A Comparative Study of the Theory of the Constitutionalization of Administrative Law in the Legal Systems of Iran and France

Abstract

Constitutionalization is one of the most important and major legal approaches through which the fundamental rights of all citizens are protected and guaranteed. Constitutionalization theory means the entry of a legal rule into a set of fundamental rules that the state, in addition to its obligation to respect, is obliged to protect and fulfill them. There is no doubt about the influence of constitutionalism in the case law in the field of administrative proceedings, because this phenomenon is a product of the court and the constitution, and in the French legal system, this institution is the main interpreter of the constitution. The new Constitutionalization in its modern content, as it guarantees the rights and freedoms, has affected the functioning of the administrative judge, transforming him from a judge who merely seeks to enforce the law to a liberal judge. Such a tendency is observed in France. This theory is of special importance in the French legal system, while in the Iranian legal system, unlike France which has a constitutional court, due to the absence of such a court, the legislator has had a special look and in Articles 170 and 173 of the Constitution, the field of judicial oversight of administrative actions is somehow realized. The roots of this theory should be sought in the text of the Constitutions of 1875 and 1947, but it seems that this theory does not have a strong theoretical support in the Iranian legal system, because the life of this theory in our country is almost a decade. Therefore, in this research, which is written in a descriptive-analytic method, we try to explain and compare the theory of the Constitutionalization of administrative law in the two legal systems of Iran and France.

Keywords

• constitutionalization theory
• legal system
• constitution
• iran
• france