The silence of the law and the method of its defeat

In the legal systems of the world, interpretation of law is one of the accepted methods. Thus, in the proceedings and the exercise of the right, the judge needs to interpret the provisions to which she/he intends to refer and in this regard, different schools of interpretation have emerged which jurists and judges provide specific interpretations of statute by referring to its principles; But sometimes the judge is confronted, not with the ambiguity of the law but with its silence; Because the legislature does not have the power to predict all events ahead, due to its inherently human nature, Therefore, it cannot include all things in the law. Thus, sometimes the new claim is asserted which a verdict has not been determined by a judge in legal texts, On the other hand, the judge is required to issue an appropriate verdict and cannot refuse the proceedings under the pretext of the absence of law rule; This is where we come across a phenomenon called the silence of the law. It is provided different ways to solve this problem in different legal systems. In the Code of Civil Procedure 3919 which was inspired by French law, in imitation of French law, the legislature required the judge to refer to the spirit of the law and the inalienable customs; Of course, this text itself had created several ambiguities. That practice changed after the establishment of the Islamic Republic of Iran and the passing of the constitution and a new method was established to analyze the legal silence, the most important of which was manifested in Article 322 of the Constitution And the judge was required to refer to jurisprudence and valid juristic opinions instead of referring to the spirit of the law and Subsequently, in the Code of Civil Procedure 6000 article 1, in addition to jurisprudence and valid juristic opinions, a category called "legal principles" was also specified and Thus, based on this basis established in the Islamic Republic of Iran, the judge is required to search the judgment in jurisprudence, valid juristic opinions and legal principles that are not contrary to jurisprudence, when faced with a case whose verdict is not in the law and it can't solve the problem through legal interpretation, Here, the role of the rules of jurisprudence, which has an important place in Islamic law, is revealed because it can be considered as one of the legal principles that are not also contrary to with Islamic jurisprudence; Thus, the importance of defining and interpreting of this legal principle becomes more and more clear.