نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دکتری حقوق عمومی، دانکشده معارف اسلامی و حقوق دانشگاه امام صادق (ع)، تهران، ایران
2 استادیار، گروه حقوق عمومی و حقوق اقتصادی، دانشکده حقوق، دانشگاه شهید بهشتی، تهران، ایران
3 دانشجوی دکتری حقوق عمومی، دانشکده معارف اسلامی و حقوق دانشگاه امام صادق (ع)، تهران، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Introduction
As the guardian of the legal framework of the Islamic Republic of Iran, the Guardian Council plays a crucial role in the normative legal process through core functions such as the interpretation of the Constitution, supervision of the conformity or inconsistency of legislation with the Constitution and Islamic law (Shari‘a), and review of the compatibility of executive regulations with Shari‘a. In fulfilling these responsibilities, the Council has, in some instances, considered itself bound by its previous opinions or jurisprudential precedents when reviewing referred legislation (bills and proposals approved by the Islamic Consultative Assembly) or religious inquiries from the Administrative Court of Justice. However, there are also cases where, despite the similarity between the legislation under review and prior cases, the Council has issued opinions contradicting its earlier positions. The intersection of cases in which the Guardian Council adhered
Feasibility of Obligating the Guardian Council to Adhere …
to its previous rulings and those in which it departed from its precedent—despite substantive similarities—has prompted inquiry into the underlying logic governing the Council’s decision-making. This raises the central research question: “To what extent can the Guardian Council be legally compelled to follow its previous precedents in similar cases?” Examining the Council’s jurisprudence over more than four decades offers valuable insights into the performance and internal logic of this institution.
Methods
This study adopts a jurisprudential-analytical method, with data collected through documentary and library-based research. The Council's decisions are analyzed with the aim of extracting a precedent-oriented rationale. The presentation of various interpretive approaches in this study is based on this analytical framework. The proposed solution—formulating a general principle of adherence with narrowly defined exceptions—is also derived from the precedent-based analysis conducted.
Results and discussion
Three primary approaches emerge regarding the feasibility of compelling the Guardian Council to follow its prior precedents:
The adherence approach, which advocates that the Council should follow its previous rulings in similar cases, based on the necessity of maintaining legal certainty and stability, and ensuring the predictability of legal norms.
2. The dynamic interpretation approach, which emphasizes the evolving nature of the Council’s legal reasoning. This view highlights the institutional structure and the rotating composition of the Council’s members and argues that binding the Council to its past positions would hinder the necessary dynamism of the legal system.
The qualified adherence approach, which presumes adherence to previous precedent as the default rule, but allows for deviation only when justified by clear and objective grounds—such as constitutional amendments, the issuance of general state policies, governmentally mandated rulings (ḥukm ḥukūmatī), or when the Council provides well-documented and substantiated reasoning for departing from precedent.
Conclusions
Institutionalizing the principle of precedent adherence—subject to exceptional and justified deviation—would enable the legislature to more effectively anticipate and respond to potential objections from the Guardian Council. This would improve the efficiency of the legislative process and reduce the likelihood of prolonged lawmaking cycles or the passage of ineffective or unconstitutional laws. If legislators are able to predict likely objections in advance, they can draft laws in a way that preempts foreseeable challenges by the Council. In regulatory contexts, two key outcomes would follow: (1) decisions of the Guardian Council could serve as persuasive precedent in proceedings before the Administrative Court of Justice, and (2) the court would be able to adjudicate such cases more efficiently, with reduced procedural delays. Regulators could avoid enacting provisions previously deemed incompatible with Shari‘a, and citizens would be less likely to file complaints that are predictably doomed to failure based on existing precedent. Moreover, the application of the Guardian Council's precedent would not be limited solely to the review of legislation in light of Islamic principles and constitutional norms; it could also be extended to electoral supervision. Future research should explore key follow-up questions such as: What would be the implications of binding the Guardian Council to its precedents for the legislative system? To what extent does adherence to precedent shape the structure of lawmaking in Iran? Additionally, could the Council be held legally accountable—whether civilly or politically—for unjustified departures from its core precedents?
کلیدواژهها [English]
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