Document Type : Original Article
Highlights
Expediency has been introduced as a jurisprudential principle in law, and in administrative law, the principle of expediency has sometimes been interpreted as "public benefit". Public interest or public good is one of the fundamental principles and concepts of public law, and at the same time, it is a controversial concept and it is difficult to provide a comprehensive definition of it. In some works, public interest means the benefit or good of the majority, benefit to the society, any matter, work or object for the benefit of the general public or a set of human needs.
In French law, especially in the beginning and half of the 20th century, detailed discussions about the foundation or the existence basis of administrative law were raised and different schools were formed in this field. The Toulouse school was introduced by Maurice Horio, who found the foundation of administrative law in the tools and methods of authority used in administration. On the other hand, in the Bordeaux school created by Leon Doguy, the purpose of administration, public service, was introduced as the foundation of administrative law. The other school was founded by Marcel Valin, which was the school of public interest and considered a wider range of public services and included any collective interest beyond government employment. Therefore, in each period, the function of the concept of public interest can be seen as one of the justified causes of administrative activities and the application of administrative rights. On the one hand, man alone cannot satisfy all his needs, on the other hand, community life requires needs and benefits such as national defense and needs an efficient organization.
Every legal system strives to achieve the legitimate goals stated in the constitution, and based on this, any action that is more suitable and proportionate to these goals, the public interest of the society lies in it. In other words, executive and administrative authorities and organizations are formed in order to realize the two goals of the government. First, performing public services and secondly, maintaining public order, which is based on public interest, and the legislator or the government approves laws or regulations and decides to implement them. Although public interest is freely defined or identified by the legislative or executive branch, the legitimacy of some public services originates from the principles of the constitution, which expresses the purpose of public interest. For example, the 3rd, 21st, 28th to 31st, 35th and 43rd principles of the Constitution of the Islamic Republic of Iran are related to economic, social and cultural rights, the implementation of which depends on the creation of public services.
Expediency is used in Shia jurisprudence not as an independent source for deriving Shariah rulings, but only as a condition for the execution of a ruling or a criterion for submitting one ruling to another. The need to respect the interests of the waqf trustees, the need to respect the interests of the orphan by his guardians, the use of the income of the lands obtained in the war with the infidels for the benefit of the Muslims, the consideration of expediency in the treatment of prisoners of war, and the observance of expediency in taking jizya are considered as executive interests. becomes Another use of expediency in Shia jurisprudence is also brought up in the context of government rulings, which according to Mukhtar's opinion, the mere existence of expediency, even if it is not rooted in secondary titles, can be the source of changing rulings. This is to say that the obligation to preserve the Islamic system is one of the primary rules and has such a strong interest that it takes precedence over other Sharia rules. If there is a conflict between the expediency of the Islamic system and other interests (even though none of the secondary titles exist), in the conflict between these two legal rulings, the expediency of the Islamic system takes precedence and the other ruling is temporarily suspended.
In general, the rules of administrative law have a privileged position among other fields of public law. In addition to the non-codification of its laws and regulations and having the privileges of public law (such as issuing orders and receiving taxes, duties, confiscation, etc.), this privilege is based on principles that in its essence cause expediency in the rights of individuals. Part of this importance is related to the field of activity of this field of law, which consists of performing public services and maintaining public order. The obligation to provide public service in the relevant laws and regulations shows another manifestation of the legislator's attention to the idea of public interest. Of course, this statement does not mean that the ego of doing these things causes expediency in the actions of the trustees. Therefore, the rule of expediency is still applicable in the context of administrative law.
