Journal of Comparative Law

Journal of Comparative Law

In the Pursuit of the Normativity of Laws: A Comparative Study of the Procedures of the Guardian Council of Iran and the Federal Constitutional Court of Germany

Document Type : Research Article

Author
Assistant Professor, Member of the Faculty of the Ministry of Science, Research and Technology, Tehran, Iran.
Abstract
Normativity, which is based on the rule of law and the requirement for punishment of law, is one of the most important qualitative features of the law. The enactment of laws lacking normative principles will certainly threaten the legal security of citizens. On the other hand, the role of the constitutional courts in monitoring the normativity of law can be analyzed. Inspired by the French Constitutional Council's procedures, an examination of the procedures of the Iranian Guardian Council and the German Federal Constitutional Court reveals instances in which these institutions, in addition to applying laws to the principles of the constitution (and sharia in the case of Iran), have also considered the normativity of laws.
This article seeks to answer the question: What is the basis of the legitimacy, criteria, and manner of control of the Guardian Council of Iran and the Federal Constitutional Court of Germany in monitoring the normativity of laws? A comparative review of the procedures of the Constitutional Courts of Iran and Germany shows that both institutions are not far behind their traditional constitutional features in monitoring the normativity of laws, and the normativity of laws is governed by constitutional and religious scrutiny and they control the normality of laws through basic and sharia supervision.
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Bibliography
Abdolahzadeh Shahrbabaki, Azadeh. “Theoretical Basis for the Discussion on the Quality of Law: Concept and Requirement.” Public Law Research Quarterly 21, no. 63 (Summer 2019): 295-317. [In Persian]
Abdolahzadeh Shahrbabaki, Azadeh. Daramadi Bar Keyfiyyate Ghanoon. Tehran: Enteshar publishing company, 2022. [In Persian]
Aitken, V. E.  “An Exposition of Legislative Quality and its Relevance for Effective Development,” Accessed July 4, 2013. https://www.luc.edu/media/lucedu/prolaw/documents.
Austin, John. The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence. London: Weidenfeld & Nicolson, 1980.
Bentham, Jeremy. Theory of Legislation. London: Trubner, 1932.
“Bundesverfassungsgericht.” Accessed July 15, 2023. https://www.bundesverfassungsgericht.de   
BVerfG, Judgment of the Second Senate, 2 BvR 2365/09, 04 May 2011.
BVerfG, Order of the First Senate, 1 BvL 6/10, 17 December 2013.
BVerfG, Order of the First Senate, 1 BvR 1299/05, 24 January 2012.
BVerfG, Order of the Second Senate, 2 BvR 2436/10, 17 September 2013.
BVerfG, Order, 2 BvR 1487/17, 24 July 2017.
Constitution of the Islamic Republic of Iran. [In Persian]
Favoreu Louis. Les cours Constitutionnelles. Translated by Ali-Akbar Gorji Azandariani. Tehran: Jungle Publications, 2014. [In Persian]
Ghoroghi, Jalil, Gholamhossein Rezaei, and Mehdi Hoshyar. “Criteria for Separating Substantive Laws from Formal Laws in Terms of Goals, Characteristics and Function in Iranian Criminal Law.” Quarterly Journal of Comparative Criminal Jurisprudence 1, no. 4 (Winter 2022): 84-93. [In Persian]
Gorji Azandariani, Ali Akbar and Mohammad Shahab Jalilvand. “The Quality Review of the Enactments of the Islamic Consultative Assembly in the Precedent of the Guardian Council.” Quarterly Journal of Public Law knowledge 6, no. 18 (March 2018): 1-22. [In Persian]
Gorji Azandariani, Ali Akbar. Mabani Hoghooghe Omoomi. Tehran: Jungle Publications, 2015. [In Persian]
Guardian Council Research Center. Collection of theories of the Guardian Council regarding the approvals of the Islamic Council. Tehran: Guardian Council Research Center, 2005. [In Persian]
Guardian Council theory, no. 121, March 28, 1988. [In Persian]
Guardian Council theory, no. 23107/30/86, November 7, 2007. [In Persian]
Guardian Council theory, no. 517, July 26, 1990. [In Persian]
Guardian Council theory, no. 5310, September 12, 1982. [In Persian]
Guardian Council theory, no. 860, September 20, 1995. [In Persian]
H.W.R, Wade, and C.F. Forsyth. Administrative Law. Oxford: Clarendon Press, 1994.
Hadavand, Mahdi. “Judicial Oversight: Conceptual Analysis, Fundamental Developments.” Journal of Constitutional Rights 5, no. 9 (September 2017): 7-56. [In Persian]
Jalilvand, Mohammad Shahab, and Aliakbar Gorji-Azandariani. “Evaluation of the Basics of Monitoring the Quality of Legislation by the Guardian Council.” Majles & Rahbord 27, no. 103 (October 2020): 51-80. [In Persian]
Katouzian, Naser. Introduction to the science of law. Tehran: Enteshar publishing company, 2015. [In Persian]
Kommers, Donald. “An Introduction to the Federal Constitutional Court.” German Law Journal (2001): 1‑5. http://www.germanlawjournal.com/article.php.
Mader, Luzius. “Evaluating the Effects: A Contribution to the Quality of Legislation.” Translated by Hasan Vakilian, Research Report of the Islamic Council Research Center 240, no. 9528 (February 2009): 1-26. [In Persian]
Marmor, Andrei. Philosophy of law. New Jersey: Princeton University Press, 2010.
Matthew, Bertran.  The law. Translated by Majid Adib. Tehran: Mezan Publishing, 2012. [In Persian]
Mousmouti, Maria. “Operationalising Quality of Legislation Through the Effectiveness Test.” Legisprudene Journal 6, no. 2 (2012): 191‑205.
Vakilian, Hasan, and Ahmad Markazmalmiri. “legisprudence: in quest of enhancing the quality of legislation.” Public Law Research 18, no. 51 (October 2016): 54-29. [In Persian]
Vareen Vanterpool, “A Critical Look at Achieving Quality in Legislation” 9Eur. J.L. Reform, no. 167 (2007): 200-218.
Vijeh, Mohammad Reza. “he Legal security as a necessary condition for procedural security.” Strategic Quarterly 20, no. 58 (Spring 2019): 130-95. [In Persian]
Vijeh, Mohammad Reza. “The constitutional jurisdictions and property guarantee a comparative review of the function of iranian and french constitutional urisdictions.” In Iranian Yearbook of International and Comparative Law, no. 3, Guderz Iftikhar Jahormi, Alihossein Najafi-Abrandabadi and Ebrahim Begzadeh, 140-163, Tehran: Official Newspaper of the Country, 2007. [In Persian]
Villiers, Michel. Dictionnaire du droit constitutionnel, Paris/Montréal: Dictionnaire du droit constitutionnel, Dalloz 2008.
Zarei, Mohammad Hossein. Goftarhaee dar Hoghooghe Omoomi Modern: Hakemiyyate Ghanoon Va Demokrasi. Tehran: Khorsandi Publications, 2014. [In Persian]
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