فصلنامه پژوهش حقوق عمومی
سال بیست و یکم شماره 63 (تابستان 1398)

Public policy-making is considered as the most important manifestation of government’s ruling, exertion of authority and arrangement of public affairs based on the “rule of law”. Public policy-making cycle, from think tank and policy-making to assessment and supervision is formed in relation to basic/fundamental rights and therefore, under the influence of the legal and political system, its position and function would be different. In the Iranian legal system, the concept of “general policies of the system” has legal and political affinity/relationship with public policy-making. However, as the result of the existing legal vacuum, its position and function is questionable and accordingly strategies and solutions implied in the process of public policy-making cannot be utilized in assessment and supervision of general policies of the system. Hence, in order to utilize the capacity and capability of “public policy-making” within “general policies” concept in the structure of basic/fundamental rights system in Iran, this legal establishment shall be placed in the procedure of Constitutionalisation in two different but coordinated courses by separating minor and major departments. Therefore in the process of localization, this concept is redefined based on Iranian legal system.

This article sheds light on the origins of the Rule of saving the system (hifdh al-nidhām) in both theology and jurisprudence. The article insists the broader sense of the Rule and its close relationship with social order. While mentioning some examples of the Rule in juristic issues, the article explains the importance of a transcendental and virtue-based discipline as it is conceived in the Rule. Also the article clarifies the connection of the Rule with saving the government. According to the article, the implication of the Rule in Islamic jurisprudence is more connected with protection of social order in its broad sense. Although the Rule relates to saving and protecting a good government as a necessary element of the society, it is more protecting the disciplines and systems made by human being. The insistence of the rule on social order is not limited to Islamic society and/or saving an Islamic government. Therefore, every human discipline as far as it helps the survival of human being and the quality of its life should be respected. The article also points out the ideal concept of the discipline and the potentials of the Rule for making a better social order.

Analyzing current definitions of public properties in Iranian legal system indicates that distinction between these properties from State properties cannot be sought in criteria such as devoting to public services, the ability to confiscate, style of utilization, conformity of public properties from civil and commercial laws. Also existing approaches about the issues such as “relation between public properties and State-owned companies' properties” and “rules governing public properties” are facing criticism that necessitate the redefinition of public properties. In this research, it has been endeavored to redefine the public property according to criteria of Iranian constitutional law system such as interpretation of civil law according to the Constitution, with regard to the effects of the concept of sovereignty; in such a way that, while respecting the fundamental legal-jurisprudential frameworks, the efficiency of the State in utilizing public properties shall be taken into accounts. According to this redefinition, public properties (in the general sense) unlike private ones, are properties devoted to public benefit and belonged to legal person of public law and consisting of State properties, State-owned companies properties and public properties (in the strict sense). These properties can be divided into “original or subordinate” public properties and "national or local" in the domain of State ownership. The redefinition will have many practical legal effects in the legal system.

Advances in aerospace technology especially in the 20 century unveiled a new kind of aircraft as (remotely piloted aircraft) which is deployed in military and civil application. In recent years, the civil usage of this aircraft has influential advancement and with no doubt in the future, this new technology will have a great advancement. Some believe that by inventing and increasing the use of this new technology and taking into account the capabilities of these aircraft, the aerospace has become a serious concern and a potential threat to civil rights. Almost all countries are encountered with the same challenges with the use of RPA and their impact on the privacy rights of people. In this article, the effect of the use of RPA on the privacy of the people and the necessity observance of this right at the time of concluding of regulations on the operation of the mentioned aircraft considering the economic and social benefits of the deployment of this technology, are considered and emphasized.

The Prosecution is one of the most important public institutions in the realization of the rule of law and the protector of political rights and freedoms. However, there is no theoretical basis or practical practice regarding the position of this institution among the three powers. Affected by the legal structure and historical and political issues of each country, four factors have been influential in the formation of the position of the Prosecutor's Office: the executive structure; the structure of the judiciary; the independent prosecution; and the elected prosecution, which makes it impossible to introduce a desirable and ideal model for all systems. However, this paper will attempt to examine the four factors and concerns about the prosecution's position among the three powers. These factors include: the independence of the prosecutor's office; the separation of the Prosecution and Adjudication; and the need for prosecution policy-making and accountability. For the desirable position of the prosecution among the powers, it is necessary to strike a balance among these four concerns and effective factors in accordance with the political situation and the historical context of the formation of powers in any legal system.

International rivers that traverse the territories of different States are subject to their exercise of the principle of territorial sovereignty. Utilization of these rivers and performance development plans by each of the riparian States will have impacts which may affect the rights and interests of other riparian States. Rules of international legal order relevant to international rivers have regulated legal relations among riparian States for the prevention of disputes and conflicts. Turkish government launched Güneydoğu Anadolu Projesi (GAP) and scheduled the construction of the Ilisu dam on the River Tigris. The operation of this dam in the future will diminish the Tigris water flow to the territory of lower riparian States such as Syria and Iraq. This diminishing effect indirectly plays an important role in developing arid and desert areas and leads to the intensification of dust haze, especially in Iran. This article examines international obligations of Turkish government with regard to the utilization of Ilisu dam.

In evaluating some theories of public law, the observation about the link between those theories and ideology is more often made in a critical spirit, in order to impugn the mentioned public law theories. The question posed in this article is how to define “ideological theories of public law”. This involves three fundamental steps. First, defining the concept of ideology; second, the exposition of the theory of public law; and third, answering to the questions of the consequences of ideologicization of mentioned theories.In order to establish a legal definition of ideology as used in the current essay, and in the absence of a unified definition of this concept amongst scholars, initially general and specific notions regarding the concept of ideology have been outlined. Subsequently, from these outlined definitions, focus has been on those that are closely related to public law theories. Consequently, an exposition has been given into how a theory of public law becomes ideological at four different levels of origination point; approach; content; and function. Finally, the question of “how the ideologicization of public law theories adversely affects these theories” has been answered.

Legal expressions and concepts are abundant in the numerous fundamental texts of the modern political thought. The language of law has been one of the main means within which discussions about political thought has been taken place. Therefore, when these texts are translated into other languages, the meaning and the content of the legal expressions and concepts in terms of their scope and connotations shall be considered. Only in this situation one can rely on these translations and they deserve to be cited. So the revision and reconsideration of these texts from the legal concepts point of view seem very useful and necessary. In this paper, focus has been on the public law expressions and concepts of the Persian translation of the Leviathan and their precision and accuracy is evaluated.

Illegal performance of the flagship is one of the issues discussed in the Convention on the Law of the Sea, for which the guarantee is not enforced. Nevertheless, the capacity of the legal principles and international environmental instruments and the jurisprudence of international authorities is pivotal. Judicial procedure of international authorities also rely on the ‘precautionary principle’ and ‘Due Regard’ of the flag State. The guarantee of cooperation between flag state and flagship with coastal State and the regional fisheries organizations is considered as shared obligations and responsibilities of the parties. However, this approach is a kind of pledge done that is not accompanied by a guarantee of liability for the compensation to the coastal state. However, the coastal state's approach to the denial of the credibility and reputation of the flag State for the illegal operation of its ship is only a guarantee in order to prevent repetition of similar cases in the future.

Pension funds for maintaining the balance of resources and expenditure invest in different ways; one of the most common practices is owning companies’ stocks. The tendency of many pension funds to this type of investment have led to the management of companies. Management of companies by pension funds (in the sense of having a stock management) as an emerging issue in the legal literature of our country has faced different regulatory policies; some are limiting or prohibiting and others are prescribing. Even though the legislator's last determination was to ban the company management of Iran's pension funds, some have gone too far from their social goals by forming investment companies. This essay using a comparative approach and library analysis, after explaining the legal status of firms has tried to analyze the background and reasons for company management of pension funds including paying of government debt to funds, capital market restrictions in Iran and entrepreneurial profitability. The findings show that if pension funds want to pay more attention to the rights of their members, it is necessary to significantly reduce the company managing, establish balancing through acquisition of shares of investment companies and other investment practices.

Even though in the works of legal scholars, some notions regarding the characteristics of legal norms are included, the systematic approach to this issue has been established in this century. The necessity to investigate characteristics of legal norms, good legal norms, and qualified legal norms, is raised from the practical experience influencing the thoughts and opinions. As a tool for the adjustment of human communication, law is meant to follow goals such as limiting the power, fighting despotism and defending citizens’ rights. Yet, the law itself is encountered with deficiencies hindering it from achieving the goals. The contemporary scholars have put efforts to resolve the deficiencies to introduce the “law” as the true useful tool for society. Investigating the deficiencies and solutions has formed thoughts regarding the “quality of law”. In the present study, the bases and necessity of such investigations and studies is discussed. The present account of writing is divided into three sections: the essence and goals of investigating “quality of law”, necessity and reasons for investigating the issue, and the similar terms and definitions used erroneously as the quality of law.