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The Legal Liability of the State and Administrative Officials for Omissions: A Comparative Analysis of Iranian Public Law and the Common Law System
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Hadi Shokri   , Mahdi FalahKhariki * , Ahmad Esfandyari |
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Abstract: (97 Views) |
Administrative omission, as one of the most significant manifestations of governmental negligence in fulfilling affirmative duties, profoundly affects the realization of citizens’ rights, public trust, and administrative efficiency. Despite its importance, the Iranian legal system lacks a general and coherent theory regarding state liability for omissions, and the existing rules are scattered across Islamic jurisprudence, the Civil Code, the Administrative Justice Court Law, and judicial precedents. This study, adopting an analytical–comparative approach and drawing upon jurisprudential sources, domestic legislation, the practice of the Administrative Justice Court, and the common law system, examines the theoretical and conceptual foundations of omission, the scope of the state’s positive duties, the standards of proof and burden of liability, as well as the social and economic implications of state inaction. The findings reveal that in Iran, the foundations of liability for omission rest on doctrines such as tafrīt (negligence), tasbīb (causation), and the lā-ḍarar (no harm) principle. However, due to the absence of a unified theoretical framework and the ambiguity surrounding the state’s affirmative obligations, establishing and enforcing liability remains limited. By contrast, the common law system, through the progressive development of the duty of care concept and the use of well-defined judicial tests, provides clearer boundaries and criteria for liability arising from omissions. From an economic perspective, the imposition of a duty to act should be based on cost–benefit assessment and the delineation of reasonable limits of responsibility to avoid imposing disproportionate financial burdens on the state. Ultimately, the study recommends formulating a general theory of state liability, clarifying statutory duties, strengthening the role of judicial precedent, and distinguishing between civil, criminal, and administrative liabilities as reformative measures.
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| Keywords: Administrative omission, State liability, Public law, Administrative Justice Court, Comparative analysis, Law and economics. |
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Type of Study: Research |
Subject:
Special
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