نوع مقاله : علمی - ترویجی
دانشجوی دکترای تاریخ حقوق عمومی، دانشگاه اکس مارسی 3، فرانسه
عنوان مقاله [English]
The lack of historical awareness limited our understanding of the constitutional movement to a short period. Combating tyranny started much earlier than 13th of Mordad 1285 (1906). The absence of the historical consciousness veiled this awareness. One of the consequences of this concept of history emerged in our approach to Constitutional Law. The absence of the historical consciousness detached the constitutional law from its roots, i.e. the history of the Constitutionalism in Iran. The consequence of this separation of the Constitutional law and the history of constitutionalism was that the study of the constitutional systems of "foreign countries" rather than the "esprit du peuple/volksgeist" was brought into focus in Constitutional Law. In this paper, I will argue that we were not right on recognition of the main problematic issues in Iranian Constitutional Law. The studies in the Constitutional Law were not theoretically commenced as "the conditions of introducing the idea of Constitutionalism in Iran". I will explain how the escape from the recognition of the consensual historical elements of the fundamental law delayed achieving a constitution based on the "esprit du peuple/volksgeist" and also on the consensus.
The history of Constitutionalism is the point from which the modern concepts of Public Law in Iran emerged. The search for the content of the concepts and their conceptions among the earlier and later constitutionalists is the spotlight in the history of the idea of Public Law in Iran. Nowadays, after a century and a half of the advent of these concepts in Iran, it is time to observe them from the viewpoint of the metamorphosis of the concepts. These concepts emerged with a continuous or ruptured link to the past, with the introduction of the idea of instrument of government and imposing limits on its absolute power. In this article, we will demonstrate the necessity of studying history of the Constitutionalism in Iran for true understanding and creation of Public Law. In Addition, in order to show the emphatic necessity of the constitutional history approach to the legacy of constitutionalism, I will show the capability of the concepts of the Constitutional Law in lifting the veil of obscurity surrounding the constitutionalists' efforts, which the concepts of the history of constitutionalism cannot serve to decode them.