سرمشق گیری در نگارش قانون اساسی مشروطه؛ قوانین الگو و نقش مصنفان (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
قانون اساسی مشروطه نخستین قانون اساسی ایران است و شامل نظام نامه اساسی و متمم آن می باشد. این سند که نقطه عطفی در حقوق اساسی ایران و نوید بخش پایان سلطنت مطلقه و آغاز حکومت قانون در کشورمان بوده، به نحوی شایسته مورد توجه و تحلیل قرار نگرفته است. در این راستا، این پژوهش در پی آن است تا با روشی اسنادی، تاریخی و تطبیقی به مطالعه تخصصی تدوین و نگارش این قانون بپردازد. در ابتدا ضمن یک مطالعه تاریخی، ریشه های پیدایش ایده قانون اساسی و فرایند نگارش آن بررسی شده و سپس، قوانینی که بهره گیری از آنها در نگارش قانون اساسی مشروطه محتمل است، جمع آوری می گردند. در انتها نیز ضمن مطالعه ای تطبیقی، میزان و نحوه الگوگیری از این قوانین مشخص می شود. نتایج حاصله روشن می سازند که دو سند تشکیل دهنده قانون اساسی مشروطه، مسیر مشابهی را در الگوگیری از قوانین سرمشق طی نکرده اند. در نظامنامه اساسی، قانون خاصی به عنوان الگوی اصلی قرار نگرفته و سرمشق گیریِ کم وبیش متوازنی از کشورهایی چون بلغارستان، بلژیک، آلمان، فرانسه و سپس، روسیه و عثمانی همراه با خلاقیت مصنفان به چشم می خورد. در مقابل، متمم، قانون اساسی بلژیک را پایه قرار داده و تعداد بسیار کمی از اصول از کشورهایی چون بلغارستان، فرانسه و عثمانی الگوبرداری شده اند.Emulation in Drafting the Mashruteh Constitution; Model Laws and the Role of Authors
Introduction The experience of drafting a constitution in Iran has a long and complex history. Awareness of the need for a constitution dates back to the Qajar era, when a number of intellectuals and prime ministers began to recognize its importance. Figures such as Mirza Hussein Khan Sepahsalar even went so far as to draft constitutional proposals, though none of these early efforts resulted in an official constitution. Nonetheless, these initial steps laid the groundwork for the eventual success of the 1906 Constitutional Movement (known as Mashrute h) and the establishment of the National Assembly (or Majles-e Shora-ye Melli ). Iran’s first constitution (known as Qanun-e Asasi-ye Mashruteh ) was ratified by the National Assembly in 1906 and 1907. It consisted of two documents: The Fundamental Law ( Nezam-Nameh-ye Asasi ) and the Amendment ( Motammem ). The reason for having two separate charters lies in the unique circumstances surrounding the approval of the main document. The Fundamental Law was drafted hastily due to special circumstances, resulting in the omission of several essential principles. Over time, these shortcomings became evident, prompting various individuals and groups to advocate for an additional law. This led to the creation of the Amendment, which was intended to complement and complete the Fundamental Law. The Persian Constitution of 1906 was the foundational document that marked the end of absolute monarchy and the beginning of the rule of law in Iran. It also addressed the rights and freedoms of Iranians. As such a significant and valuable text, it deserves thorough research, particularly as a starting point for understanding the concept of constitution in modern Iran. However, as many scholars and historians have pointed out, it has not received the attention or analysis it truly merits. Literature Review A comprehensive, standalone investigation into the Persian Constitution of 1906 and the details of its drafting has yet to be conducted. However, certain aspects have been addressed in the literature. For instance, the entry titled “Constitutional Revolution” in Encyclopaedia Iranica explored the topic from different perspectives (Amir-Arjomand, 1992). The article “Iran’s 1907 Constitution and Its Sources: A Critical Comparison” (Massie & Afary, 2018) examined various aspects of the Persian Constitution of 1906, including its drafting. Additionally, Khobrooy-Pak (2011) discussed relevant themes in his essay “The Search for Lost Laws.” These studies highlight some of the underlying patterns and influences that shaped the Persian Constitution of 1906. Materials and Methods The present study adopted a combination of documentary, historical, and comparative approaches to offer a focused examination of the drafting and structure of the Persian Constitution of 1906. First, the study explored the emergence of constitutionalist idea in Iran, early constitutional drafts preceding the 1906 Constitutional Revolution, and the necessity of drawing inspiration from foreign models. Second, it analyzed the drafting process of the Fundamental Law ( Nezam-Nameh-ye Asasi ) and the Amendment ( Motammem ), including the selection and composition of drafters and the drafting commissions. Finally, the analysis identified the constitutions that served as references, evaluating their applicability, and gaining a clearer understanding of the motivations and methods behind adopting foreign models. Moreover, the relevant data was collected from historical documents and researches. The analysis focused on biographies of the constitution-makers, as well as the historical and geographical contexts that shaped Iran’s exposure to the countries it drew inspiration from. In this way, the study identified the statutes that served as models for the Persian Constitution of 1906. Finally, the collected data was evaluated and verified, and the model constitutions were compared to assess both the method and the extent of emulation. Results and Discussion According to the results, the majority of articles in the Amendment ( Motammem) and many in the Fundamental Law ( Nezam-Nameh-ye Asasi ) were not original ideas of the constitution-makers but were instead borrowed or, in some cases, adapted from the constitutions of other countries. Regarding the models of emulation, the Fundamental Law drew inspiration from various foreign constitutions, including those of Bulgaria (1879), Germany (1850), Belgium (1831), France (1848), the Ottoman Empire (1876), and Russia (1906). Among these, Bulgaria, Belgium, and Germany were particularly influential, with 27, 19, and 17 articles, respectively, showing similarities to certain articles in the Fundamental Law. Specifically, ten articles were closely adapted from Bulgaria, three from Germany, and one from Belgium, along with minor modifications. However, the constitution-makers demonstrated a degree of independence in their approach, adapting these foreign principles to suit Iran’s unique circumstances and making substantial changes in foreign concepts to align them with the Iranian context. In contrast, only six articles in the Amendment were unique to Iranian law. The overwhelming majority of its fundamental articles were derived from the Belgian Constitution of 1831. Specifically, 94 out of 107 articles in the Amendment were adapted from Belgium. Among the remaining articles, five articles appeared to have been influenced by the Bulgarian Constitution. Some articles adapted from Belgium may have incorporated elements or minor modifications drawn from Bulgaria. In other words, the drafters likely considered the provisions of both the Belgian and Bulgarian constitutions, selectively integrating elements from the latter that they found more effective or suitable for Iran’s context, alongside the Belgian principles. In addition to Bulgaria, the French Declaration of the Rights of Man and the Citizen had a significant influence on drafting the text, particularly in Articles 9 and 28. Article 9 addresses the inviolability of individuals’ lives and property, while Article 28 relates to the separation of powers. Finally, Article 1 of the Amendment can be seen as a model derived from the Ottoman Constitution, due to both the linguistic similarities and the shared religious beliefs prevalent in both countries. Conclusion The question of why and how nations draft and adopt their first constitution has long been a fundamental issue, particularly within legal and political studies. However, this critical line of inquiry has not been explored as thoroughly as it should in the case of The Persian Constitution of 1906, which stands as Iran’s first formal constitution. In this respect, the present study shed light on the historical development of Iran’s first constitutional elements by analyzing the drafting process, examining the role of the constitution-makers, and identifying the legal models that influenced the two foundational documents of the Persian Constitution of 1906. In addition to the method and extent of emulation, several other questions arise: Why did the drafters of the Persian Constitution of 1906 choose to omit certain articles from foreign constitutions while including others that were unique to Iran and distinct from the reference countries? Moreover, given this approach to emulation, in which category of constitutional laws does the Persian Constitution of 1906 belong, and what shortcomings or improvements can be identified when compared to other types of constitutions? These questions can be a source of inspiration for future research.
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