نوع مقاله : مقاله پژوهشی
نویسنده
استادیار گروه حقوق دانشگاه آزاد اسلامی. واحد بندر عباس
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Introduction: Comparative law was long characterized by two features: its inclination towards private law and its Eurocentrism. In addition to the composition of attendees at the first International Congress of Comparative Law in 1900 in Paris, who were mostly representatives of the two European "legal families" (Roman law and Common law), comparative law scholars have traditionally shown an interest in comparing the two Western legal families. Until after World War II, the majority of studies and handbooks on comparative law or foreign legal systems were the work of specialists in comparative civil law or comparative commercial law, and areas of public law were not significantly subjects of comparative study. This article seeks to identify the variables that, in the author's view, are characteristics of comparative public law and explain the belated process of its development and evolution.
Method: This article, in an analytical-descriptive manner, seeks to identify the variables that, in the author's view, are characteristics of comparative public law and explain the process of its development and evolution. Accordingly, this article is divided into six sections. Each section,
separated by numbering, addresses a characteristic or variable that, in the author's opinion, more or less distinguishes comparative public law from comparative law or comparative private law
The processes of "The Emergence of Comparative Public Law," "The Methodology of Comparative Public Law" distinct from the methodology of comparative law in the general sense, "The Challenge of 'Tradition' or Legal Family," "The Fluid Boundaries of Public and Private Law," "The Greater Dependence of Public Law on History, Culture, and Politics," and finally, attention to "Linguistic Issues" and access to resources in any comparative study, are among the most important variables that, from the author's perspective, distinguish comparative public law from other branches of comparative law, and are addressed in this article.
Findings: In the author's view, this belated attention to comparative public law (constitutional law and administrative law) is due to the unique characteristics that distinguish public law, as the law governing the rulers and the ruled, from the law governing private relations between individuals. The proximity of public law and politics, and the greater dependence or sensitivity of, at least, constitutional law (the most political branch of public law) to internal political developments and dominant political currents, as well as international and so-called "meta-constitutional" developments, the fluid boundaries between public and private law, and the lexical dependence or interconnection between public law and other social sciences, endow comparative public law and its expected function with characteristics that distinguish it from other branches of comparative law, and form the main subject of the present article. Thus, despite recent developments, it seems there is still a kind of resistance to change in the realm of public law, indicating its dependence on the path of development and overall evolution of each society.
Conclusion: In the author's view, the belated attention to comparative public law (constitutional law and administrative law) is due to the unique characteristics that distinguish public law, as the law governing the rulers and the ruled, from the law governing private relations between individuals. In other words, although most issues and problems in the field of comparative public law are found in any comparative research, the proximity of public law and politics, and the greater dependence or sensitivity of, at least, constitutional law to internal political developments and dominant political currents, as well as international and so-called "meta-constitutional" developments, the fluid boundaries between public and private law, and furthermore, the lexical dependence or interconnection between public law
and other social sciences, endow comparative public law and its expected function with characteristics that distinguish it from other branches of comparative law, and form the main subject of the present article.
کلیدواژهها [English]
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