Document Type : Original Article
Author
Department of Law. Faculty of Humanities and Social Sciences, University of Kurdistan, Sanandaj, Iran.
Abstract
This study aims to achieve two objectives. Initially, it aims to elucidate the notion of national sovereignty as outlined in the Constitution of the Islamic Republic of Iran through a historical-phenomenological approach. This analysis explores the socio-political processes of the revolutionary forces, specifically the Constitutional Assembly, which resulted in a document influenced by advocates of religious and hybrid ideological viewpoints. The analysis centers on dimensions that illustrate the preeminence of Sharia over modern law, wherein law is evaluated independently of its intrinsic substance and rationale. The legal notion of sovereignty represents a meticulously structured document that, through its brevity, effectively addresses a philosophical dilemma (the conflict between determinism and free will). Nevertheless, owing to its disparate objective, neglect of a systematic legal methodology, and absence of continuity within legal institutions, this refined formulation has not been integrated into the legal domain; rather than fostering unity, it has engendered duality (the legal form itself). This essay, as the concluding segment of a tripartite analysis on national sovereignty in Iran, aims to outline the historical development of this notion. The legal form is shaped by socio-political forces and their arrangement, and it is defined by ideas articulated in a cohesive linguistic structure. This relationship offers an inside viewpoint for comprehending the legal structure. An external perspective is essential to trace the evolution of the form across history and to comprehend its connection to its origin—specifically, the heritage that underlies the form and through which force and cognition reestablish their interplay. This foundation also elucidates the continuity or rupture of a thought. The legacy of the past holds significance within the context of the life-world (Lebenswelt) and imparts historicity to it. The life-world is a product of the ego's intentionality and the resulting intersubjectivity, which is defined within a framework of linguistic, cultural, and other traditions. This place is a sedimented reality that connects past and future generations; it is an encounter through which the formation of the new and the trajectory of communal transformations are established. The analysis of the relationship between legal forms and historical heritage involves initially evaluating each form individually and subsequently in connection to other forms (the relational legal form). In the Constitution of the Islamic Republic, referred to as The Aesthetic Sovereignty, the engagement with historical legacy is both antiquarian and selective. In the Constitutional Constitution, referred to as The Janusian Sovereignty (the second segment of the study), we see a fusion of critical and ecclesiastical (antiquarian) interaction. In the period of the legal treatises (Rasa’el) composed before and after the Constitutional Constitution—referred to as Sovereignty as Monarchy (the initial segment of the study)—a discernible thread of critical engagement with historical heritage emerges, wherein local contexts are examined through the lens of universal political theory. The historical development of national sovereignty is shaped by the interplay among these three kinds. The 1980 legislator inherited both forms; however, they continued the conflicts within Constitutional law and perpetuated them. They did not utilize the legal treatises (Rasa’el) from the Constitutional Revolution or their subsequent academic development, thus remaining disconnected from a systematic legal framework. This transpired because of the prevalence of Sharia arguments lacking a legal basis, which ultimately led to confusion. Ultimately, it may be emphasized that the legal form consistently has the capacity to extract purpose from one facet of the past to another and to facilitate renewal, thereby allowing for the revelation of something novel. This potential can consistently reveal history as a primary source and prompt the reexamination and evaluation of the legal framework. Contrary to this potential is the prioritization of a singular characteristic, reducing reality to that element, like to the bed of Procrustes, anticipating its Theseus.
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