نشریه اندیشه های حقوق عمومی
سال هفتم شماره 2 (پیاپی 13، بهار و تابستان 1397)

The human existential structure has been built in such a way that it requires a series of needs in his life. The root of these needs is constant, but the resolvers are constantly changing. The changes can be seen in the requirements of time and space; therefore, the continuation of the human beings' collective life is inevitably affected by these changes. The element of time and space, as two effective factors in making changes, has raised the question of whether the attitude towards "the Guardianship of the Islamic Jurist" affects the discretionary punishments. In other words, in the theory of conditional guardianship, is it possible to punish based on Sharia law in the present time? If not, what are the components in Absolute Guardianship that allows for systematization in accordance with the requirements of time and space? What is the ratio of that component to law and regulation? and finally, how those requirements will be met in punishing. Using a descriptive-analytical method, this paper studies the impact of time and space's requirements on the discretionary punishments with an emphasis on "the governmental rulings", claiming that, these rulings are a gathering factor of changes to the Islamic constant rules. This paper provides examples in this area.

Historical studies and attention to the development context of scientific theories in order to consider their evolution and to utilize the logic, understanding and answers of the ancestors for solving human joint issues, such as governance, is an issue that its necessity is clear. As an accepted theory in modern constitutional laws, The study of the separation of powers along with its historical course provides a more precise understanding of it, and to study this historical course even in Islamic governments is the purpose of this article. This article, in documentary manner and descriptive-analytical method, seeks to study the position of the separation of powers in the West, and also in the first and other Islamic governments. The result of this research states that the separation of powers, although has been posed as an intrinsic value in some past Western theories, is considered by the Islamic scholars like Islamic governments as a methodic value. In addition, what has been emphasized in Islamic governments is the division of duties (instead of the separation of powers) for more efficiency of these systems.

Local councils in each country are considered to be the examples of decentralization, minimizing the government, public participation in local governance, improving the local administration, increasing the role of people in decision making, and formation of local institutions. The number and competency of these councils are different in each country, and its comparative studies give more information about their strengths and weaknesses. Therefore, the Provincial Council of the Islamic Republic of Afghanistan and the Islamic Council of the Islamic Republic of Iran will be implemented and compared in this paper. Reviewing the constitution and the normal rules related to this issue in both countries shows that, local councils in Iran are older than local councils in Afghanistan, and in terms of authority, the local councils, including the Islamic Council of the Islamic Republic of Iran, have more jurisdiction. According to Article 139 of the Afghan Constitution, the principle of supervision is not recognized as one of the competences of Provincial Councils; while the legal rights of councils, including the Islamic Council of the province, have been recognized in Article 100 of the Iranian Constitution. At the same time, in accordance with Article 106 of the Constitution of the Islamic Republic of Iran, if the Islamic councils are dissolved, the councils have the right to object that in a competent court, but this right has not been given to the council in accordance with Article 11 of the Provincial Council Law. Finally, the Council's closure in emergency situations has not been foreseen in the constitution of the Islamic Republic of Iran, but, in accordance with Article 9 of the Provincial Law, the Provincial Council of Afghanistan, will be shut down until the problem is over, in province or provinces in which an emergency situation is declared, in accordance with Article 143 of the Constitution.

The challenge between cultural relativism and universal human rights has been proposed for a long time, and the ratification of the Universal Declaration of Human Rights, and then the next two generations of the international human rights have been its milestone. Analyzing the fundamentals and the history of this confrontation, this paper examines the concealed assumptions of any one of the opposing arguments. Many empirical evidences of cultural relativism are indisputable, but on the one hand, relativity of values and ethics are not logically and instinctively defensible. This paper shows that these two views do not necessarily conflict with each other in practice; rather, there are ranges of theoretical and practical concepts on both sides, which have the potential for overlapping and peaceful coexistence. The distinction between universal and conceptual universality, universality in the realization of human rights, historical and anthropological universality, legal-international universality, functional universally as well as methodological and essential cultural relativism, contribute to the conceptual coexistence of these two perspectives. Also, adopting an interdisciplinary perspective on this challenge over the past decade, including cultural, philosophical, historical, legal and political studies has an important role in resolving the ambiguities, the interpretation of the dimensions of universality, and the cultural relativism of the human rights.

Nowadays, it has been proven that the monetary and financial resources of advertising as well as the expenses of the candidates for their electoral competitions have a positive effect on the election results, since; a widespread advertising coverage has a huge impact on the success of a candidate. The oversight body (Guardian Council), which is responsible for both health and approval of an election, must be aware of the advertising expenses given the circumstances. Therefore, it must have control over the financial and monetary resources of the candidates to ensure that these resources are not provided by unauthorized means such as illegal groups, foreign countries, embezzlement, bribery and government facilities. It is also important to check whether these expenses have affected the real will of the people or not? Of course, achieving such a hypothesis is not simple. Using a descriptive-analytical method, and given this introduction, and in accordance with paragraph (4) of the general election policy, presented by the Supreme Leader, and according to the rules and regulations, this paper states that, there are virtually no specific rules on advertising expenses, and the actions of the oversight body without an executive mechanism will be fruitless.

Given the shortcomings of the non-religious management theory and the Western administrative law model, the lawmakers of the Constitution of the Islamic Republic of Iran, strongly rejected the bureaucracy emerging from tyrannical sovereignty, and thus, in the article No. (10) of the third principle of the Constitution, they considered "the establishment of the proper administrative system" as one of the duties of the government. Despite this ratification, there has not been a specific reference to the constituent elements and principles governing the proper administrative system by the Constitution. So this question arises as to what the proper administrative system is? And what are its principles and components? Certainly, given the principles, the paradigm and the explicit constitutional orientation regarding the sovereignty of the Islamic rules over all laws and regulations, "the proper administrative system" from the standpoint of the lawmakers of the Constitution is "the Islamic administrative system" and its components and values, which is based on the values such as justice, efficiency, order, rationality and the competence of the officials and employees. Of course, it should be noted that although there is a rational and effective mechanism for establishing a proper administrative system, but there are also problems in deploying and generalizing these components and principles. Therefore, in addition to avoiding obsolete administrative systems, the Islamic legal rights and the governing jurisprudence researches for designing the proper administrative system should be done based on the Divine revelation, and the advanced human experiences. Using a descriptive-analytical method, this paper seeks to investigate the components and principles of the correct administrative system along with its legal issues and effects.