The Journal of Modern Research on Administrative Law

The Journal of Modern Research on Administrative Law

Study of the concept of interpretive competence of a judge in the public law system as the competence of a public official

Document Type : Original Article

Authors
mohammad hasanvand 1
marzieh salmani 2
Mahdi Hasanvand 3
1 PhD in Public Law, Lecturer of Shahed University, Judge of Administrative Justice Court, Tehran, Iran
2 PhD in Public Law & Lecturer of University of Science and Culture, Tehran, Iran.
3 M.A Student in Public Law at Allameh Tabatabaee uiniversity, Tehran, Iran
10.22034/mral.2020.127814.1022
Abstract
The interpretive competence of judges has always been a point of conflict. Its advocates regard it as an essential and efficient institution contributing to dynamism of laws, which can bring the laws closer to political and legal requirements in keeping with social change. Its critics, however, reject it claiming it can undermine the rule of law, increase the danger of abuse and corruption, and infringe upon basic rights. Regardless of these criticisms, interpretation of law is an inseparable part of legal resources, procedure, and adaption of laws to actual claims. Therefore, the concern and focus of legal discussions must be on how to supervise and control this legal institution, rather than reject it. In the first step, it must be ensured that principles of accountability and rule of law are observed, and then a balance must be struck between the interpretation made by judges and the spirit of law, legal principles, and human and citizenship rights. The realization of this aspiration is subject to a two-stage solution. Stage one: familiarity with the special, fluid nature of judicial affairs, and admission of its fundamental difference from execution of laws by law enforcement institutions. Stage two: recognition of interpretive competence as a special legal institution, and envision of control, priori, and posteriori mechanisms based on recently developed methods of supervision in administrative law, such as soft law and network supervision. In and of itself,
Keywords
Interpretive competence
judge
legislative competence
executive competence
discretionary competence
Subjects
1. Emami, Mohammad and Kourosh Ostvar Sangari, Administrative Law, Mizan Publishing, 2012.

2. Babaei, Mehr Ali, Interpretation, Principles and Foundations in Public Law, Private Law, 2009.

3. Jafari Tabar, Hassan, Philosophical Foundations of Legal Interpretation, Tehran: Anteshar Co., 2004.

4. Jafari Tabar, Hassan, The Demon in the Glass, Ch 1, Haghazaran Publishing, 2016.

5. Rene David, The Great Contemporary Legal Systems, translated by Hossein Safaei, Mohammad Ashouri and Ezatullah
Iraqi, University Publishing Center, Tehran, 2010.

6. Katozian, Nasser, The Empirical Method of Legal Research, Tehran, Anteshar Co., 2006

7. Kelly, John, A Brief History of Legal Theory in the West, translated by Mohammad Rasekh, Tehran: Tarh Publications
نو. 1388

8. Gorji Azandariani, Ali Yakbar, Principles of Public Law, Jangal Publishing, 2012.

9. Montesquieu, The Spirit of Laws, translated by Mohtadi, published by Amirkabir, 1991.
10. Hart, Herbert Lionel Adolfones, The Concept of Law, translated by Mohammad Rasekh, Tehran, Ney Publishing, First Edition, 2011.

11. Yavari, Assadollah and Mehdi Moradi Berlian and Parham Mehraram, Principles and Criteria of Judicial Interpretation in Public Law, Tehran: Judiciary Research Institute. 1396.
 
1. Babazadeh Vahid and Assadollah Yavari, The concept of selective jurisdiction in the rulings of the Court of Administrative Justice, Iranian Journal of Comparative Law Research, No. 25, Winter 2014

2. Khalili, Mohsen, Comparing the issue of interpretation in the two constitutions of the constitution and the constitution of the republic
Names, Matin Research Journal, Fall and Winter 2008.

3. Vakilian, Hassan, The Position of Judicial Procedure and Law as Sources of Law in Legal Doctrine, Volume 19, Number 58, Spring 1397.
 
1. Amiraghdam, Rima, The position of judicial procedure in Iranian law with a comparative study of the French and Egyptian legal systems, thesis for obtaining a master's degree, Asami Azad University, 2016.
1. Barak, Aharon, (2008), The Judge in a Democracy, Princeton, Princeton University, 2008

2. Perelman, Chaim, Legal Logic, Nouvelle Rhethorique, Dalloz, 2nd .; Paris, 1978

3. Hart, H.L.A., The Concept of law, Oxford, First Published, 1961

4. Fix-Fierroo, Hector ,, Courts, Justice and Efficiency, Oxford, Hart Publishing, 2003

5. Siltala, Raimo,, A Theory of Precedent, Oxford, Hart Publishing, 2000
The Journal of Modern Research on Administrative Law
Volume 2, Issue 2
Second year, second issue, spring 2020
Spring 2020
Pages 117-134

  • Receive Date 17 May 2020
  • Revise Date 20 June 2020
  • Accept Date 29 June 2020