فصلنامه پژوهش حقوق عمومی
سال بیست و چهارم شماره 76 (پاییز 1401)

The proliferation of Coronavirus around the world and the need to maintain the health of individuals in society have forced many governments to impose restrictions on citizens' rights by imposing social distances, quarantine and closure of educational, economic and sports centers. One important action of governments in combating the spread of coronavirus is the digital tracking of people infected by coronavirus in some countries. This article seeks to answer the following questions. First of all, due to application of this policy in which aspect or aspects of protection of privacy can the states intervene? Second, given that the imposition of restrictions must be done where necessary, the question arises as to whether the restrictions imposed as a result of the digital tracking of people infected or suspected of having the corona virus and its transmission to other members of the community were commensurate with the need to maintain the health of members of the community. An examination of the various measures taken in countries around the world shows that the restrictions imposed on privacy can be justified by simultaneously respecting the health of the citizens of the community as well as the provisions of international human rights law.

Constitutional law is one of the most important fields of legal knowledge and its close connection with political science has led thinkers in the other fields of humanities to discuss the concepts and principles of this knowledge. Max Weber, one of the most important thinkers of recent centuries, has carefully reflected upon the knowledge of law, especially Constitutional law. He lived in a turbulent time and witnessed the rise of Germany as well as its decline. In the midst of World War I, Weber addressed Constitutional law issues and provided analyses in this regard and later played a vital role in drafting the Weimar Constitution. He was a supporter of the presidentialism and the extraordinary powers of the president, which were enshrined in the Weimar Constitution and later created many problems. This article aims to examine Weber's theory of Constitutional law and to explain his outlook and interpretation towards issues such as the president, parliament, and democracy

This research aims to indicate the roots of public law in the Constitutionalism in which the prerequisites for the citizens of the country to participate in public affairs as well as the basis for developing the concept of political participation were provided. This study examines the topic in the works of one of the famous jurists of this era. The concept of political participation should be developed by restricting both claims and obstacles. First, it had to constitutionalize the independent monarchy that it considered the whole country as its absolute property, and then recognized an authority for the public in public affairs, which was previously under the authority of the jurists. Both of these obstacles were removed through the concept of political equality. It was for years that concepts were being prepared in the workshop of Constitutionalism to create equality of humankind. Even a concept like representation was the result and implication of the concept of political equality. Within concepts such as "common house", "thirty crores" and "public affairs", the notion of political equality of the people of the country was developed and with the help of such foundation, thinking about such concepts was made possible. The present paper indicates that the emergence of these concepts was a sign of a fundamental change in the basis of sovereignty and its transfer from the king to the people on the one hand and the establishment of a kind of the public authority on the other hand.

Since the state responsibility refers to the accountability of the state to individuals, its nature relies more than anything on the nature of the relationship between individuals and the state. Given the Rousseau’s relying upon modern subjectivity, this relationship has entered into a new phase which is different from the former outlooks especially that of Hobbes. Adopting an analytical approach, this article deals with the question, "what does Rousseau's approach to the relationship between individuals and the state imply about the concept of state responsibility?" This essay concludes that due to Rousseau's perspective about the unity of state and individuals, basically there is no duality which holds one responsible against the other and the responsibility of states to individuals is equal to one’s responsibility toward itself.

The International Court of Justice is empowered, under Article 41 of its Statute, to order provisional or interim measures of protection to preserve the respective rights of the party-states pending final judgment on the merits.  Through interpreting Article 41, the Court has developed in its case-law certain requirements for granting requested interim measures. The plausibility of claims is the sixth requirement recently added to the said requirements. The present research assesses the role of plausibility requirement in preservation of international human rights in light of evolution of this requirement in the court’s case law as well as the existing legal doctrine. The study indicates that an inconsistent approach to satisfaction of the plausibility requirement and prejudgment of the substance of the case could harm the transparency and predictability of the procedure governing provisional measures, and undermine such measures as one of the most effective legal mechanisms in preventing the breach of international law.

Citizens' right of access to information as well as the regulation of the system of classification of administrative documents are two important issues in examining the function of a state. In principle, everyone has right to access all information, and regulating a system of classification of documents to restrict access to information is an exception, and it could be possible where there is a higher interest than that of right of access to information. The way of limiting the right of free access and determining the instances of confidentiality is the main issue of the confidentiality system governing the administrative documents, and it raises the question that who is the authority to determine the confidentiality of administrative documents and its classification system? Also, how is it possible to declassify the documents? Using a comparative approach, this article endeavors to study the similarities and differences of the classification systems of Iran and the U, S, and while reviewing the system of declaring the classification of administrative documents in the United States, investigates the system of classification and declassification of documents in Iranian laws.

The history of the evolution of legal thought indicates the contentious process of the interaction between metaphysics and reality. Meanwhile, notions such as law and justice, and in general, natural law, being the criterion for evaluating justice in the legal structure, have a more complicated situation. Petrazyski's idea on intuitive law should be considered as a new framework for the mentioned interaction; as modern natural law is based on the preeminence of metaphysical rule over reality, and classical natural law also seeks static metaphysics to provide the ground for its interaction with reality. Thus, they could not be admissible. Petrazycki endeavors to seek a dynamic metaphysics which he finds it in dynamic subjectivism. Individual intuition is another expression of this type of subjectivism which leads to the intuitive right and intuitive justice. However, one may ask whether this type of metaphysics be the foundation and even superior and evolutionary framework of law?  In fact, Petraziski does not believe in such a foundation, and as a result, his metaphysical interaction with reality cannot be maintained in the framework of idealism.

Protecting human dignity as an inherent and inviolable right is one of the most important obligations of the government even when a person is liable for his criminal behavior before the law. Adopting a descriptive-analytical method, the present study endeavors to answer the basic question that based on the procedure of the European Court of Human Rights, as an innovative and developed international judicial body, what elements should the courts consider when issuing a judgment in order to impose a punishment protecting the human dignity? After reviewing some judgments of the Court, the research concluded that by observing some formal and substantive principles such as justification of conviction, charge bargaining, ne bis in idem principle, citation of high quality laws, proportionality of offence and punishment and non-recourse to severely painful punishments, the human dignity of offenders is safeguarded. Accordingly, in case of non-observance of the mentioned principles, the legal systems would be exposed to serious human rights challenges, because states' lack of attention to the human dignity of criminals, would make the repressive nature of states to prevail over the fundamental rights of citizens.