liberalism

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.

The discourse and theories of governance are among the important subjects in the field of public law. Liberal and constitutional states, despite their theoretical and sometimes functional differences, share certain common elements as theories of governance in their essence and foundation. Among these shared elements are freedom, equality, and impartiality of the state. The variations in the understanding and interpretation of these elements and their interrelationships are the most justifiable reasons for the emergence of different types of liberal and constitutional states within the broader scope of these elements. This descriptive-analytical article suggests that the differences in liberal schools of thought have their roots in the perception of the "freedom" element and its relationship with other elements. Depending on the prioritization of the quantity and extent of individuals' enjoyment of fundamental freedoms or the prioritization of the quality of people's enjoyment of these freedoms, other elements, such as equality and impartiality of the state, assume different natures and functions. The formation of classical liberalism and egalitarian liberalism can be attributed to this very matter. John Rawls distinguished freedom from the value of freedom by establishing two principles of justice. He rejected the mere enjoyment of freedom without considering the quantity and quality of people's enjoyment of it. Rawls interpreted the value of freedom as equal enjoyment of it by all individuals, and his views on the elements of equality and impartiality of the state aimed to uphold the value of freedom and enable a greater portion of the population to enjoy these freedoms.

This article provides an analysis of the evolution of democracy and the impact of abuses within political systems on electoral processes. It explores the historical development of parliamentary election systems worldwide, considering their susceptibility to manipulation and abuse. The study employs a comparative analysis of different parliamentary election systems, including majority, proportional, and mixed systems, to assess their vulnerabilities. Furthermore, the article examines the influence of economic interests on legislative decision-making, potentially undermining democratic principles. The central question addressed in this article is whether certain parliamentary election systems are more susceptible to manipulation than others, and how they consequently affect the trajectory of democracy. The article references democratic developments, proposes potential solutions, and introduces an expertise-based electoral system as a suitable approach to strengthen democratic mechanisms while mitigating the influence of economic elites in legislative processes.

The intrusion into the nature of the liberal rule of law as a dominant discourse in modern public law and the awareness of institutional rationality and its limits are of great importance. Accordingly, the purpose of this study is to examine the components of the liberal rule of law from the perspective of two well-known thinkers in this field, Hayek and Nozick, and to explain their legal teachings. Findings of the present article, based on descriptive-analytical method and collection of information through libraries, show the link between nomos and thesis in the legal system, critique of distributive justice and advocacy of modified democracy, emphasis on the meta-legal doctrine of the rule of law and finally setting the normative and institutional framework in Hayek's ideas, on the one hand, and the application of the natural state, the dominant protectionist association, and the social contract to justify the minimal state, acceptance of the minarchy versus anarchy, advocate of entitlement justice instead of distributive justice, and limitation of government functions, the components of the liberal rule of law in the intellectual system of these two thinkers organize that Contemplation in this area has made its differences and similarities with the contemporary rule of law in Iran and efforts to solve the shortcomings of the domestic legal system inevitable.

The legal system of the Islamic Republic, as the name and content suggest, is based on the duality of republic and Islam. The republic has modern tools and foundations, the most important of which are rationalism, humanism, secularism, libertarianism, egalitarianism and democracy. None of these principles necessarily appear to be fully and absolutely compatible, at least with the current conception in the West, with the Islamic principles of the current state. In addition, the quality of analysis and expectations of Islam is not immune to debate and theoretical pluralism, so that always in response to the possibility of merging Islamism and republicanism, another important question that immediately arises is which reading of Islamism with which model of Republic? Also, in addition to the mentioned difficulty, the distance between idea and action in the Islamic Republic should be considered, so that the emerging practical features in the legal system of the Islamic Republic of Iran indicate or result from the special historical course and the quality of the personal role of the founders. It is a complex and special image of the system. In the study, I intend to show that as a result of the special course that the constitutional rights of the Islamic Republic have gone through, a special and historical model of the combination of republic and Islam has emerged, which can be considered as a kind of Theo-aristo-democracy.

Privacy between couples is one of the rights that some deny it and others protect and advocate. However in human rights instruments, man and woman even in their relations together enjoy the right of privacy that is necessary for their human dignity, but the domain and quality of this right inside the family is different from other social institutions. Governments sometimes breach the privacy of citizens in accordance of their political goals. Some policies such as increasing or decreacing population may be put the privacy right at the risk of breach and in most countries legal systems, lawmaking for protection of privacy in family life is neglected. Some States only criminalize breach of the right and do no more effective actions. Nowadays development of technologies and communicational tools, delimits domain of application of the right and active interference of States to lawmaking and executive actions to ensure human rights in family is more important.

The approach of liberal and Marxist thinkers, as the two dominant ideas in the twentieth century on freedom, shows their worldview on the issue of freedom and fundamental rights of individuals. The question is, which theories liberals and Marxists hold on the concept of freedom which was gained based on historical experience over the past century? Also, to what extent, are their views towards individual rights and freedoms of their citizens and recognition of these rights and freedoms in practice different from each other?! In Berlin's view, Liberals conception of freedom is negative as opposed to Marxists which is a positive conception. Having considered the historical experiences and Marxists and liberals’ views in the last century, it seems that what guarantees the free will and constitutional liberties of individuals is the negative conception of freedom while the positive conception of freedom could lead to denial of free will and ultimately tyranny. Therefore, the main purpose of this article is to study, compare and determine the status of freedom (especially the common interpretation such as negative freedom and positive freedom) in comparison with the principles and rules governing the two political ideas of liberalism and Marxism.

From 1976 onwards, Michel Foucault began to study the state and state power in detail under the genealogy of the modern state. In the face of the linear and centralist views of power, which he saw them as a legal perspective to sovereignty, Foucault coined the concept of governmentality to analyze conflicting and often obscure roots of the present discourses, practices, and institutions. But since Foucault has dealt with this issue in a very scattered way and among his various writings and speeches, there is no coherent text in this field. Therefore, the purpose of this study is to examine the three descendants of the modern state, namely pastoral power, reason of state and liberalism, to determine how Foucault, by adopting a different approach to power arrangements, crossed the legal perspective and created a new foundation for the study of government. This perspective, which examines the lineages of the modern state on the basis of the triangle of governmental mentalities, rationalities and technologies, makes us to consider the concept of the state as a complex, multi-temporal phenomenon and a combination of various political techniques and different styles of government. From this point of view, the genealogy of the modern state can replace the theories that, by adopting a linear, essentialist, and theological perspective, create a flawed picture of historical developments

The Scientific Revolution in the 17th century, followed by industrial advances in the 18th century, set the stage for two major developments in urban space and urban planning; At first, classical liberalism emerged with an emphasis on the concepts of freedom and the reduction of state influence in the economy, and then there were sudden and massive changes resulting from the Industrial Revolution in cities. The entry of liberals into industrial cities had detrimental consequences, such as increasing class divisions, creating rich and poor poles, and inequality in the realization of citizenship rights for citizens. In the late nineteenth century, with the advent of the debate over the need to pay attention to the lives of different classes of citizens, liberal thought shifted to a focus on social welfare through a free economy, and neoliberalism was born. The present study seeks to explain the position of citizenship rights in urban planning based on the idea of neoliberalism with a descriptive-analytical approach. The data required for the research have been collected through documentary studies and have been qualitatively analyzed to determine the basic components of citizenship rights. The results show that in neoliberal urban planning, the social and civil dimensions of citizenship rights are emphasized with the aim of improving the level of social welfare.

Contrary to what may seem at first glance, critical international law is not an international narrative of critical legal studies. However, critical legal studies (CLS), along with global critiques of liberalism, have made an effective contribution to the development of critical international legal theory. The present paper, with the purpose of explaining a broader concept of critical international law, seeks to show that any approach to international law, which by questioning and re-reading its belief system and procedures, seeks to policy window opening and show inconsistencies between the promises and the ends of international law and the existing reality of international relations, or in other words seeks to show the distance between the status quo and the desired state of the international legal order, and refers this inconsistency to the limitation of the structure or functioning of the international legal system, and provides agendas towards transformation or renewing the values, structure or function of this system, generally has a potential critical capacity. A review of the most prominent examples of critical approaches in the international law scholarship and the examination of their fundamental claims, along with expressing the most important criticisms, shows that the critical approach by emphasizing problem-raising rather than problem-solving and a redoubled attention to the role of international lawyers, offers a great potential for the gradual and progressive development of international law, and by confronting the depoliticization of international law, seeks to participate more actively in re-shaping the global legal order. From this perspective, the critical approach is an episteme towards hope, dynamism, and evolution.

As far as the considerations in a contract are concerned, the concept of ‘Contract Equilibrium (CE)’ attempts to follow equality requirements. However, due to the conflicts CE has with voluntarism and its foundations, i.e. liberalism and individualism, it has not been able to find appropriate position in the Classical Contracts Law (CCL). This conflict is not merely with voluntarism itself, but with its subsidiary principles; i.e., freedom of contract and unilateral irrevocability. The principles which due to the pretexts of preserving and re-establishing CE, prevent the interference of the content of the contract. Hence, CE violates the coherence of the law established on the basis of voluntarism. Further, that would not be lucrative to justify the exceptional rules relevant to lesion and change of circumstances via the use of CE. Owing to such contradictions and inefficacies, the aforesaid concept is missing from CCL. After all, CE has currently won a decent position in modified legal order, as a result of putting the mentioned principles under question and drawing on the social thought of contract.

Possessing divine spirit and reason, man is intrinsically and originally a creature that has dignity and free will; and these two are God-given favors which are equal rights of all people all over the world regardless of their race and color. Preference on the grounds of nationality, race, color, skin, fortune, wealth and social, family or national status, etc. is forbidden and contrary to the dignity which mankind has in essence. Using a descriptive-analytical method and attempting to examine and analyze the relationship between dignity and freedom both in Islam and liberalism, this essay answers the important question concerning the difference between the view of Islam and liberalism about dignity and its relationship with freedom. The research findings indicate that, emphasizing on intrinsic dignity and complete subject to freedom of man, liberalism suppresses any behavior or act that has limitation or subject to conditions, and considers that these two qualities (i.e. dignity and freedom) are never and in no way detachable from man, even if he commits the most awful crime, and also, his dignity knows no limitations, he has complete freedom of choice and none of his actions can strip him of intrinsic dignity. According to humanism, self-founded wisdom and complete freedom are the foundations of intrinsic dignity. As for the revealed school of Islam, in addition to its exposition of intrinsic dignity, pays attention to man‟s axiological dignity and his value-based freedom; i.e. it is by virtue of his struggle that man reaches this rank of dignity and thus providing the grounds for his growth and sublimity. This kind of dignity rests on solid foundations the most important of which are: the state of being object of angel‟s worship, Divine vicegerency, trustworthiness; God-given knowledge; having control over the existent, the state of being the noblest of all creation; having freedom and authority; piety as well as reason and divine fitra (innate nature).

 Inspired by Machiavelli, Carl Schmidt considers politics to be the realm of reality, not ethics. Therefore, he observes the basic concepts of modern state theory in a historical context: the theological concepts have become secularized and replaced the omnipotent transcendental God with the absolute Sovereigns. Later, the modern wisdom with the ideal of the“rule of law” displaced the absolute rulers from the throne of the throne, and replaced the plural and degenerate pseudo-diviners. Pseudo-diviners who are sometimes bladed against themselves. And all the controversy is the same: the modern state guarantees the order and stability of society. Therefore, it is necessary to maintain it and not to blade against itself. Here the Schmidt's claim to describe "what the ruler is" finds a prescriptive aspect: if the political is tied to the absolute ruler, he must "restore the personal character of sovereignty and make it indistinguishable again." But what presuppositions and implications the retrieval of this sovereign would have for international politics and how much its worldview is successful in explaining the facts of contemporary international law? We believe that "Schmitt's success in explaining the contemporary international law bares its Hobbesian foundations. At the same time, the only way to abandon Schmitt's ingenious doctrines is to leave his realistic playground and move from the point where he escaped, namely, ethics.

One of the most controversial issues, as well as complicated and fundamental concepts in international legal system and international relations, is the debate on the national interest between different schools. Theorists and analysts have used the concept of national interest to study and analyze the objectives, goals and behavioral patterns of international actors and the states’ foreign policy. The paper methodology is trying to analysis the most important theories - Realism, Neorealism, Idealism, Marxism, Anarchism, Liberalism and Constructivism - around the so-called national interests and also important theoretical frameworks in this context. Therefore, it is attempted to provide a theoretical evaluation of this concept between above mentioned theories so that to fill the gap of national interest Assessment by the major theories of international relations.

The study of the basis of legislation in the ideology of liberalism and Imamieh religion can clarify the difference between legislative processes in the countries believing in these two ideology. Precision in the principles of liberalism, including individualism, liberty, privacy, pluralism, and Laicity, shows that the basis of liberal legislation is "Autonomy". The accuracy of the Imamieh's theological principles, such as the monopoly of legislation for God, the comprehensiveness of religion, the conclusion of the Prophet (pbuh), and the authority of the jurists during the time of absence, also represent the "god decree" as the basis of the law. Therefore, the basis of legislation in these two ideology is in fundamental conflict. In the meantime, liberalism has a philosophical, cognitive, and logical critique that has exposed it to various criticisms

Perfectionists contrary to “The idea of Neutralism and Moral pluralism” recognize promotion of a good life as a duty of the governments. The main objective of the criminal perfectionism approach is to invoke the “Principle of Limitation of Freedom” for the evolution of personality, protection of common moral values and advancement of citizens’desires that are subject of criminal law. They believe that, it’s not right to leave alone citizens for their individual desires, because persons are not necessarily the best judge in assessment of right from fault in their life. In this study, it was tried to examine and scrutinize this idea, in criminal law and ethics, on the one hand, and political sovereignty instruments in establishing a perfectionist approach in the society, on the other hand. It’s worthwhile that states drive their perfectionism to the valuable options like establishing educative centers, cultural centers and media training, and also avoid from unnecessary criminal conflicts and insecurity of public area by employing non-coercive tools.

According to Article 1 of the Universal Declaration of Human Rights the notion of “Fraternity” is recognized as a human duty and as it stipulates: “All human beings … should act toward another in the spirit of brotherhood”. While The Declaration is partially influenced by religious terms such as “Fraternity”, most of its concepts are based on Western individualistic philosophy which suits the social and economic structure of liberal societies. This paper is an attempt to find whether the notion of Fraternity which requires “to be responsible toward others”, “sense of human unity”, “generosity” … could be applied in liberal societies and accepted as moral values. For this purpose, it studies the concept from three different perspectives: Philosophical, Ontological and Values of the liberal societies.

Given the view of Liberalism to the human being and the freedom as well as the extraordinary development of this thought in the world and its differences with the Islamic principles, it is necessary to criticize the foundations of this school of thought from the viewpoint of Islam in various fields. Using a documentary and descriptive-analytical method this research criticizes the foundations of this theory to clarify the challenges of this thought from the point of view of Islam. This research seeks to study the foundations of Liberalism specifically, though some researches have been done in critique of Liberalism in general.

As one of the components of modernism, in theory and practice, liberalism draws from Protestantism and the movement of religious reform in the sixteenth century. It has become a social movement that advocates individual freedoms and liberation from the constraints of any political organization. In sum, two bases can be mentioned for liberalism: an individualistic basis and a socialist basis. Reflecting on these two principles of liberalism, it can be regarded as an intellectual tendency and politics, which includes general principles such as freedom of expression, separation of powers, free market economy, and so on. The theory of the liberal state was a political-economic theory and the constitutional government was one of the foundations for its establishment. Adam Smith played an important role in developing this theory. The most important principle of the liberal theory of the state is that the government has no preference and superiority over other institutions. In fact, state is a social institution among the other institutions and should not interfere in other institutions. With regard to liberal government, there are three different perspectives: the unnecessity of state, the minimum government, and the maximum government or welfare state. Today, each of these perspectives identify liberalism with the theory of the minimum state, but by looking at the most liberal countries, it is clear that government in influential in many parts.