Document Type : Original Article
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Legislation as one of the most important categories of public law is a process that does not only lead to the birth of a new text of the law by members of parliament; Rather, reducing the volume of laws in necessary cases should be considered as one of the functions of the legislative system. This is especially important in the field of legal law; Because for various reasons, we have witnessed an increase in the volume of laws and as a result the restriction of fundamental rights and public freedoms of individuals.
The first basis of legislation is minimal adherence to the principles and standards of liberalism. Liberalism, in a broad sense, refers to any approach to government and social policy that relies on individual rights. The ideology of liberalism, meaning the freedom of citizens in the shadow of a government limited by law, is one of the basic foundations of a democratic government whose main goal from the beginning has been to fight against the authoritarian and arbitrary power of the state. Separation of powers, civil society, people's control over the state, the priority of individual freedom over social justice, the distinction between public and private spheres, tolerance for the opinions of others, resistance to power, etc., are the main elements of this ideology.
Libertarianism is another basis of minimalist legislation. Libertarianism is a political and legal philosophy that deals exclusively with the proper use of force and advocates the use of violence against persons or their legal rights and property. This theory discusses what should be considered illegal. Although libertarians are opposed to their rival economic and political systems in society, they often display authority with skepticism. The various schools of thought of libertarians offer a wide range of views that seek to limit or even completely destroy the pervasive social institutions, taking into account the legitimate functioning of the state and private powers. Inevitably, libertarians sometimes use a rigid and unique systematic theory or ideology as a term in defense of a wide range of political ideas of modern history.
The rule of law is one of the inherently ambiguous concepts that is used in different ways in different areas of law. The rule of law is the gateway to public law. From this perspective, in the sources dealing with modern public law and the foundations of governance, a central element of the concept of the rule of law is that government officials in the political community are not free to do anything in any way; Because they are bound to observe the limits of their power. In general, the existence of the rule of law requires the presentation of a comprehensive model of this concept in which both the formal rules and the material and substantive elements of the adoption of the law are observed. Thus, as Stahl emphasizes, law and the rule of law must be used as techniques for the rational organization of power and the regulation of its relations with its citizens. The full-fledged model is human-centered; In other words, the protection of human dignity and individual and group rights and freedoms is its strategic goal.
The ultimate goal and value of the first and regulator of law, according to many thinkers, is "justice", a value that has long been the greatest attraction for humanity, especially jurists. The purpose of rights is to be just and to remain just; Otherwise, it practically loses its validity and value and is lost.
Modern government must base concepts such as compliance with the law, rationality, fairness, proportionality, etc. on a system compatible with public law; But this system is based on shaky foundations and usually resorts to solutions instead of law, and therefore, law is considered as a tactic or as a tool for managing social affairs; Because of this, part of the administrative structure faces the problem of interpreting the law. The problem goes even further; Because from the point of view of the existing laws, no decision is correct and the judge has to use his legal authority. In such a situation, he must have general reasons to justify his decision and act like a conscientious legislator by making decisions based on his beliefs and values.
The legal response is a kind of guarantee of law enforcement that is determined by the legislature in systems based on the rule of law and the separation of powers. The reason for determining the answer to the laws is the violation of social norms and the performance of behaviors that violate public order, which hurt the public conscience of society. The humanization of the legal answer is an issue that Western reformers, such as Montesquieu, have addressed. In addition to ruthlessly describing the response of bodily laws, he wants to equate the legal response with violations; Because it destroys arbitrary power.
Today, human rights thinkers, who have made the guarantee of individual and social human freedoms one of the obligations of governance, emphasize the need for a small and minimal government in the field of law. With the pervasiveness of liberal and human rights views in criminal policy that seeks to minimize, the unfinished challenge of expanding public rights continues; Because the protection of positive freedoms requires government intervention, part of which will inevitably fall within the jurisdiction of the criminal legislature.
Ignoring the idea of separation of powers puts public rights on a downward spiral; Thus, it is stated: "Irrespective of methodological and methodological values, without separation of powers and other controlling institutions, the government can show violent, extremist and intrusive faces when it comes to regulating the rule of law." In an inappropriate political structure devoid of an independent judiciary and the principle of separation of powers, public rights can be abused to limit the rights and freedoms associated with the public and private spheres of the people. Also
