چکیده:
There are various ways to understand law. On one hand, one can ask about the nature or essence of law: what is law? On the other hand, one can question the function of law. Answers to the first type of question are, of course, diverse and controversial. These answers deal with the concept, basis, and purpose of law. Answers to the second type of question are also varied and contentious; however, these answers address the function of law. Undoubtedly, the second group of answers does not achieve full clarity without the claimed analyses from the first group of answers. Conversely, the second group of answers serves as a criterion for testing the conceptual and analytical theories contained in the first group. In other words, discussing the function of law clarifies the concept of law. Based on this, in this writing, we address some of the characteristics of law that indicate its functions. We divide these characteristics into essential and accidental; essential characteristics are actually indicators of the minimum functions of law, without which law is fundamentally not law. Accidental characteristics refer to the maximum functions of law, which vary depending on the supporting theory and the context of legal implementation. Consequently, it can be said that the list discussed in this article is a flexible one. The goal has been to take a step toward the conceptual analysis of law. This step can itself provide minimum criteria for judging various theories regarding law.
خلاصه ماشینی:
The second type of characteristics actually refers to the majority functions of law and is entirely dependent on the supporting theories regarding the concept of law.
For this reason, depending on the type of theory proposed regarding the essence, purpose, and foundation of law, the list of legal characteristics will be short or long.
1 In comparison, John Locke, the seventeenth-century English philosopher, while believing in natural laws, explicitly declares that law has no power without punishment and penalty, and of course, he considers this punishment and penalty to be exclusively the right of the civil ruler or the same legislative body elected by the people.
4 In this way, in addition to creating order and rules in human institutions, law can also determine the limits of minimum freedoms and, to put it more precisely, guarantee freedom—especially individual and political freedom.
1 Without an imperative element, how can law become a guide for action?2 Montesquieu, in explaining this characteristic, argues that since human laws are enacted for the individuals of a people, they must contain commands and prohibitions directed at behavior and have no need for advice or counsel.
4 In the words of Haeri Yazdi, a contemporary Iranian jurist and philosopher, "the individual or the legislative authority does not personally fulfill their desire through their own will resulting in physical struggle, but rather imposes their desired outcome in the form of legal sentences, which is called performative utterance, upon the wishes and will of others and asks them to execute his desired action based on their own will and discretion.
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