Journal of Legal Research

Journal of Legal Research

The Application of the Principle of Proportionality in the Guardian Council’s Economic Opinions

Document Type : Original Article

Authors
1 Department of Public Law, Semnan Branch, Islamic Azad University, Semnan, Iran.
2 Assistant Professor, Department of Public Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.
3 Department of Law, Semnan Branch, Islamic Azad University, Semnan, Iran.
Abstract
A measure or decision that restricts an individual right is considered proportionate if it pursues a legitimate aim, is rationally connected to that aim, and employs the least burdensome means available. The proportionality test thus involves an assessment of costs and benefits. The principle of proportionality provides both a methodological framework and a procedural tool for evaluating the actions of public authorities. Employing a descriptive-analytical method, this article examines how the Guardian Council applies the principle of proportionality in its opinions, particularly those concerning fundamental rights and freedoms. An examination of the Council’s opinions suggests that the application of this principle can help prevent the enactment of legislation inconsistent with the Constitution and guide public authorities towards greater protection of fundamental rights. The findings indicate that, although the principle of proportionality has been reflected in the Guardian Council’s opinions, its application lacks a coherent and systematic structure. In other words, while the principle has an identifiable place in the Council’s constitutional review, the Council has yet to develop a consistent, comprehensive, and methodical approach to its application.
Keywords

Adler, John. (2002). General Principles of Constitutional and Administrative Law. Palgrave Macmillan. (In English)
Alexy, Robert. (2002). A Theory of Constitutional Rights. Oxford University Press. (In English)
Alexy, Robert. (2003). Constitutional Rights, Balancing, and Rationality. Ratio Juris (An International Journal of Jurisprudence and Philosophy of Law), 16. (In English)
Barak, Aharon. (2012). Proportionality: Constitutional Rights and Their Limitations. Cambridge University Press. (In English)
Bazmohammadi, Hossein and Akbar Cheshmi. (1385). Government Size in the Iranian Economy. Collection of Economic Research of the Central Bank of the Islamic Republic of Iran, 39. (in Persian)
ElSan, Mostafa. (1392). A Comparative Study of Sports Broadcasting Rights Assignment Contracts. Comparative Law Research, 17(3). (in Persian)
Gholizadeh, Ali-Akbar. (1383). An Approach to Determining the Optimal Size of Government. Journal of Planning and Budget, 9(2). (in Persian)
Gorji, Ali-Akbar. (1388). Foundations of Public Law. Second Edition. Tehran: Jangal Publications. (in Persian)
Gorji, Ali-Akbar. (1393). In Pursuit of Public Law. Vol. 1. Tehran: Jangal Publications. (in Persian)
Guardian Council Website. “The Guardian Council’s Reasoned Opinions in Reviewing the Fifth Development Plan Bill of the Islamic Republic of Iran.” 18/07/1390. Available at: www.shora-gc.ir/fa/news/2197 (in Persian)
Hadavand, Mehdi. (1390). Comparative Administrative Law. Vol. 1. Tehran: Samt Publications. (in Persian)
Hadavand, Mehdi. (1390). Comparative Administrative Law. Vol. 2. Tehran: Samt Publications. (in Persian)
Haghighi, Mehri. (1400). The Public Accounting Law of the Country in the Current Legal Order. Tehran: Mizan Publications. (in Persian)
Jackson, Viki C. (2015). The Constitutional in the Age of Proportionality. Yale Law Journal, (124). (In English)
Jalali, Mohammad & Sogol Soodbar. (2022). A Critical Analysis of Application of Proportionality Test and Margin of Appreciation Doctrine by European Court of Human Rights. Journal of Human Rights, 2(18). (In English)
Jalali, Mohammad and Meytha Kamyab. (1400). Administrative Police. First Edition. Tehran: Majd Publications. (in Persian)
Klatt, Mattias & Meister, Moritz. (2012). The Constitutional Structure of Proportionality. Oxford University Press. (In English)
Markaz Malimary, Ahmad and Arian Pataft. (1397). The Concept and Scope of General Principles of Administrative Law. Second Edition. Tehran: Judiciary Publications. (in Persian)
Mashhadi, Ali. (1391). Discretionary Jurisdiction. Tehran: Publications of the Legal Deputy of the Presidency. (in Persian)
Massey, I.P. (2012). Administrative Law. Eastern Book Company. (In English)
Moazzeni, Ruhollah. (1393). Public Economic Law. Tehran: Majd Publications. (in Persian)
Möller, Kai. (2012). Proportionality Challenging the Critic. International Journal of Constitutional Law, 10. (In English)
Möller, Kai. (2018). Dworkin's Theory of Rights in the Age of Proportionality. The Law & Ethics of Human Rights Journal, 12. (In English)
Moradi Barlian, Mehdi. (1392). The Principle of Proportionality in the Legal System of the European Union. First Edition. Tehran: Khorsandi Publications. (in Persian)
Mousazadeh, Ebrahim. (1402). Essentials of Administrative Law. Tehran: Dadgostar Publishing. (in Persian)
Petersen, Niels. (2017). Proportionality and Judicial Activism. Cambridge University Press. (In English)
Rasouli, Somayeh. “85 Percent of Iran’s Economy Is State-Owned / The Industrial Development Document Has Not Been Finalized.” Mehr News Agency. February 9, 2024. Available at: mehrnews.com/x345jX (in Persian)
Rezaei, Shams al-Din and Mohsen Esmaeili. (1398). Television Broadcasting Rights and the Iranian Football Industry. Development and Sport Quarterly, 8(1). (in Persian)
Rostami, Vali and Hamid Ghahvechian. (1401). Financial and Accounting Law. Second Edition. Tehran: Dadgostar Publishing. (in Persian)
Shiravi, Abdol-Hossein. (1400). Economic Law. Third Edition. Tehran: Samt Publications. (in Persian)
Stone Sweet, Alec & Jud Mathews. (2009). Proportionality, Balancing and Global Constitutionalism. Columbia Journal of Transnational Law, 47(1). (In English)
Tajerlu, Reza. (1393). Human Economic, Social, and Cultural Rights. Tehran: Dadgostar Publishing. (in Persian)