1 استاد تمام دانشکده حقوق و علوم سیاسی دانشگاه تهران
2 رئیس پژوهشکده حقوق و قانون ایران و قاضی پیشین دیوان عالی کشور
عنوان مقاله [English]
First: The ancient and the greatest branches in today’s law chart tree
Today's law is a vast pie chart tree, with many major and minor branches. There is heated discussion concerning what branches possess the deepest root, are the most ancient and of the greatest significant. In short, there is difference of opinion concerning the relative supremacy of certain branches over others with each major branch having its own partisans.
There is no doubt that civil law in particular, and private law in general, have historical precedence over other fields of law.
The emergence of the rules of property in the early stages of the formation of law is a sign that this main branch of law is more deeply rooted and older in all cultures throughout the world.
So, the title of the oldest and the most deeply rooted branch in the pie chart tree of law is undoubtedly belongs to that of civil law in particular and private law in general.
However, the question of which branch of law possesses the greatest significance and importance may have another answer and therefore the title of the most important branch may be bestowed on another subset of law.
For example, relying on Sermon 218 of the Nahj al-Balagha by Commander of the Faithful, one may maintain that public law is perhaps the highest and greatest branch of law.
Since it is stated in this verse: And the greatest right that God Almighty has made obligatory from the above mentioned rights is the right of the ruler over its subjects and the right of the subjects over the ruler. This is a duty that God has prescribed for each of the two parties and has made it a cause of solidarity between them and the honor of their religion.
In fact, it can be deduced from this precious statement that the greatest right that God has made obligatory among the different rights concerns the rights and relations of citizens and the government. It is also an obligation that God Almighty has set for each of them and made it the cause of their discipline, love, affection and the dignity and honor of their religion. Thus, the greatest of law is known other than the public law.
Of course, the inference this interpretation makes from the aforementioned sermon requires various prerequisite. First it must assume that the meaning of the phrase “the greatest" to be equivalent to “the highest or largest” and “the premier” and so on.
Second, we must assume that the word " ruler " refers to government in general and even more broadly to power and sovereignty in general.
Third, we must assume that the word "subject" refers to the nation or even the citizens, and it is obvious that proving these premises is not a simple matter and requires reviewing the rules of reading extracted from ancient texts. These rules are set forth in the science that deals with the principles of jurisprudence.
This task also requires identifying the semantic scope of these words, recognizing the relationship of a specific meaning of a word separate from its general meaning, synonymity and in-depth historical, literary, and analytical reviews, especially hermeneutic analysis that are beyond the scope of our present discussion.
However, according to this assumption that may be inferred from the appearance of the phrase, it may also be argued that perhaps those legal philosophers and political elites who overemphasized the role of the state as a force that generate and shape law and have considered legal rules incomplete, uncertain and unstable without state support, have had this sense of the greatest law in mind. They have emphasized that the rules of property rights and the stability and security of contracts require a prerequisite, i.e. the preexistence of rule of law and pre-existing guarantees in the field of public law.
What is certain is that there is a strong bond between "the ancient law" and "the greatest law" that should not be overlooked.
It will not be possible to establish, refresh, grow and develop the ancient law in the shadow of weakening the greatest law, which is none other than public law, since there is a strong relationship between the ancient law and the greatest law (private law and public law). Therefore, it is very important that the greatest law, like the ancient law, possesses the necessary tangibility, order, explanation and definition as is the case with the ancient law. But has this occurred?!
Second: The most important codified documents concerning the greatest law in the Islamic Republic of Iran
On the eve of forty three years of experience gained under the Islamic Republic, the question arises as to the status of public law as the greatest law. How much has it grown? In what documents is it enshrined and codified, and what are its coherent and presentable documents?
In our opinion, in addition to the Principles of the Constitution, the General Policies of the State and certain coherent and fundamental laws, two coherent, codified, comprehensive, and inclusive documents related to the greatest rights have emerged in recent years. These documents can be considered as the forty-year achievements of the Islamic Republic in its endeavor to enshrine and codify the public law and the greatest law.
The first document is the Charter of Citizenship Rights, unveiled and signed by the President on December 19, 2016, and the second is the Document on Judicial Security, announced in October 2020 by the Chief Justice.
Both documents have been codified based on general legal principles and various Principles of the Constitution and accordingly relations between citizens and the government as soverign authority have been organized and their mutual rights and obligations have been delineated.
The executive and practical version of the Charter of Citizenship Rights (the first document) became effective when its provisions were approved by the Supreme Administrative Council and came into force on January 28, 2017.
This decree was approved in 19 articles and X notes, and came into force within the framework of Article 20 of the Bylaw concerning the Law on Dealing with Administrative Violations of Employees. It is considered as one of the cases concerning paragraphs of Article 8 of the aforementioned Law, as the case may be.
In this enactment, 11 cases of citizenship rights in the administrative system were clearly identified and each of these rights was clearly explained in several paragraphs. The following are titles and cases of civil rights in the administrative system enumerated in Article 2 of the aforementioned decree:
1 -The right to enjoy human dignity and respectful and Islamic behavior 2- The right to enjoy impartial application of laws and regulations
3- The right to be free from discrimination in systems, processes and administrative decisions 4- The right to easy and fast access to administrative services 5- The right to protection of the privacy of all individuals
6- The right to be informed in a timely manner of decisions and administrative processes and access to needed information 7- The right to freely comment on and make suggestions in regard to decisions and administrative processes 8- The right to be protected from unjust terms in agreements, transactions and administrative contracts
9- The right of disabled people to enjoy full and timely special legal privileges 10- The right of a citizen to have his/her complaint and protest dealt with in a timely and fair manner 11- The right to be compensated for damages caused by negligence or fault of executive bodies and their employees.
In this decree, each of the cases has been described and delineated in different sections.
The second document that can be evaluated in this regard is the Document on Judicial Security, served to legal authorities on October 12, 2020.
This document was prepared in 37 articles and was approved by the Chief Justice on September 27, 2020.
The bases of this document for implementation are paragraph (b) of Article 120 of The Sixth Five-Year Plan for Economic, Social and Cultural Development of the Islamic Republic of Iran Act. The purpose of codifying this Document is to implement paragraphs 65, 66, and 67 of the General Policies of the above Act.
The totality this document falls into 4 general categories. The first part is dedicated to the purpose and principles of judicial security. Article 1 of the bylaw defines the purpose of judicial security as follows:
" The purpose of judicial justice is to build citizens' trust in the law and the judicial system, so that within its framework individuals can enjoy peace of mind and a sense of security in guaranteeing and exercising their rights and freedoms.” In the next seven articles, the principles of judicial security are enumerated in the following manner.
1- The principle of trust and legitimate expectation 2- The principle of non-retroactivity of law and abomination of punishment without declaration."
3- The principle of Nulla poena sine lege (no penalty without a law) 4- The principle of transparency 5- The principle of judicial independence and impartiality 6- The principle of focusing on judicial affairs 7- The principle of equality before the law.
The second part of the document, which contains Articles 9 to 18, describes "general citizenship rights" for the realization of judicial security. The titles of these rights are:
1- The right to be able to sue and have access to judicial authorities 2- The right to hear and be heard within a reasonable time 3- The right to a public trial 4- The right to have access to legal services
5- The right to privacy 6 - The restoration of public rights 7- The rule concerning full power of an owner to transfer or possess his/her property or the right to legal property 8 - The principle of compensation for damages 9 - The right to combat corruption 10 - The right to have diplomatic and consular protection.
In the third part of this document, "special citizenship rights in the judicial process" are described in Articles 19 to 30, and the most important of them are listed as follows.
1- Presumption of innocence 2- Absolute prohibition of torture and degrading treatment 3- Principle of personal nature of crime and punishment (not vicarious)
4- The principle double jeopardy 5- The right of objection and appeal 6- Prohibition of illegal and arbitrary detention 7- Enjoyment of welfare facilities and health care during the criminal proceedings for detainees
8- The right to have access to legal defense and to choose a lawyer 9- The special right of prisoners and those deprived of liberty 10- The right of convicts to restoration of dignity and re-socialization 11- Reliance upon general legal principles 12- Special rights of administrative proceedings.
The fourth part of this document is dedicated to the strategies of the Document on Judicial Security, which we shall not discuss for the sake of brevity.
In our opinion, the provisions of many general ideals and principles reflected in the Constitution and the General Policies of the State have been codified and entered into force by these documents and the ground for their reflection in the practical and daily practice of judicial and administrative organizations has been provided.
Thus, the legal, executive and procedural infrastructure for the realization of the greatest law of public law is provided by these documents.
Third: Emphasis on the scholarly nature and the public law branch of these documents
Since these two important documents mention titles and enumerate examples of privileges and rights of individuals, it is possible to imagine an aspect of these documents that classifies them in terms of subject matter as pertaining to personal rights, rights, privileges and powers. Such an interpretation conceptually separates them from objective rights (law).
However, what the authors have in mind here is to emphasize the scholarly aspect and the branch of public law of these documents, and consider them significant because they can lead to production of further scholarly and academic knowledge in the field of public law.
Of course, the emergence of two dimensions from these documents is due to the principle of mutual interconnection between different sciences and the reciprocal relationship of all human knowledge, since personal rights are derived from objective law and are nurtured by it. However, this should not induce us to forget the academic aspect of these documents and their ability to further our knowledge of public law.
The scholarly and public law aspect of these documents should be highlighted because, first;
The provisions of these documents are entirely imperative, since individuals cannot circumvent them by agreement and, moreover, neither can organizations ignore their provisions by enacting in-house regulations.
Second; The approving authority has initially and unilaterally codified the said documents. Therefore, its provisions are imposed on individuals and organizations and there is no need to reach an agreement on their codification.
Third; In terms of purpose and ultimate objective, the contents of these documents have been entirely in the interests of society.
Fourth; In terms of sanction, their violation had disciplinary sanctions, causes administrative malpractice and disciplinary penalties.
Fifth; Their provisions govern state and public organizations and affect their behavior.
Sixth; These documents are correlated to the exercise of the sovereignty of the government and its rules cannot be realized and imagined without accepting public and governmental authority.
Seventh; These documents are expected to form a basis for many citizens' lawsuits against the government in the Court of Administrative Justice and other judicial authorities.
Accordingly, the classification of these rules, the study of their bases, the identification of their main structure and research into their evolution belong to the field of public law, which is the same greatest law that has already been set forth. Even rudimentary familiarity with these rules cannot be attained by mere description and interpretation of its articles. Rather, it requires knowledge of its scientific bases and systematic analysis and awareness of its situation in other countries through comparative studies.
Fourth: The mission of legal researchers and scholars concerning the enshrined documents of the greatest law in comparison with the sources of the ancient law
What is certain is that scholars and researchers in the field of private law, by exploring, researching and scrutinizing its sources, have provided an extensive literature, production and development of indigenous scholarship in the field of ancient law has been provided and a firm bases for its comprehensiveness, rootedness and extensiveness have emerged.
However, the question is whether the greatest law and public law, which has been codified on the basis of these two documents, has been properly considered and researched by legal scholars, theorists and jurists.
In other words, this question is what are the responsibilities of academics, researchers, and legal theorists concerning these glorious documents?
What efforts has the academic community made in this regard?
How much of the country's research capacity has been used to explain, analyze and promote these important documents?
What questions has the ratification of these documents raised and what have been the tangible results?
What research has been carried out, or can be carried out to explain the origins, sources and philosophy of these documents?
How much interest may legal scholars have in questions concerning the what, the why, the nature and bases of these documents?
How much attention has been paid to research evaluation concerning the manner of implementation of these documents in judicial and administrative organizations?
What indications are available of the rate of realization or violation of these documents?
The provisions, clauses, and articles provided in these documents should be considered by researchers, research centers, and scientific and research journals.
It is necessary to examine the bases and examples dealt with in these documents in legal research workshops, to identify their advantages and disadvantages and to reject, override, confirm and correct them. Therefore, a special research effort must be undertaken to strengthen the foundations of the greatest law.
This will be effective in protecting private law as the most ancient law and the rules of ownership and stability of contracts shall also enjoy greater security.
Moreover, laxity in the field of public law studies, gives rise to the danger that the rules of private law will also be compromised by the tumult and disorder prevailing in public law, consequently, engendering future perils.