Feasibility Study on Constitutionalization via Court of Administrative Justice (By Comparing Judgments of Court of Administrative Justice with Decisions of Constitutional Council of France)
Author
Assistant Professor of Public Law, Islamic Azad University, Hamadan Branch
Abstract
In France legal system and some other systems , constitutional rights are not limited to the ethics and the philosophy of law level . In such countries rights are injected to the legal positivism by a process which is known as constitutionalization of law . Although constitutionalization and guardianship of constitution are aligned , all the fundamental rights are not clarified in the constitution . Institution of protection of constitution in Iran is Guardian Council . Therefore based on the legal logic, constitutionalization must be implemented by a court . It means although Guardian Council has theoretical reasons and practical tools to coctitutionalization , there is a legal gap : guardian Council is a political institution not a judicial one . No court has such a competence in Constitutional Act of Iran explicitly . There is a question : is constitutionalization arguable in Iran legal system ? If Guardian Council has no interest to constitutionalization , will Court of Administrative Justice its alternative to constitutionalization of law ?
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