درخت حوزه‌های تخصصی

Judicial system is a reference which should take an action for general public rights realization and eliminate legal abnormalities by issuing various decrees, and its judges can bring powerful rulers to justice because of having committed crimes; so if they won’t have enough autonomy, they can’t have a fair judgments. One of the conditions of judicial independence principle objectification, is independence of judicial system set from other organs of government, by means of powers separation principle. The first goal of powers separation, is assigning specialized tasks of government to separate organs and systems consists of experts. For this purpose, judicial system is responsible for resolving claims and disputes as well as criminal penalties and prosecuted. One of the intended principles is providing judicial independence and also general jurisdiction of judicial system in order to addressing disputes and committed crimes in the community level. The third principle of fundamental principles is judicial independence that has also been mentioned. But unfortunately this issue have been violated in laws of the Islamic Republic Iran and United States of America due to the existence of quasi-judicial tribunals within agencies. Moreover, existence of special court for the clergy in Iran is a clear violation of judicial independence. Principle of judicial branch separation from the other powers of government is the first step in organizational independence of the judicial system and can be found in multiple principles of the fundamental laws of both countries. However, despite the recognition of separation powers principle and respect independence for judicial system, again we see interference of powers and other institutions in functions of judicial system in both countries. In addition to that, in order to provide judicial independence in desirable and intended means of that, providing independence and impartiality of judge's also is required. This means that judges ruled out only with regard to the law, justice and equity, and do not pay any attention to the orders and wishes of others, and finally from this independently behavior, won’t fear from dismissal, downgrading the status and change the place of employment and jeopardizing their positions. This independence must be holistic, which means that judges must be independent not only within the judicial branch, and no person or authority shall not intervene in their votes and their decisions, but also outside the judicial branch and from no authority and office or other governmental entity and even public interest and thought should not be the slightest effect on his normal and impartial judgment, but rather should always consider justice, equity, law and human rights. In addition to these two concepts, magistrate also should observed impartiality within their and has the internal autonomy.

Human rights are commonly portrayed as a narrative that passes through several chapters before reaching its inevitable conclusion. This narrative begins with the horror of Nazism, moves to the centrality of human rights in the UN Charter, eulogizes the Universal Declaration, celebrates the achievements of standard setting as set out in the major covenants, offers detailed analysis of methods of monitoring and, finally, speculates on the future of compliance. This narrative is sustained, firstly, by ‘naturalist’ foundationalism and, secondly, by a widely held assumptions about the move towards ‘settled norms’ in the contemporary world order. Although some pessimism is voiced over continued reports of torture, genocide, structural economic deprivation, disappearances, ethnic cleansing, political prisoners, the suppression of trade union rights, gender inequality, religious persecution, and many other violations of internationally agreed human rights, most commentators and activists tacitly adopt an optimistic stance that envisages a future rights based international order. The still prevalent naturalist account of human rights, together with a narrative that boasts ‘settled norms’, suggests that the human rights regime represents a final ‘truth’ about the essential nature of all humankind; a common identity that describes the individual in an increasingly globalized world. <br />This paper interrogates the ‘naturalist-settled norm’ account of human rights from the perspective of power and knowledge. It begins by distinguishing between the international human rights regime and the global discourse of human rights. The former adopts a legal approach, where the neutral, value-free, unbiased and impartial nature of the law is tacitly accepted. The latter refers to human rights as social, political and economic practice, and must therefore include an account of power. From this perspective, the discourse of human rights might be said to ascribe a particular identity to human beings as agents of a particular type and kind, which serves the interests of some groups over others. While the human rights regime is presented by world leaders, commentators and the majority of academics as the legitimate articulation of norms founded upon timeless ‘truths’ about human nature, the argument presented in this paper suggests that the norms associated with the discourse of rights offer a more cogent insight into the status of human rights in the current world order. Thus, complex questions arise about power/knowledge, foundationalism, the status of international human rights law, and the politics of rights. <br />The paper begins with an account of discourse as a meeting place for power and knowledge. A second section discusses ‘discipline’ as a mode of social organization that imbues the individual’s identity with particular ways of thinking, knowing and behaving, thereby instilling a particular social consciousness. A further section looks at the global development of ‘market disciplinary’ norms (as opposed to legal norms) that act as a guide for action. The paper concludes with a discussion on issues of human rights and identity in the age of globalization.