جستجوی مقالات مرتبط با کلیدواژه « ابزارگرایی » در نشریات گروه « فقه و حقوق »

Issues which are taken as the subjects of statements in legislating and in religious reasoning are either conventional or invented by the legislator. Conventional subjects taken from general or particular convention which have not been mentioned by the legislator are divided into ‘deduced conventional’ and ‘simple conventional’. What the present article claims is that in simple conventional issues unconditionally and in deduced conventional issues depending upon proofs, their functions in individual and social relationships are certainly or with a reasonable and notable probability, subjects for statements. Thus, if as changes occur in time or place, their primary functions vanish, the previous statements cannot be proved for them on the basis of previous reasons; for if proving argument which proves the statement is verbal, since its appearance has been disturbed, it can be no more referred to; and if it is not verbal, the statement will not fall within the circle of its certainty. Thus, to find their new statements, one has to refer to other proofs.

Based on the theory of instrumentalism، criminal law is instrument to Serve the predetermined purposes، and If can make our to achieving these ends، then it is considered correct، But if the purposes fail to be appropriate، In that case is an inefficient and inadequate instrument and should be revised in using of that. Then، The first step in the instrumental study into iranian criminal law is that to Identify in the Iranian legal system، criminal law، is to be served which purposes? The second step is to identify whether The use of criminal law is subject to restrictions? purposes and values that for achieve them in the Islamic Republic of Iran، can be used the criminal law، According to the Constitution and Islamic principles must be drawn. That can Pointed such as High and detailed purposes set out in principles 2 and 3 of the Constitution، Preserving the Personal Security (principle 22)، Preventing of harm to others and the public interest (principle 40)، And religious purposes as necessary to protect the welfare and the common good. also The use of criminal law in the Islamic Republic of Iran is not Limitless According to the principles 71 and 72 of the Constitution، But it is Subordinate The principles and limitations That Is required in Sharia and the Constitution.

Each and every epistemic system of law has its own main and fundamental rules which plays an important role in depicting the structure of legal system, providing solutions for newly-emerged problems, interpreting legal rules, and picturing new institutions suitable to fulfill needs. These rules are recognized and developed out of the legal system and through a monitoring and critical approach so that, at higher levels, they may be referred to as positive laws or statutory laws or as an origin to issue a verdict in non-formulated legal system. The relevant methodology may be studied as the methodology of fundamental rules of Law in the sense of the way that fundamental rules are understood and developed according to various theories and schools. To do this, at first, attempt is made to study the possibility of referring to fundamental rules according to various legal schools and the legal system of Islam. Then, various views to the way of delimiting legal fundamental rules, separating them from each other, providing expedient forms to understand their contents and the processes through which they are formed will be studies, and the contents of fundamental rules will be discussed. In the next step, in views such as ‘homing’, reason and revelation have been introduced as the sources of fundamental rules. Then, four theories concerning methodology of finding fundamental rules have been studied. Finally, methodology of developing fundamental rules and the way in which particular legal rules may be extracted from them will be spoken of in two approaches of horizontal and vertical development.

One of the significant matters in realm of relationship between morality and criminal policy is the discussion which revolves around the morality of punishment application. In criminal policy as well as the public policy, we observe the practices and approaches in which any purposes justify the resorting to penal instruments; we can call them penal instrumentalism. In this essay we are seeking for conceptualization and representation some indicators for recognizing it between a set of measures of criminal policy. For this purpose, after making a clear boundary between this concept with other similar concepts such as populism, consequentialism, utilitarianism, and pragmatism, we have divided the indicators of an instrument-based criminal policy into objective and subjective categories. The first, is involved in resorting to criminal matters as the most accessible instruments, ignorance of the evident legal principles, and the evident moral principles. The latter, is involved in intending to achieve a goal, interests or a practical good, and finally resorting to a quick and easy resolution or relief.