Jurisprudential and Legal Examination of the Judge's Efforts in Issuing Criminal Sentences Based on Article 167 of the Iranian Constitution

Dehghani, Soleiman; Emam, Seyed Mohammad Reza; Pourmanuchehri, Seyed Ali

doi:10.22034/jccj.2023.414570.1364

Jurisprudential and Legal Examination of the Judge's Efforts in Issuing Criminal Sentences Based on Article 167 of the Iranian Constitution

Document Type : Original Article

Authors

Soleiman Dehghani ¹

Seyed Mohammad Reza Emam ²

Seyed Ali Pourmanuchehri ³

¹ Ph.D Student of Jurisprudence and Fundamentals of Islamic Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran.

² Associate Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Faculty of Theology, University of Tehran, Tehran, Iran. (Corresponding Author)

³ Assistant Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran.

10.22034/jccj.2023.414570.1364

Abstract

The relation between legal principles with Islamic Sharia is emphasized in the vast majority of constitutional principles, especially in Article 167. The purpose of this article is to examine the judge's effort in issuing a verdict based on Article 167 of the Constitution. This article is descriptive and analytical. The data is also qualitative and data collection has been used. The findings indicate that the legislator in this Principle intended to block the possible and legal loopholes of not issuing a sentence on various excuses, including the lack of a legal provision corresponding to the subject of the case or the non-compliance of the proposed case with the approved laws. The judge's effort in issuing a sentence by relying on Article 167 of the Constitution is in conflict with some other principles of the Constitution, juridical and legal rules such as the legality of crime and punishment as well as some legal articles of the Islamic Penal Code. It is necessary for the ordinary legislator to explain and define Fatwa and valid jurisprudential sources. It is obvious that the judges are to determine this matter. They should refer to jurisprudential consensuses and in non-consensuses cases, they can choose a strong jurisprudential opinion by considering different Fatwas.

Keywords

Article 167 of the Constitution

Judge

Judicial Sentence

Fatwa