نشریه حقوق بشر و شهروندی
سال سوم شماره 2 (پیاپی 6، پاییز و زمستان 1397)

The Court of Administrative Justice in Iran, as one of the great achievements of the Islamic Revolution, has had a high and valuable position in the Iranian judicial system and has had a great impact on citizenship rights. Part of the citizenship rights of individuals in society is related to their rights in relation to government departments and organizations and public non-governmental organizations, which, due to the nature of government public rights, are on one side and there are private individuals on the other who defend their personal interests. They say that this inequality may lead to the violation of citizens' rights, so guaranteeing and protecting the public rights of citizens against and dealing with departments, governmental organizations and public non-governmental organizations in the law of organization and procedure of the Court of Administrative Justice is important in the jurisdiction of the Court of Administrative Justice. Is. Laws related to the organization and jurisdiction of the Administrative Justice Court have undergone various changes since the establishment of this institution, and the Law on the Organization and Procedure of the Administrative Justice Court was approved as the last will of the legislator in 2013. Revealing its shortcomings and weaknesses, the plan to amend articles of the Law on the Organization and Procedure of the Court of Administrative Justice has been announced in two stages in 2018 and 2021. Citizenship rights have been studied.

Public law in Iran have been influenced by the French legal system since its inception. Consequently, the foundations of public law in Iran were also influenced by the thought of French lawyers. One of these is the "separation between public and private law" that occurred in France for political and social reasons. Another important ground in public law is the "institutionalism in public law” which was influenced by theorists such as Maurice Hauriou. The third basis is the French interpretation of "rule of law" which had a special place for the French scholars. These bases in public law which are the results of the thought of Bordeaux and Toulouse schools and the practice of the French legal system in the past, now it also affects Dr. Ghazi’s legal thoughts. These issues have manifested itself in the form of government and the separation of powers, pure legalism in solving legal problems and inflation of laws, the emphasis on the formal rule of law, process, rules and standards relating to the legislation and enforcement of laws in the country, the rules and general principles of Administrative law and many more.

Judicial decision-making is one of the most important and obvious situations in which the effect of conflicting opinions of different schools of law can be clearly seen. Judges on whether laws should be applied "mechanically" as much as possible. They disagree. What role moral arguments should play in judicial decisions, what is the meaning of applying moral considerations, and what moral sources can be used; There are different views. The discussion of the relationship between law and ethics and the intervention of ethical considerations in the issuance of judicial rulings is one of the ancient issues of "philosophy of law" and is a challenging and old debate and encompasses a wide range of views. It leads to the maximum overlap of law and ethics, on the basis of which different philosophical schools emerge.In the present article, which is a descriptive-analytical research based on the documentary method, an attempt has been made to examine different views in different legal schools and in the Islamic judicial system in terms of the degree of interference of ethical considerations in issuing judicial opinions. To what extent do they allow the entry of moral norms into the opinions of judges?

The extent and manner of government intervention and interference in the affairs of citizens has always been discussed by thinkers. This has led to the intersection of the good and the benefit of society and the freedom of individuals, sometimes thinkers tend to either side. In other words, the role of each in different ideas determines the scope of government intervention in various matters. At the same time, the question that arises is to what extent governments, in addition to the benefit of society, have the authority to enter the individual sphere of individuals in order to benefit them (prevent harm). Some, by introducing the concept of legal fatherhood, believe that the government intervenes in individual spheres, like a father. This issue can also be followed in Islamic principles. Therefore, the question arises that what is the relationship between legal fatherhood and Islamic principles and whether legal fatherhood is compatible with Islamic standards? Using a descriptive-analytical method, after searching for Islamic concepts, the author believes that legal patriarchy is generally justified by the rule of no harm, prohibition of self-harm, philosophy of religion and enjoining what is good and forbidding what is evil.

The growing spread of empiricism has also affected the social sciences, including law, and created the school of legal positivism. According to legal positivism, all concepts, including legal rights and duties, must necessarily be passed through positivist filtering. This idea wants to make law a science like the natural sciences. In contrast, the divine schools of law are rooted in revelation and have completely different epistemological foundations. The most central concept in the changing world of law is the concept of "right". This article tries to make a descriptive and analytical comparison of the concept of right in the two schools of legal positivism and the legal school of Islam. It seems that legal positivism and Islam in the axes of the origin of the right, the relationship of the right with moral and extra-legal values, and the scope and examples of the right, there are serious and sometimes conflicting differences regarding this concept. In positivism, the right is in fact the law of the subject, but in Islam the law of the subject must be based on the right. Positivists believe in the separation of moral values from laws, but in Islam, laws derive their validity from moral values based on sharia, and the range of rights in the Islamic approach is wider than the positivist approach, and includes spiritual and divine rights.