state, which is a minimalist state limited to legal structures that are as depoliticized as possible. The emphasis of some thinkers on maximizing rights and minimizing politics in the state stems from a Kantian approach to the concept of the common good, as humans can be more equally accepted before the law, but this equality is largely distorted and compromised in the political sphere. The legal state state has manifested itself in various forms of thought, from ancient Greece to liberalism and even Islam, but its main origin can perhaps be traced back to the liberal tradition, as this tradition has paid more attention to limiting the powers of the state through law.Friedrich von Hayek, as a libertarian from the Austrian school, presents one of the most extreme theories of the rule of law state. He proposes a minimal state limited to judicial oversight, both over the people and over the state's own administrative actions, and denies the need to establish other state institutions, including the legislative branch. In this article, we will examine the fundamental principles of Hayek's thought in order to ultimately be able to criticize the result of these foundations, namely Hayek's conception of the rule of law state.

In press crime, perhaps lower court acquit or convict accused based on jurie’s opinion. The conviction is appealable based on article 43 (3) of Press law 1986, but about appealable of acquittal (no guilty) the law is silent. Is that appealable based on general rules or legislator contemplated to special expediency? 42th branch of supreme court base on inference of 43 (3) of Press law 1986 and foundation of Press law, which is based on liberty of press, upheld acquittal judgment issued by lower court, a non-appeal judgment (final); a judgment that is conform to the nature press activities and liberty of press law.

An act or decision that results in a restriction of an individual right can be considered proportionate if a person pursues a legitimate aim and uses a logically coherent tool that entails the lowest cost.Therefore, the proportionality test is based on the cost-benefit analysis. The proportionality principle is a structural and methodological tool as well as an intelligent procedure for reviewing the actions of public authorities. One objective of the Administrative Court of Justice could be to ensure that the actions of officials and institutions are proportionate by directing them toward the legislative goals and preventing departments, organizations, and their employees from violating the law or using disproportionate measures. The principle of proportionality can help achieve this goal. However, the examination of the noted institution's approach does not reveal any systematic and structured implementation of the above-mentioned principle. In some cases, an implicit respect for the principle of proportionality can be observed, although the opinion in accordance with the above principle is not cited.

Economic freedom is the basis of business freedom in any economic and legal system, whereby the citizens of society have the right to choose any business according to their ability, expertise and personal creativity. This important and fundamental principle and the duty of the government to guarantee and support it has been and standardized in the Constitution of the Islamic Republic of Iran, domestic laws and international documents. In order to judicially monitor general decisions, realize the principle of the rule of law assert individual and social rights, the General Board of the Court of Administrative Justice has issued opinions in various lawsuits in order to support and guarantee this right and perform its inherent special task. The findings of this research, which were issued in a descriptive-analytical method and along with the criticism of lawsuits and judicial opinions, indicate that the most important aspects dealing with cases are: with the principle of licensig authority, paying attention to the principles of competition rights in licensing, The subject departure of some professions such as notary and attorney from the concept of business, which shows the more accurate understanding and special support of the Administrative Court of Justice of this economic right compared to other regulatory authorities executive institutions. The interpretation and explanation of the concept of freedom business in the Administrative Court of Justice can be a judicial guide for legislative and regulatory institutions in applying and implementing the freedom of business and protecting this economic right in its true sense.

In today's age, when human rights are applied in the context of being a citizen, and the same citizen is under control and imperceptible surveillance in all aspects of life, and at the same time, he is in danger of suspension of the title of citizenship and direct violence of the ruler and the law. Minimum human support under the title of human rights system is denied to millions of refugees and displaced people who have no place in the territory of the nation-state. It is in such a world that the first step to confront and resist the pressure of life is to be aware of the situation that all We are in it. The concept of freedom in the discourse of human rights, which is itself within the political discourse of the nation-state, as its essence and central signifier in opposition to the institution of the nation-state, has the same contradiction as in the theories of the social contract. By raising the question of what is the position of the concepts of freedom and power in the human rights discourse of the Islamic Republic of Iran, while explaining and exploring the nature of human rights and the foundations of the formation of this discourse, it is of the opinion that human rights have been a political matter until now and if To be able to assign a role to this discourse beyond its political nature, that is,

Ayatollah Seyyed Mohammad Hosseini Beheshti is considered one of the most prominent founders of the Islamic Republic of Iran, as his name is associated with the name of the Constitution, the rights of the nation and the rights of citizens in the history of the Islamic Revolution. The present descriptive and analytical essay has been written with the aim of explaining and understanding the elements of citizenship rights in the thought of Ayatollah Beheshti as one of the prominent jurists and jurists of the Islamic Revolution. The findings and results show that Ayatollah Beheshti, due to his familiarity with religious foundations and familiarity with schools and political systems, as well as his detailed knowledge of the conditions and requirements of the country, played the greatest role in explaining the elements and components of citizenship rights such as the right to freedom, the right to social justice and the right to security in the early years of the victory of the Islamic Revolution, he was able to include these elements in the constitution of the Islamic Republic in the process of drafting, compiling and approving it, as well as legally establishing the rights of citizens and democracy, and guaranteeing the safety of the society from the return of tyranny and autocracy.

Citizenship rights are the set of fundamental rights that a person has as a citizen, which includes the principle of legitimate freedom, the principle of acquittal, the right to access a lawyer, the right to access a competent court, etc. The constitution has given special attention to these rights and the Islamic Council has protected them in the law respecting legitimate freedoms and protecting the rights of citizens. Every human being is a human being regardless of his/her thoughts, ethnicity, and language, and as a human being, he/she has human dignity and rank; for this reason, his human dignity cannot be undermined with any excuse. On the other hand, every person in any society has a series of fundamental and necessary rights that must be respected and protected by the government. Based on this, the present research aims to compare the single article of the Law on Respecting Legitimate Freedoms and Protecting Citizen Rights and answer the question whether the concept of freedom and examples of freedom are the same in both human rights and citizenship rights documents. This article is of a descriptive-analytical type and its results showed that due to the security orientation of the new law in accepting citizenship rights, the legislator has considered the aspects of caution and in some cases has set some limits regarding the claim of moral damages.

The verse "Yaza Anham Ashram" is one of the verses about the issue of freedom. After the Islamic revolution, special attention has been paid to the issue of freedom, but it is still seen that there is no precise understanding of it in the Islamic society. The correct concept of freedom in societies has not been explained as it should be and it has caused some kind of social damage and misinterpreted the concept of freedom and interpreting it as nakedness and absolute freedom in speech and behavior. This research tries to interpret the freedom in the verse "Yaza Anham Ashram" from the point of view of famous commentators with emphasis on the interpretive opinions of the Supreme Leader in order to explain the concept of freedom well. This issue is investigated in various matters, which in this research, from the point of view of commentators, has been dealt with analytical-descriptive method. From the findings of this research, three categories of interpretation can be expressed. In most interpretations, freedom in the mentioned verse means freeing the children of Israel from heavy duties. In some interpretations, freedom is interpreted as freedom from the chains of ignorance. The third sentence is extracted from the statements of the Supreme Leader, he interpreted freedom in this verse as freedom from the system of tyranny, oppression, carnal desires and humiliation

Public opinion is one of the tools through which public oversight of the state is exercised.  Public oversight of the state, in turn, is one of the most important mechanisms for guaranteeing citizens’ rights and maintaining the stability of the state. Public opinion can turn into civil disobedience if it is truly formed and ignored by the state. Citizens' enjoyment of social freedoms, the form of government, the manner by which state authorities are elected, are among the factors influencing the formation and influence of public opinion as one of the most important elements of power control in any country. Explaining the role of public opinion in controlling state power, this research examines how public opinion is formed and how it exerts influence. The paper will also study the exercise of supervisory power by public opinion from the perspective of public law.

The Universal Declaration of Human Rights is one of the most important texts of international law. Its effect shows that it is not unfounded. Now the question is, what are the basics of the declaration, especially its basics about justice and freedom? Because the introduction and the text of the declaration consider freedom and justice as the most basic human rights. To understand these basics, it is necessary to have a brief look at the ideas raised in the philosophy of law in order to understand the place of freedom and justice in the Universal Declaration. This article analyzes the principles of the Declaration by focusing on the ideas of Kant and Hume about justice and freedom. This analysis is based on a case study of several evidences from the preamble and materials of the Universal Declaration. The Universal Declaration of Human Rights is the result of epistemological and philosophical thoughts in modernity; therefore, the foundations of this declaration should be sought in the thoughts of the great philosophers of this era. Although the modern era has seen great thinkers, the ideas of Kant and Hume have been turning points in the history of the philosophy of law and politics in this era. The findings of this research show the alignment of the declaration with Kant's thoughts in the field of justice and freedom. Although Hume had a significant influence on modernity, the theme of justice and freedom in the Universal Declaration was more influenced by Kant than by Hume. In Kant's view, freedom is an important feature in human life. It can almost be said that Kant's intellectual foundation in the field of practical reason is based on freedom. This shows that Kant considers justice and freedom as an eternal and inalienable right and value. In fact, Kant considered freedom as a comprehensive and absolute principle that does not depend on the will of the legislator; like other liberals who considered freedom as the highest value and justice as subordinate to it. The writings of these two thinkers in the field of justice and freedom show the ups and downs of justice in modernity, as a result of which Hume's ideas lost their effectiveness due to numerous problems, and after that, Kant's beliefs were able to give new life to legal and political liberalism, which is the product of It is the Universal Declaration of Humanity as a comprehensive prescription for the development of liberalism. Despite the abundance of writings about the Universal Declaration, the difference of this article is in determining the relationship of this declaration with justice and freedom based on the reading of these two thinkers. Not to examine the general concepts of justice and freedom or their relationship with the general concept of human rights.

Hegel is a philosopher who studies the concept of the state with his multifaceted philosophy and his special methodology. On one hand, he criticizes the views of different schools of thought about this concept and believes that the government is not a mechanism to maintain peace, enforce rights, or promote benefits beyond its own existence, and only in this capacity can it be recognized by everyone as a right. On the other hand, in his theory, the divine and intrinsically purposive government is trying to incorporate all the desirable features of these schools, despite all these criticisms. notwithstanding this paradox, this research, whose sources have been collected through the library research method and descriptive-analytical study, aims to prove the hypothesis that the Hegelian state emerges from within the traditional liberal and democratic state-building philosophies in a special and distinct way. It is trying to answer the question “What are the characteristics of the ideal state in Hegel's view, In a practical look at the political philosophy of the state?”, The results show, while proving the hypothesis; that contrary to the extreme collectivism of Rousseau and the abstract individualism of Lockean liberalism, Hegel's state is ‘a reasonable and inevitable institution of society that everyone must recognize its by force and accept its obedience’. Research Question(s) What are the characteristics of the ideal state in Hegel's view? Literature Review Several research papers have been published Related to the subject of the research, including; Zahra Vashqani Farahani's thesis titled: "State Theory in Hegel's Political Philosophy" published by the Faculty of Literature and Humanities of the Islamic Azad University (Central Tehran Branch), as well as an article titled "The Importance of Hegelian Separation, State and Civil Society" written by Azim Rahin, Prepared and published in No. (1.2) of Social Sciences Quarterly. However, the distinct feature of this research is the examination of Hegel's paradigmatic view of the government, which is in many ways against or in favor of democracy and liberalism.

Considering that research in most humanities disciplines is mainly focused on theoretical solutions, the present study has used a library research method to collect the desired data and examines the data with a descriptive-analytical method.

Hegel's philosophy, methodology, and valuable critiques present an outlook that thinks about modernity, instead of being oriented towards the Enlightenment era of his time. Because, basically, from Hegel's point of view, modernity is a bridge in the evolution of the soul towards freedom, and in this way, the self-awareness of the soul is the most important characteristic of the new era. In summary, for the purposes of this research and its main question, what is certain is that Hegel rejects the political theory of social contract that philosophers such as Locke and Rousseau established and views them as inefficient abstract concepts and, by rejecting the abstract idealism of "Reason" and the empiricism of "History" as an independent and durable ground for authority, established a dialectical relationship between reason and history and thereby resolved some of the contradictions raised in the state's founding phase. He also, based the political right on having an independent nature from the state and supports the concept of political right where it maintains its idealistic aspect, but is based on a certain historical era. On the other hand, even though Hegel criticizes the extreme collectivism of Rousseau and the abstract individualism of Lockean liberalism, his divine and intrinsically purposive government tries to incorporate all the desirable features of these schools and support them. Hegel's goal was to achieve the desired political power system for Germany, and so in this way, he presented his government specially and distinctly from the democratic and liberal state-building philosophies of his time.But what are the characteristics of Hegel's ideal government? The key to understanding this question lies in the ideal concept of political right in Hegel's belief and his opinion about the inherent rationality of the state. From Hegel's point of view, the state is the manifestation of realized freedom and the perfect ethical life. Therefore, the state is an ethical soul that emerges in the form of an essential will by becoming more transparent and definite. Therefore, the state is nothing but "the action of the spirit in the world" realized in a self-conscious form. But since the soul in Hegel's philosophy has an absolute, and even divine essence, according to Hegel's definition, the state is God's will in the world. Such a government is not a responsible or parliamentary government, and this was at a time when the belief in a responsible government was considered the most important feature of 19th-century liberalism. Overall, by studying the philosophy of rights that Hegel talks about, it cannot be said that he does not explicitly accept responsible government, nor can it be said that he explicitly rejected such a government.

Arbitrary detention is not only contrary to natural and fundamental human rights such as the right to freedom, but also hinders fair proceedings and the realization of justice. The present article tries to study the issue of arbitrary detention in the Islamic legal system and international human rights documents using a descriptive-analytical method and using library sources. The findings of this comparison show, firstly; Because the international human rights documents that are compiled for the rights of the individual only emphasize on individual freedoms and social security is often kept silent in these documents, which happens to be the result of this silence is the confusion of social security with the position of statesmen and this issue is related to the many examples of arbitrary arrests and Using this tool leads to suppression of opponents. On the contrary, in the Islamic legal system, individual freedom and social security have been dealt with in a balanced way, and the issue of social security has been separated from the security of the rulers, and the examples of legal arrest have been limited to cases of social security violations. Secondly; It is possible to object to arbitrary detention in both legal systems. Thirdly; Regarding the possibility of receiving damages due to detention, there is no prohibition in both legal systems, but the human rights documents have proposed the type and method of compensation in more detail.

Freedom is one of the most important blessings and one of the most obvious natural and basic human rights, which has been considered among the most controversial issues throughout the centuries and ages. One of the types of freedom is the freedom of the body, according to which a person can do whatever he wants. This type of freedom has been supported for a long time, and even today, international declarations related to human rights and the basic and ordinary laws of different countries support it in various ways. On the other hand, establishing public security and protecting people's privacy and rights in dealing with threats and possible aggression by abnormal persons and violating the rights of others has always been one of the main concerns of the guardians of the judicial justice system. In this regard, the application of prison sentences as a reaction to denying freedom against criminals and lawbreakers is a common method in most countries of the world. The idea that the application of this punishment will reform and socialize the criminal and prevent the repetition of the crime, and on the other hand, it brings intimidation and general deterrence and prevents potential criminals from repeating the crimes, is one of the most important justifications for the prison sentence. Although professors and legal scholars have dealt with the issue of the pathology of prison punishment in various articles, but since this issue is important and it should be considered, different aspects of the issue have not been examined. Therefore, it was felt necessary to deal more with this issue. The main objective of this study, while using the library research method, is to identify the judicial and executive gaps of this punishment and provide suggestions to compensate for the shortcomings and achieve the relevant goals.

In the system of the Islamic Republic of Iran, despite the acceptance of the description of the republic for the system and the adoption of an important legal framework of the "Constitution", it seems that the requirements of this description and format have not been carefully and completely considered and elaborated. However, by diluting its concepts, it is thought that the necessary alignment can be easily created. A review of the Islamic Republic's forty years of experience shows that many challenges are the result of such an easy-going approach. In this article, we intend to show that the Constitution is not a neutral and flexible document at the disposal of the ruling power, and its basic and conceptual requirements must be understood and considered in the context of modern public law. Therefore, the Constitution is one of the fundamental concepts of modern public law and is therefore considered as the object or result of the "social contract", the indication of the primacy of freedom over power, and a document and text of the "present" that must be interpreted dynamically and up-to-date, taking into account public opinion. At the same time, it cannot be interpreted in a way that ignores or diminishes the basic principles of modern public law, such as the legality of crime and punishment, or the limitation of power and the incompetence of public authorities.

The origin and concept of human rights is one of the most controversial issues in the philosophy of law, on which the schools have deeply imposed inconsistency. Therefore, the present study utilizes a descriptive-analytical view to examine the viewpoints of some theorists of natural laws and positivism schools to show how the mentioned philosophical-legal discourse has given a new form to the relationship between human rights and politics through institutionalizing a conception of law as manifestation of fundamental rights. The resources were collected through library method. In this regard, the main research question is “what are the effects and consequences of this historical dispute in the interactions of the two rightful concepts of “government” and “citizen”? The results show that naturalists consider human nature or the rulings of the "natural god” as the origin of the creation and imposition of these rights. On contrary, the positivists believe that moral values created in this way cannot establish a fair order of rights. Therefore, they do consider human rights just as a legal system dependent on a certain society. This is an intellectual controversy that eventually led to issuance of the Universal Declaration of Human Rights after World War II, in a form inspired by the positivist legal order and with a nature as of human rights.

In religious democratic societies, whose criminal policy model is freedom-oriented, the belief in the idea that freedom is an undeniable natural right for the members of the society, and the activities of the government are aimed at preserving and observing the rights of individuals along with the principle of the rule of law and Belief in equality is considered an institutionalized value, of course, unlimited freedom is not an unlimited value that is a license to harm others, but freedom is within the framework of Islamic rules and in line with the holy law and Sharia.

The current research is applied in terms of type and purpose, and descriptive in terms of nature and method, and information was collected through document review and data collection.

The findings of the research show that in democratic societies, the maximum effort in line with the etiology of delinquency is to prevent the development of controlled spaces and the priority of preventive measures is incremental action; In such governments, the dominant aspect of the structural views of crime prevention and community security based on the criminological findings of social reaction, the realization of the minimum standards of social justice by governments through social, economic, and cultural changes based on respect for dignity and It has been human dignity.

In this paper, the ideas of Heidegger and their impact on the philosophy of public law has been analyzed. The common point between Heidegger's thoughts and the philosophy of public law is their view of human beings, which is based on the existential dignity and human nature of law. In fact, if we are to consider the influence of Heidegger on public law, we must go back to issues related to the inherent dignity of human beings. From Heidegger’s point of view, the roots of the current human crisis lie in the ignorance of human essence. Moreover, the effect of Heidegger's special type of anthropology on the formation of man and his place in society and the legal system should be discussed. This paper attempts to analyze some aspects of this approach on the basic teachings of the philosophy of law. Therefore, we will first discuss the place of man in Heidegger's thoughts and then examine the effect of Heidegger's views on human rights in the philosophy of public law within the framework of concepts such as humanism, human rights, sovereignty in the modern era, freedom, democracy and technology.

Determination of lifestyle is a natural right of every person, but absolute freedom in how to live causes the norms to be broken and the values of society to be trampled on. In liberal societies, too, such a choice is a fundamental right of individuals and a natural right; Of course, as long as it does not lead to violation of the rights of others or disturbance of order. Otherwise, the government justifies its interference in the freedoms of individuals on the principle of harm. In other non-liberal societies, the government severely restricts freedom of choice of lifestyle and deprives the right to “how to live” Ideologically. This expansion and contraction in choice are influenced by different criminal policy strategies. The result of this descriptive-analytical research is that what can be desirable in today's open and pluralistic societies and in order to protect and guarantee the rights and freedoms of individuals, is the existence of a criminal policy with a minimalist and regressive strategy. It is only in light of such a strategy that “social justice” is established, and all individuals find a constructive presence in various areas of social life.

The present study aims at assessing the status of the private sphere in the legal system of Iran as a Jurisprudence-based one in a comparison with Germany’s. The modern state has such limited the scope of private sphere that the privacy of family as its most important element is dubious. The private sphere exists and forms the human society besides the public sphere and the state only when it is subject to the supplementary rules of private law and the state does not regulate its relations with the mandatory rules except for observing the international human rights. The research method is a comparative study of Iranian and German family law with a deductive approach. The findings imply that in the German legal system, the state guarantees human rights requirements, especially freedom and equality in the family, but its intervention is not limited to this and beyond it, it limits the private sphere and, as a result, the personal rights. In Iran, the state also regulates family relations comprehensively, although this regulation is not necessarily intended to observe human rights. The result of the research demonstrates that in modern relations between the state and the nation, the family is not legally considered to be a part of private sphere, and this means that the scope of the private sphere is limited to the privacy.

The rule of law and liberty are key subjects of legal philosophy that have received serious attention in Iran  since the 1905 Constitutional Revolution. In this connection, the dispute over establishing a relationship between secular and sharia aspects of life and its relevance to achieving individual freedoms has been the subject of Iranian public-law philosophy.This article examines some of the theories that have been formulated on this issue since the Constitutional Revolution, and attempts to critically analyze efforts to establish the rule of law in Iran. The main question of the paper is how have theological and legal theories on the relationship between secular and religious matters developed during the past hundred years in Iran? The main hypothesis of the paper is that jurisprudential theories have evolved from law-sharia dualism to the centrality of sharia law.