Variation the documenting court rulings in the assumption of legal vacuum in Iranian law

Document Type : Original Article

Author

Razi University-Kermanshah

Abstract

No legislature can claim that the solution of all legal cases is provided for in the text of the law, and in no case does the judge face a legal vacuum for resolving disputes. Because various reasons, such as the novelty of the subject matter of the lawsuit, the legislator's delay in enacting the required law, the legislator's failure to enact a comprehensive law, etc., cause the legal system to face a legal vacuum at some point in time. In this case, two assumptions are conceivable. The first is that the lawsuit should be suspended until the required law is enacted, which is contrary to social order. Adopt the proposal and resolve the dispute and does not deny the realization of the right under the pretext of the vacuum of the law. Since the establishment of the judiciary in a new form in Iranian law, the legislature has always implied the legal vacuum by preferring the principle of the judge's duty in favor of social order to impose a verdict based on a source other than the law. This source, which has changed over time, includes the spirit and contents of the subject laws, certain customs and habits, legal principles, valid Islamic sources and fatwas of valid jurists. In this article, the evolution of this issue is examined.

Keywords

References

- Ahmadzadeh, Rasool; Gholam Hossein, Elham (1397), Receipt and expansion of Article 167 of the Constitution in the criminal field, Quarterly Journal of Parliament and Strategy, 95, 247-272.
- Emami, Seyed Hassan (1372), Civil Law, Vol. 6, Ch. 12, Tehran: Islamic Bookstore.
- Izadi Fard, Ali Akbar; Nematzadeh, Rajab Ali; Kaviar, Hossein (2009), Custom and its place in inferring religious rules, Studies of Islamic Jurisprudence and Law, 1, 45-73.
- Bushehri, Jafar (1997), Constitutional Law, Tehran: Ganj-e-Danesh Library.
- Jabbari, Mustafa (2008), Fatwa or Law? A Look at Article 167 of the Constitution, Law Quarterly, 3/38, 127-137.
- Jaghtai, Abbas; Nasiran Najafabadi, Davood; Abbasian, Reza (1398), The Executive Realm of Legal Principles and Their Relationship with Authentic Islamic and Fatwa Sources, Quarterly Journal of Islamic Jurisprudence and Law, 18, 279-303.
- Habibzadeh, Mohammad Jafar; Mohaghegh Damad, Seyed Mostafa (1374) The principle of legality of crime and punishment in Iranian law, Scientific Journal of Shahed University, 9 and 10,
Hayati, Ali Abbas (2014), Contractual Subordinate Obligations in Civil Law of Iran and France, Knowledge of Civil Law, 1, 27-34.
Hayati, Ali Abbas (1396), Civil Law 3 "General Rules of Contracts", Ch 2, Tehran: Volume.
Hayati, Ali Abbas (1397), The concept of legal principle and its comparison with the legal rule, Civil Law Knowledge, 2, 15-26.
Hayati, Ali Abbas (1399), Introduction to Law, Ch 14, Tehran: Mizan.
- Khaleghi, Ali (2014), Notes in the Code of Criminal Procedure, Ch 2, Tehran: Shahr-e Danesh.
- Khoeini, Ghafoor; Zolfaghari, Soheil (2011), Legislative Gaps and the Implementation of Fatwas in the Iranian Judicial System (Reflection on Article 167 of the Constitution), Journal of Islamic Law, 34, 79-100.
- Katozian, Nasser (1372), Introduction to Law, Ch 16, Tehran: Anteshar Co.
- Katozian, Nasser (2006), Philosophy of Law, Vol. 2, Ch. 3, Tehran: Anteshar Co.
- Katozian, Nasser (2008), A step towards justice, vols. 1 and 2, Tehran: Mizan.
Mohaghegh Damad, Seyed Mostafa (2007), Rules of Jurisprudence: Criminal Division, Tehran: Islamic Sciences Publishing Center.
- Mohammadi, Abolhassan (1397), Fundamentals of Inference of Islamic Law, Ch 62, Tehran: Institute of Printing and Publishing, University of Tehran.
- Mehrpour, Hossein; Safari, Sajjad (1397), The Spirit of Law in Iranian Law, Legal Journal of Justice, 103, 201-218.
Journal of Studies in Islamic Law & Jurisprudence
Volume 13, Issue 25
November 2021
Pages 213-238

Files

Share

How to cite

Statistics