The possibility of electing civil court judges through public votes

Document Type : Original Article

Authors

1 PhD student, Department of Fiqh and Fundamentals of Islamic Law, Islamic Azad University, Imam Khomeini (RA) Shahrari Memorial Unit, Tehran, Iran.

2 Associate Professor, Department of Fiqh and Fundamentals of Islamic Law, Islamic Azad University, Yadgar Imam Shahrari Branch, Shahrari, Iran.

3 Assistant Professor, Fiqh and Fundamentals of Islamic Law Department, Islamic Azad University, Yadgar Imam Shahrari Branch, Shahrari, Iran.

10.22075/feqh.2023.31878.3710

Abstract

One of the important topics of jurisprudence and law is the issue of judiciary, which has a special place in the application of legislation and proceedings in judicial courts and has had a significant impact on the development of legal affairs.
The role of the people in the selection of the three powers, especially in the legislative and executive powers in the countries of the world has been defined as democracy, but in the case of the judiciary among Islamic countries and jurists, it has been either ignored or paid less attention. Today, this issue can be an important and practical discussion in the field of real and legal arbitration and emphasized in many judicial proceedings. Is it possible to create judicial formations with people's votes and accept the selection of judges and/or chief members of the judiciary considering the title of "Consolidation Judge" and "People's Role in Government"?
According to Imamiyyah jurists, the permissibility of judges on the one hand, and the role of the people in the Islamic government, and the emphasis of constitutional scholars on the place of the people in the selection of the legislative and executive powers, on the other hand, we come to the point that in the case of choosing judges, the people have the right to choose their judges through public votes. They have, but in the case of choosing the head of the judiciary, according to the agreement of the jurists, the permission of the Imam (a.s.) or Naib Imam (a.s.) is required.

Keywords

References

 - Amin, S. H. (1987). History of Iranian Law, Vol. 1, Tehran: Encyclopedia of Iranology.
- Amandad, M. (1995). "The Jurisprudential Status of the Private Judicial System Based on the Institution of Arbitration from the Perspective of Imamiyyah," Journal of Research in Islamic Jurisprudence and Law, 16, 9-33.
- Behbani, M. (1996). "The Position of the Arbitration Institution in Iranian Law with a Jurisprudential Approach," Journal of Islamic Jurisprudence and Law, 18, 9-28.
- Bahramian, S. (2018). "Difference in the Views of Sheikh Fazlullah Nuri and Akhund Khorasani regarding the Constitutional Revolution," Khwarazmian History Journal, 23, 1-20.
- Farahidi, K. B. A. (1989). Kitab al-Ayn, Qom: Hejrat.- Fazel Hindi, M. B. H. (1995). Kashf al-Litham wa al-Ibham an Qawa'id al-Ahkam, Vol. 10, Qom: Islamic Publication Institute.
- Fallahi Fard, M., & Bahramian, M. (2014). "Investigating the Evolution of the Position of Judge from the Pre-Islamic Era to the 40th Year," Kheradnameh Journal, 13, 45-64.
- Ghayathi, M. (2003). Public Opinions from the Perspective of Imam Khomeini, Master's Thesis, University of Tehran.
- Hafez Nia, M. R., Parsaei, I., & Hosseinpour Pouyan, R. (2011). "A Comparative Study of the Impact of Local Institutions Before and After the Islamic Revolution on Citizen Participation (Case Study: Khaneh Ensaf and Dispute Resolution Councils)," Journal of Human Geography Research, 77, 145-164.
- Hosseini, S. H., & Jangi, K. (2012). "The Status of Decarceration/Dejudicialization in Islamic Jurisprudence," Journal of Theology and Islamic Studies, 4.- Ibn al
-Manzur, A. F. J. D. M. (1984). Lisan al-Arab, Qom: Adab al-Hawzah.- Ibn Faris, A. B. F. Z. (1983). Mu'jam Maqayis al-Lughah, Qom: Qom School of Islamic Propagation Office.
- Jaba'i Amili (Al-Shahid al-Thani), Z. B. A. (1992). Masalik al-Afham ila Tanqih Shara'i al-Islam, Vol. 13, Qom: Institute of Islamic Sciences.- Jafari Harandi, M. (2019). "Islamic Judicial Organization and the Proposal for Court Diversity," Journal of Jurisprudence and Private Law, 2, 75-105.
- Javadzadeh, A. (2011). "What Akhund Khorasani Had in Mind Regarding Islamic Constitutionalism," Zamaneh Journal, 21 & 22, 140-145.
- Karami Ardakani, A. A. (2004). The Islamic Elective State and Democracy, Kavir.
- Kadyur, M. (1997). Theories of the State in Shia Jurisprudence, Tehran: Ney.
- Kamali Ardakani, A. A. (2004). The Islamic Elective State and Democracy, Kavir.- Kian, B. (2014). Investigating the Foundations and Scope of the Principle of Relying on Public Opinion in the Islamic Republic of Iran, Master's Thesis, University of Tabriz.
- Qamashi, M. S. (1997). "The Arbitrator Judge or the Policy of Privatizing Judgment," Specialized Journal of Ahl al-Bayt Jurisprudence, 10, 203-239.
- Qoraishi, S. A. (1991). Qamus al-Qur'an, Vol. 2, Tehran: Dar al-Kutub al-Islamiyyah.
- Qawami, S. A. (2000). "The Judicial System of the Commander of the Faithful (AS)," Islamic Government Journal, 18, 157-185.
- Raste, A. (n.d.). "Dispute Resolution Councils and the Arbitrator Judge: A Shaky Step Toward Participatory Criminal Policy," Legal Research Journal, 1, 257-286.
- Shahed, M. (2001). "Khaneh Ensaf," Lawyers' Association Journal, 175, 67-76.
- Shaidan Shid, H. A. (1992). "Democracy in the Political Thought of Mirza Na'ini and Imam Khomeini, Part Two," Ma'refat Journal, Special Issue, 33-38.
- Shokouri, A. F. (2001). "The Role of Ayatollah Akhund Khorasani in Leading the Constitutional Movement," Contemporary History of Iran, 18, 43-148.
- Shobkolaei, M. (2010). "The Position of the People in the Islamic System from the Perspective of Imam Khomeini (RA)," Husun Quarterly, 24, 99-113.
- Shahrabi, M. (2012). Law and Politics in the Quran (Lectures of Professor Mohammad Taghi Mesbah Yazdi), Qom: Imam Khomeini Institute of Learning and Research.
- Sayouri Hilli, M. B. A. (1983). Al-Tanqih al-Ra'i' li Mukhtasar al-Shara'i', Vol. 4, Qom: Ayatollah Mar'ashi Najafi Library.
- Sadeqi, M. H. (2005). "Decarceration/Dejudicialization in Islamic Criminal Law," Specialized Journal of Theology and Law, 15 & 16, 147-168.
- Soltani Ranani, S. M. (2009). "Consultation in the Prophetic Biography," Farhang-e Kowsar Journal, 79, 43-51.
- Soltani, S. N. (2019). "Akhund Khorasani and the Discovery of Commonality Among the General Public in Constitutionalism," Legal Research Journal, 87, 225-250.
- Tayyebi Fard, K. (2016). "Constitutionalism is Anti-Despotism, Religious Modernism; A Journey through the Book Tanbih al-Ummah wa Tanzih al-Milla and a Look at the Political Thought of Allameh Na'ini," Journal of Information, Wisdom, and Knowledge, 6, 62-63.
- Taban, J. (2006). "Managerial Characteristics of the Great Prophet (PBUH)," Journal of Religious Human Studies, 9, 117-130.
- Tarabpour, M. (2012). "Ayatollah Na'ini and Parliament," Ma'refat Journal, 172, 89-100.
- Hilli (Allameh), H. B. Y. (1989). Irshad al-Adhhan ila Ahkam al-Iman, Vol. 2, Qom: Islamic Publication Institute.
- Izadi Far, A. A., Fallah, A., & Khazaei Pool, S. (2009). "The Legitimacy of Private Judgment Based on the Institution of Arbitration," Quarterly Journal of Islamic Jurisprudence and Law Research, 18, 69-96.
Journal of Studies in Islamic Law & Jurisprudence
Volume 17, Issue 41
In Progress
December 2025
Pages 321-352

Files

Share

How to cite

Statistics