پژوهشنامه حقوق اسلامی
پیاپی 61 (پاییز 1402)

The role of the judge's written decisions in Islamic jurisprudence is a complex and nuanced aspect that has found its way into legal discourse in Iran. This paper delves into the intricacies of this subject, focusing on the implications of the judge's writing concerning the delegation of judicial representation and the execution of court judgments within the framework of the Islamic legal system and the specific judicial practices in Iran. While the content of the judge's writing is rooted in legal sources, the extent to which the legislator has considered its relevance in the refinement of laws related to judicial representation and judgment execution remains a matter of debate.

Research QuestionThe central inquiry of this study revolves around the role and acceptance of the judge's writing in Islamic jurisprudence, with a particular emphasis on its application in the delegation of judicial representation and the execution of court judgments. The overarching question seeks to understand the compatibility of current legal provisions with the fundamental principles of Islamic jurisprudence regarding the judge's written decisions. Additionally, the study explores the divergent views on this matter among Sunni and Shia scholars and aims to uncover the common ground that unifies their perspectives.

Research HypothesisBuilding upon existing legal scholarship and the intersection of Islamic jurisprudence and the Iranian judicial system, this study posits that the judge's writing serves as a foundational element for the delegation of judicial representation and the execution of court judgments. The hypothesis suggests that despite the differences between Sunni and Shia perspectives, a unified understanding can be achieved through careful consideration and modification of legal provisions. It anticipates that the judge's writing, when properly contextualized within the principles of Islamic jurisprudence, can provide a robust basis for legal procedures related to judicial representation and judgment execution.

Methodology & Framework, if Applicable:

This research adopts a doctrinal and critical approach to analyze the judicial procedures in Iran, focusing on the judge writing and its implications for the delegation of judicial representation and judgment execution. Drawing from extensive legal literature, including the opinions of Sunni and Shia scholars, the study also examines the relevant laws of Iran, such as Article 290 of the Civil Procedure Code of the Islamic Republic of Iran and Articles 119 and 484 of the Criminal Procedure Code of Islamic Republic of Iran. This examination involves a comprehensive review of legal sources, library resources, and judicial practices in Iran.
     The framework of this study encompasses a thorough exploration of the doctrinal foundations of the judge's writing, considering its reception within the broader context of Islamic jurisprudence. The critical analysis extends to the current legal provisions in Iran, evaluating their alignment with the principles derived from the judge's writing. By adopting a comparative approach, the study seeks to clarify the divergences in views and propose a unified perspective that reconciles the practical aspects of the Iranian legal system with the principles of Islamic jurisprudence.
     This research aspires to contribute valuable insights into the multifaceted relationship between the judge's writing, the delegation of judicial representation, and the execution of court judgments, providing a nuanced understanding for both scholars and legislators, ultimately guiding potential legal refinements in this domain.

The findings of this study, rooted in Islamic jurisprudence, reveal that providing testimony regarding a prior testimony is permissible under certain conditions within the context of the judge writing. However, the significance lies in the consensus among Shia scholars, indicating that the testimony of two individuals on a written judgment by a judge, verbally elaborated by the judge, holds evidentiary weight. This is due to the stabilizing nature of subsequent testimony over the initial one. Contemporary practices ensure the authenticity of the judge's writing through measures such as guaranteeing the non-distortion of its content or the judge's intent in executing representation. From a legal standpoint, compliance with the judge's representation request is considered obligatory upon the receiving judge.
     As elucidated, the statements of legal scholars accept the judge's writing, whether it be an explicit declaration by the judge or his physical presence while verbally endorsing the written document, but subject to the condition of the second judges’ sufficient knowledge. The analysis of the judge's writing revealed its applicability in both scenarios, aligning with the essence of the discussed principles. In essence, the purpose behind the judge writing is the execution of the judgment and the request made by the issuing judge, exercising control and authority over the involved parties.

In conclusion, the research provides a comprehensive understanding of the judge's writing and its implications for judicial representation and the execution of court judgments in the Islamic legal context. Drawing from Islamic jurisprudence and the Iranian legal system, the study navigates through the intricacies of the judge's writing, revealing its multifaceted role in legal proceedings.
     From a legal perspective, the study suggests two primary objectives. Firstly, it advocates for the codification of regulations in conformity with the nature of the judge's writing in the existing legal frameworks, emphasizing unity of approach. Secondly, the study seeks to address the identified gaps in the current literature on this subject, enriching the scholarly discourse within this domain.
     By aligning with the two stated objectives and harmonizing them with the analyses presented in this research, the final recommendation calls for the amendment or removal of the conclusive clause in Article 290 of the Civil Procedure Code. The requirement for certainty on the part of the representative in verifying the accuracy of the report by the receiving representative contradicts the legal and Sharia purpose of the provision. Additionally, the study clarifies that the judge's writing is not applicable to the execution of Hudud punishments, and current practices fall under the realm of executing the judge's judgment in the same judicial jurisdiction.
     The study hopes that the insights provided will guide legislators and scholars in refining legal provisions related to the judge's writing, judicial representation, and judgment execution. The highlighted issues underscore the need for a nuanced and contextually aligned legal approach, ensuring the compatibility of the legal framework with the principles derived from the judge's writing within the Islamic legal tradition.

The Iranian legal landscape is deeply rooted in Islamic principles, with the Constitution of the Islamic Republic of Iran enshrining many principles that affirm the integration of the legal system with Islamic norms. This integration is explicitly emphasized in the constitutional provisions, notably article 1, clause 12 of article 2, and particularly article 4. However, the practical implementation of Islamic laws in the Islamic Republic of Iran is entrusted to various legal and executive systems, with the Guardian Council holding a significant role. This council, in accordance with articles 4 and 96 of the Constitution, assumes the responsibility of ensuring that the legal and executive systems align with Islamic principles.
In every legal system, there exists a hierarchy of norms, necessitating the alignment of domestic regulations and laws with fundamental principles at the top of the legal hierarchy. In the context of the Islamic Republic of Iran, this alignment is particularly crucial when considering the approval of international treaties. The approval of such treaties in the country sets the stage for a confrontation between domestic and international legal systems. Any discordant interpretation of the foundations of these legal systems leads to distinct legal consequences for the nation. Therefore, understanding the relationship between domestic and international law in the Iranian legal system requires an examination of the Islamic perspective on the interaction between these two legal systems.

Research Question:

This study seeks to address the following central question: How does the Iranian legal system, guided by the Islamic perspective, manage the relationship between domestic and international law in the context of the approval of international treaties?

Research Hypothesis:

The hypothesis guiding this research is that the Islamic legal principles, as interpreted by the Guardian Council, emphasize the unity of domestic and international legal systems. Unlike contemporary legal systems, where distinctions between domestic and international laws are shaped by practical considerations, Islamic jurisprudence tends towards a unified legal system. This hypothesis is rooted in the understanding that the Islamic conception of state and governance differs significantly from modern concepts, resulting in a more unified legal framework.

Methodology & Framework, if Applicable:

This research employs a descriptive-analytical approach, utilizing library-based data collection methods. The focus of the study is on examining the legal framework governing international treaties in the Islamic Republic of Iran, with specific attention to the perspectives articulated by the Guardian Council. By delving into the Council's interpretations of international treaties, this research aims to shed light on the compatibility of these treaties with Islamic legal standards. The chosen methodology allows for an in-depth exploration of the legal and religious foundations that influence Iran's approach to international agreements, emphasizing the importance of ensuring conformity with Sharia principles.
In summary, this paper aims to elucidate the Guardian Council's role in evaluating the legal implications of international treaties in Iran, offering insights into how Islamic principles shape the nation's approach to both domestic and international legal frameworks.

International treaties and agreements, while fundamentally serving international interests, require integration and coherence with domestic laws according to each nation's legal system. In the Iranian context, international agreements remain independent until approved by the competent authorities in accordance with domestic laws. However, the shadow of their obligatory effects persists due to elements of international customary law, placing the nation's international commitments under its influence.
     Aligned with the principles of the Islamic Republic of Iran, where the sacred Sharia and the Constitution occupy the top tier of the legal hierarchy, ordinary laws and other domestic regulations occupy lower levels. Given the adherence to both domestic and international legal systems in the country's laws, international agreements cannot be exempt from this hierarchical structure. According to the Guardian Council's theories and its practices in reviewing international agreements, it emphasizes the necessity for international agreements to align with Sharia principles, akin to their conformity with ordinary parliamentary resolutions.
     Understanding these principles becomes doubly crucial when the subjects of international treaties concern private individuals subject to national laws. This is prominently observed in numerous judicial cooperation agreements, often incorporating criticisms and Sharia-based regulations from the Guardian Council in the examination of international documents.

In conclusion, international treaties and agreements in the Islamic Republic of Iran are subject to a meticulous evaluation process, guided by the principles articulated by the Guardian Council. The integration of these agreements with the domestic legal hierarchy underscores the unified approach that the Iranian legal system endeavors to maintain. The Guardian Council, guided by principles such as The “Negation of Domination” Rule [Nafy-e-Sabil], prohibition of referring to unjust rulers, rejection and acceptance of non-Islamic foreign laws, prohibition of usury, and the Sharia compatibility of pre-revolution treaties, has established a consistent pattern in its decisions.
     The study highlights the enduring significance of the Guardian Council's role in shaping Iran's international engagement, emphasizing the ongoing impact of its interpretations on various facets of international relations. As the Islamic Republic of Iran continues to navigate the global stage, the non-changing methodology of the Guardian Council in the realm of international documents signifies a steadfast commitment to its established approach. The study encourages ongoing scrutiny of the Guardian Council's influence in international agreements, anticipating that its decisions will continue to shape the nation's standing in the international arena for the foreseeable future.

In the field of judicial proceedings, the pivotal role of "proof" in determining the fate of a case cannot be understated. A claim or assertion must be proven in a legal forum, otherwise its origins will remain inconsequential. Consequently, legal practitioners and judges dedicate a significant portion of their attention to the issue of proof, leading to the assertion that litigation revolves around the evidence. The process of proving a claim or defense relies on documents referred to as "evidence." While legal literature commonly distinguishes between "evidence supporting a claim" and "proving the evidence itself as admissible," this distinction is often overlooked. This paper examines the legal and jurisprudential aspects of the more familiar "evidence supporting a claim," examining how parties present and defend their cases with reference to these means. Moreover, it explores the less-explored dimension of "proving the evidence itself," where the evidence is presented as a separate entity in court.

Research Question:

The fundamental question that arises in this context is the rationale behind proving evidence and the justification for such a process. Legal claimants are obligated to present their evidence to the court to prove, raising the dichotomy of whether they possess the evidence or are hindered by its absence. In the former scenario, the claim is proven; in the latter, the claim faces the risk of dismissal for failure to provide proof. Thus, the inquiry emerges: why and on what grounds must one undertake the arduous process of proving evidence, and what prompts this multiplicity in the judicial proceedings?

Research Hypothesis:

In order to address this question, a hypothesis is put forward that it is necessary to prove the reason in a civil lawsuit, on the basis of justice, the obligation to preserve rights, and to adhere to the principle of contradiction. Each of these elements, independently or collectively, justifies the necessity of verifying the existence or realization of proof means. This hypothesis indicates that the legal and judicial system seeks to guarantee the fair and just resolution of disputes by observing the principles of proportionality in demanding proof. Furthermore, it is argued that this complex process acts as a safeguard, prevents the assertion of unfounded claims and promotes the efficient administration of justice.
     To address this question, a hypothesis is posited that the requirement to prove evidence in civil litigation is predicated on the basis of justice, the necessity to preserve rights, and to adhere to the principle of contradiction [Asl-e-Tanazor]. Each of these elements, independently or collectively, justifies the need for establishing the existence or realization of evidentiary means. The hypothesis suggests that the legal and judicial system, in demanding the proof of evidence, seeks to ensure a fair and just resolution of disputes, aligning with the principles of proportionality. Furthermore, it is asserted that this intricate process serves as a safeguard, preventing the assertion of unfounded claims and promoting the efficient administration of justice.

Methodology & Framework, if Applicable:

This research adopts a doctrinal approach, relying on an extensive review of Iranian legal scholars' works and the existing legal framework in the country. The methodology encompasses an exploration of relevant jurisprudential literature, analysis of applicable laws, and an examination of precedents to derive a comprehensive understanding of the necessity to prove evidence in civil litigation. The study aims to elucidate the impact of various factors, such as the unavailability of evidence due to justifiable reasons or the claimant's assertion that evidence once existed but is no longer accessible. By considering the specific conditions under which evidence may be challenging to present, the research seeks to provide insights into how the legal system accommodates such circumstances.
     In summary, this paper endeavors to shed light on the intricacies surrounding the requirement to prove evidence in the Iranian civil litigation system, offering a nuanced understanding for the benefit of a non-Iranian audience unfamiliar with the nuances of the country's legal landscape.

Typically, evidence supporting a legal claim is within the reach of the litigant, readily available for citation and presentation in court. However, scenarios arise where the evidence substantiating the subject matter of a claim is unavailable, making its presentation to the court unfeasible. Consequently, it becomes imperative for the evidence itself to be proven as a separate entity. In circumstances where accessing and presenting the primary evidence pose challenges, proving the evidence becomes an unavoidable precursor to substantiating the claim. The pivotal issue casting serious doubt on the path of proving evidence is that the establishment of a claim is contingent upon presenting evidence. Should the claimant prove incapable of providing evidence, the claim is perceived as groundless, hovering on the brink of nullity or dismissal. The meticulous process of proving evidence necessitates thorough foundations to justify this intricate and duplicative procedure in legal proceedings.
     One of the most significant underpinnings for this process is the concept of "Impossibility of Performance" [Ta'azzor] and [Ta'assor]. Rooted in Islamic jurisprudential principles such as the "Negation of Hardship" [Nafy-e-Osr va Haraj] and "Impossible Duty" [Taklif-e Ma'la'yotagh], it finds parallels in foreign legal doctrines like force majeure and the impossibility doctrine. Additionally, fundamental principles such as justice and upholding rights can be introduced to rationalize the proof of evidence. In certain cases, presenting the original evidence may be impractical due to potential obstacles. In such a scenario, if the evidence is abandoned, not only does justice remain unattained during the trial, but the judge encounters an impasse in establishing the truth. Recognizing the imperative nature of proving evidence for preserving the rights of litigants, accepting the burden of proof appears essential for fairness and justice to prevail. Thus, beyond merely avoiding obstruction and hindrance in proving legal claims, the concept of impossibility of performance becomes one of the compelling reasons for mandating the proof of evidence in civil procedural law. This is particularly evident when the testimony of a witness is contested, conflicts arise between primary and subsequent witness statements, or the need for local investigation arises. Moreover, instances of perjury and false testimony by a witness can significantly impact the proceedings, necessitating the judicial authority to independently seek and establish the proof of these circumstances. This proof, however, should be situated in a manner where the demonstrated evidence, though seemingly partial, significantly influences the outcome of the lawsuit.

In conclusion, the intricate process of proving evidence in civil litigation within the Iranian legal system serves as a fundamental safeguard against baseless claims, ensuring the administration of justice in a fair and equitable manner. The concept of "impossibility of performance" [Ta'azzor] and [Ta'assor] emerges as a critical factor justifying the proof of evidence, aligning with principles of justice, upholding rights, and maintaining a proportionate approach in legal proceedings. Beyond its function as a deterrent against false testimony, the necessity of proving evidence stands as a cornerstone for the effective adjudication of disputes, allowing the judicial system to navigate challenges and uphold the truth in the pursuit of justice. The acceptance of the burden of proof, even in the face of obstacles, is deemed indispensable for the preservation of justice and the rights of all parties involved.

The study delves into the fundamental aspect of legal systems—the foundation of law—and its crucial role in shaping legal norms. Grounded in the unique sociocultural context of contemporary Iran, the research embarks on a comprehensive analysis of the interplay between legal perspectives and religious knowledge. While conventional discussions on the foundation of law often revolve around legal theories, this study, informed by the prominence of religion and its influence on Iranian society, investigates the role of "religious epistemology" as the guiding force behind legal doctrines.

Research Question:

The pivotal inquiry centers on the degree of autonomy governments possess in promulgating laws and whether there exist predetermined guidelines and criteria governing the enactment of laws. In essence, the research explores the foundational basis upon which legal systems are established and the factors influencing the imposition of legal norms by the state. This prompts a critical examination of the autonomy of governments in lawmaking and the need for compliance with predetermined standards to confer credibility and legitimacy upon enacted laws.

Research Hypothesis:

Two distinct perspectives emerge in response to the aforementioned question:     On one hand, proponents of the natural law school argue that laws must align with natural, rational, and just principles, with human beings serving as discoverers or interpreters of these inherent laws. Legitimacy and obligation, according to this view, are rooted in the congruence of laws with reality and justice, regardless of governmental recognition.
     On the other hand, adherents of the positivist perspective contend that legal rules are mere products of human will and governmental imposition. In this paradigm, the legitimacy and obligation of laws are solely contingent upon governmental endorsement, rendering the alignment with reality or justice irrelevant. The hypothesis posits that the clash between these perspectives has given rise to two prominent legal schools: natural law and positivism.

Methodology & Framework, if Applicable:

The research employs a comparative analytical approach, juxtaposing the natural law and positivist viewpoints to assess their impact on the foundation of law within the Iranian legal context. Drawing on both legal philosophy and Islamic jurisprudence, the study navigates the divergent paths taken by legal scholars who either lean towards integrating Islamic principles with natural law or assert the primacy of positivism. The methodology involves a critical review of legal literature and a nuanced examination of the evolving discourse in Iranian legal philosophy. The framework of analysis encompasses an exploration of the intersections and tensions between these two schools of thought, emphasizing their implications for the Iranian legal system.
     This article endeavors to contribute to the nuanced understanding of the foundation of law in the Iranian legal landscape, shedding light on the philosophical underpinnings that shape the enactment, legitimacy, and obligation of laws. The exploration of these themes within the context of natural law and positivism offers valuable insights into the multifaceted nature of legal thought in Iran and its intersection with religious epistemology.

The culmination of this investigation into the foundation of law in the Iranian legal landscape yields three predominant perspectives that intersect and clash within the broader context of religious epistemology.
     The first perspective challenges the role of religion as the foundation of law, emphasizing the incongruence between modern societal values and legal principles derived from religion. It questions the legitimacy of a legal system rooted in religious doctrine, suggesting that legal norms should exclusively stem from human reason and societal norms. However, this perspective faces theoretical weaknesses, particularly in its reluctance to engage with the philosophical foundations of the New Western thought.
     The second perspective, while recognizing the significant role of religion in the Iranian legal system, seeks to reinterpret fundamental rights such as freedom and equality within the framework of religious doctrines. Though practically similar to the first perspective, it attempts a theoretical reconciliation by extracting modern legal principles from religious foundations. Nevertheless, it faces profound theoretical challenges, lacking a robust theoretical basis within Western philosophy.
     The third perspective, chosen by the author, confronts the foundational principles of New Western philosophy and critically examines the conditions under which modern rights, such as autonomy, can emerge. This perspective delves into the mechanism through which religion acts as the source of legal principles and analyzes its relationship with modern rights. In this approach, the coexistence of reason and religion is emphasized, with human access to universal truths facilitated by both intellect and faith. This perspective places a renewed emphasis on the intrinsic role of Sharia as the foundation of law, tackling practical challenges and reconciling the clash between reason, societal norms, and religion in the realm of law.

In conclusion, the inquiry into the foundation of law in Iran, with a focus on religious epistemology, brings to light the complexity of perspectives within the Iranian legal discourse.
     The examination of three distinct approaches highlights the ongoing struggle to reconcile the relationship between law and religion. While the first two perspectives grapple with theoretical and practical challenges in aligning religious doctrines with modern legal principles, the third perspective seeks a harmonious coexistence of reason and faith. Emphasizing the intrinsic role of Sharia as the bedrock of legal principles, this perspective proposes nuanced solutions to the practical challenges posed by the evolving dynamics of society, demonstrating a dynamic synthesis of religious and modern legal thought. This study contributes to the broader understanding of the intricate interplay between law, religion, and philosophy in shaping legal frameworks, specifically within the unique context of the Iranian legal system.

The Iranian legal landscape is intricately interwined with Islamic principles, notably enshrined in article 4 of the Iranian Constitution, which requires all laws and regulations to conform to Islamic standards. The core of this constitutional framework is the concept of Sharia supervision [Nezarat-e-Sharei] exercised by the jurists of the Guardian Council. This paper tries to focus on the crucial issue of the procedural mechanisms and protocols guiding the Sharia supervision of legal norms, including the constitution, ordinary laws, and regulations.

Research Question:

Considering the emphasis of the constitutionon Sharia-based legal norms, this study addresses this basic question: "What procedural arrangements define and illustrate the Sharia supervisory process undertaken by the jurists of the Guardian Council, as mandated by article 4 of the Iranian Constitution?"

Research Hypothesis:

The lack of explicit procedural details in article 4 prompts the hypothesis that there is a need for a more comprehensive framework and protocols for the implementation of Sharia supervision. The evolving legal landscape in Iran, along with the endorsement of overarching legislative policies by the leadership, underscores the importance of formalizing procedural aspects to ensure compliance with Islamic principles.

Methodology & Framework, if Applicable:

This research employs a meticulous approach, using extensive library sources and analyzing the ongoing procedures of the Guardian Council's jurists. In response to the primary question of the research, this paper examines the Sharia supervision mechanisms applied by these jurists regarding various legal norms, spanning the Constitution, pre-revolutionary laws, and post-revolutionary enactments.
     In order to evaluate the Sharia legality of enactments, this research examines the criteria for judicial proceedings and the timeframe within which Sharia opinions are issued. The focal point is the identification of the authority responsible for declaring non-compliance with Sharia standards and elucidating the primary audience for these opinions, particularly with regard to regulations.
     Due to lack of comprehensive studies on the procedural aspects of Sharia supervision, this research tries to contribute a nuanced understanding of the jurists' approach to monitoring legal norms. The innovative aspect lies in the analytical critique and positive suggestions offered for the procedural aspects of Sharia supervision under article 4.
     The article concludes by examining how Sharia’s opinions have been historically applied to diverse legal norms and provides a detailed review of the procedures and practices of Sharia supervision on laws and regulations. This comprehensive analysis aims to fill the gap in the existing literature, offering valuable insights into the evolving dynamics of Sharia supervision within the Iranian legal system. The findings hold significance not only for scholars and legal practitioners interested in Iranian law but also for a broader international audience seeking to comprehend the intricate relationship between Islamic principles and legal governance in Iran.

The findings of the research shed light on the multifaceted procedures employed by the jurists of the Guardian Council in Sharia supervision. Sharia supervision primarily targets legal norms that are perceived as conflicting with Islamic principles, with mechanisms triggered either through self-initiated reviews or in response to specific petitions. Notably, the authority of the jurists is contingent on the submission of a formal request indicating the violation of Sharia principles.
     To increase legal security, this study proposes the establishment of specific time frames for Sharia supervision. Depending on the type of legal norm under review, this timeframe initiates either from the issuance of an inspection request or the approval of the norm, with permissible extensions, up to a maximum of five months. This nuanced approach aims to bring clarity and efficiency to the Sharia supervision process, ensuring a structured and accountable application.
     This research also unveils the dichotomy between self-initiated reviews and reviews prompted by specific petitions. Self-initiated reviews, while contributing to proactive Sharia supervision, demand a strategic balance to prevent an overwhelming caseload for the jurists. Meanwhile, reviews prompted by petitions introduce an element of public engagement, allowing citizens to actively participate in upholding Islamic principles within the legal framework.
     An integral aspect of the discussion revolves around the capacity of the jurists to address diverse legal norms. This study discerns that Sharia supervision is not limited quantitatively; however, it is subject to certain constraints. The possibility of review and the potential for reconsideration and modification are inherent in the Sharia supervision process. This adaptability ensures the ongoing relevance of Sharia supervision in the face of evolving legal dynamics.

In conclusion, this research unravels the complexities of Sharia supervision within the Iranian legal system, offering insights into the procedural arrangements necessary for the effective implementation of article 4 of the Iranian Constitution. By examining the ongoing practices of the Guardian Council's jurists, the study not only contributes to a deeper understanding of the Iranian legal landscape but also proposes enhancements aligning Sharia supervision practices with broader legislative policies.
     The proposed refinements aim to foster transparency and reinforce the principles of Islamic governance within the Iranian legal system. The establishment of specific time frames for Sharia supervision represents a significant stride towards a more structured and accountable approach.

This article delves into the intricate relationship between law and ethics within the Iranian legal system, exploring the foundations, functions, and significance of ethical principles in the judicial interpretation process. The interdependence of law and ethics is a central theme, emphasizing that a proper understanding of the law often requires consideration of ethical norms. The article navigates through various legal theories, highlighting the debates surrounding the use of ethical arguments in judicial interpretation.

Research Question:

The primary inquiry guiding this research is: what is the extent of the influence of ethical principles on judicial interpretation within the Iranian legal context?

Research Hypothesis:

We hypothesize that ethical considerations play a crucial role in shaping judicial interpretation, acting as a guiding force for legal practitioners in aligning legal outcomes with moral values. The hypothesis posits that the integration of ethical reasoning in the interpretation process contributes to a more just and equitable legal system.

Methodology & Framework, if Applicable:

This research adopts a multidisciplinary approach, drawing from legal philosophy, psychology, and historical analysis. The methodology involves a comprehensive review of legal texts, scholarly writings, and jurisprudential sources, coupled with an exploration of the perspectives of prominent legal philosophers such as Georges Ripert and Ronald Dworkin. The framework for analysis includes an examination of historical legal practices, linguistic considerations, and the psychological impact of ethical reasoning on judicial decision-making.

The study unfolds with an exploration of the historical and linguistic ties between law and ethics, establishing that throughout history, the two have been intrinsically linked. Even positivist legal theorists, who deny any necessary connection between law and ethics, acknowledge the historical interplay between these domains. Furthermore, the linguistic dimension reveals that legal terms and phrases often carry ethical connotations, necessitating a judge's reliance on ethical principles for accurate interpretation.
     Addressing the debate between legal positivism and its critics, the paper introduces the concept of "ethical positivism," suggesting that ethical reasoning is not only permissible but essential for ensuring justice in legal interpretation. It recognizes a middle ground that advocates for the judicious use of ethical arguments in certain cases, allowing courts to consider ethical principles in tandem with legal norms to achieve just outcomes.
     The research then delves into the perspectives of legal philosophers Georges Ripert and Ronald Dworkin, both of whom have profoundly influenced legal thought. Ripert emphasizes the significance of justice over mere adherence to legal rules, underscoring the judge's commitment to ethical principles even in the absence of explicit legal provisions. Dworkin, on the other hand, advocates for an interpretative approach that reconciles past legal doctrines with societal ethics, positing that judges should strive for consistency and alignment with ethical values in their interpretations.
     The paper proceeds to discuss the five dependencies identified between law and ethics: historical, linguistic, ontological, existential, and psychological. Each dependency sheds light on the intricate connections between these two realms and emphasizes the significance of ethical considerations in legal interpretation.

In conclusion, the paper underscores that ethical principles are integral to the proper functioning of the Iranian legal system. While legislation aims to regulate ethical conduct, relying solely on legal ethics is insufficient for achieving the broader goal of ethical transformation within society. The importance of ethical considerations in both the legislative and interpretative stages is emphasized, highlighting the need for a comprehensive approach that integrates ethical principles into the entire legal process.
     The research concludes by asserting that ethics in judicial interpretation serves as a vital mechanism for shaping societal relations. Grounded in constitutional principles and Islamic norms, the Iranian legal system provides a suitable foundation for the integration of ethical reasoning in legal interpretation. The study contends that, according to legal and jurisprudential foundations, deducing legal judgments from legal texts based on ethical principles is not only feasible but imperative for fostering a just and equitable legal system.
     This research contributes to the ongoing discourse on the intersection of law and ethics, providing insights into the practical applications of ethical reasoning in judicial interpretation within the Iranian legal context. The multidisciplinary approach and comprehensive analysis aim to bridge the gap between theoretical discussions and practical implications, offering valuable perspectives for both legal scholars and practitioners.

In Islamic jurisprudence, individuals belonging to the divine religions of Judaism, Christianity, and Zoroastrianism, who possess divine prophets and celestial scriptures, are referred to as religious minorities, People of the Book, or Dhimmis. Through the Dhimma contract, they are permitted to live in Islamic societies. Non-Muslims residing in Islamic lands are obliged to enter into a Dhimma contract, necessitating adherence to two fundamental conditions: the payment of the jizya tax and compliance with the regulations of the Islamic society. Among the commitments for non-Muslims (Dhimmis) in Islamic countries is the prohibition of certain acts, such as sexual offenses. Unfortunately, one of the prominent sexual offenses, known as panderism [ghavvadi], persists among Dhimmis residing in Islamic societies, despite their commitment to Islamic penal laws. This offense has evolved from individual transgressions into organized crimes, including the trafficking of women and girls, leading to the establishment of networks of corruption and centers promoting indecency.

Research Question:

This study aims to address a significant gap in the existing body of research by focusing on the offense of panderism committed by non-Muslim minorities. Despite numerous studies on the subject, there is a lack of independent research specifically dedicated to panderism among non-Muslims.
     Therefore, the primary research question is whether the offense of panderism is unequivocally established for non-Muslims, and if so, what punishment is applicable to them.

Research Hypothesis:

The hypothesis posited for this research is that the offense of panderism by non-Muslim minorities is subject to legal consequences within the framework of Islamic penal laws. While existing legal provisions address the offenses committed by non-Muslims, the legislation does not explicitly mention panderism. This study aims to examine the clarity and adequacy of legal provisions, proposing a nuanced perspective on the equivalence of punishment between Muslim and non-Muslim offenders, particularly in cases of panderism.

Methodology & Framework, if Applicable:

This research adopts a doctrinal and analytical approach, drawing from a comprehensive review of library resources. The nature of panderism as a punishable offense will be first explored from a legal standpoint, examining the legal nature of the offense and its justifiability under the Islamic penal framework. Subsequently, a detailed exploration of panderism from a jurisprudential perspective will be conducted, comparing the legal consequences of panderism committed by Muslim and non-Muslim individuals. The study will scrutinize the legal and jurisprudential foundations to underscore any disparities and ambiguities in the treatment of this offense within Islamic societies.

The culmination of legal perspectives indicates a challenge in categorizing the offense of panderism by non-Muslim minorities as a crime and enforcing punishment solely based on the legality of crimes and penalties. However, a profound examination of the rational foundations and the refinement of principles allows for the substantiation of the criminal nature of panderism committed by non-Muslims (Dhimmis). Furthermore, a steadfast commitment to the broad interpretation of the narrative provided by Abdullah ibn Sinan, as recounted by Imam Sadiq (peace be upon him), sheds light on the role of a panderism. Described as a sexual intermediary who facilitates adultery between men and women, the narrative prescribes a punishment of seventy-five lashes and banishment from the city. Notably, this narrative encompasses both Muslim and non-Muslim offenders, emphasizing the act of bringing individuals together for unlawful sexual activities.
     The application of this narrative, inclusive of Dhimmis, overcomes existing challenges and obstacles, leading to the conclusion that there is no ambiguity in the criminality of a panderism, whether Muslim or non-Muslim. The change in religion does not impact the essence of the offense, as a mature, rational, and consenting individual intentionally gathering people for illicit acts remains unchanged. Therefore, establishing both the material and mental elements of the crime is unequivocal, enabling the enforcement of the punishment outlined in Article 242 of the Iran's Islamic Penal Code of 1392 SH. This entails seventy-five lashes and subsequent banishment from the place of residence upon a repeat offense.
     Moreover, through the refinement of legal principles, it becomes apparent that the execution of the prescribed punishment is equally applicable to non-Muslim pimpers. This affirms the equivalence of penalties between Muslim and non-Muslim offenders, addressing any potential concerns about disparate treatment based on religious affiliation.

In conclusion, this study navigates the intricate legal terrain surrounding the offense of panderism committed by non-Muslim minorities in Islamic societies. By examining both the legal and jurisprudential aspects, the research establishes that the criminality of panderism by non-Muslims can be substantiated through rational foundations and the refinement of legal principles. The study draws on a comprehensive interpretation of a narrated account from Islamic tradition, encompassing both Muslim and non-Muslim offenders, thereby offering a nuanced understanding of the offense.
     Furthermore, the research underscores that the conditions warranting the execution of punishment for panderism are applicable to non-Muslim pandersims without any shadow of doubt. The change in religious affiliation does not mitigate the criminal nature of this act, as it involves a mature individual intentionally facilitating illicit activities between consenting parties.
     This study contributes to the ongoing discourse on the treatment of offenses committed by non-Muslim minorities within Islamic legal frameworks. By clarifying the legal implications surrounding panderism, the research provides valuable insights for legal practitioners, policymakers, and scholars seeking a comprehensive understanding of the complexities associated with such offenses in the context of Islamic societies.

Following the triumph of the Islamic Revolution in Iran in 1979, the establishment of the Islamic government became a reality with the approval of the Constitution based on the principle of "Guardianship of the Competent." In the early years of implementing the constitution, deficiencies and necessary reforms became apparent, leading to amendments in 1989. Among the reforms, articles 1 and 2 of article 110 of the Constitution were introduced to enhance the role of the Supreme Leader. This paper critically explores the legal nature of the "General Policies of the System," a novel legal institution introduced officially in 1989.

Research Question:

The central question addressed in this research is: what is the legal nature of the general policies of the System within the Iranian legal system?

Research Hypothesis:

The hypothesis under consideration is that the General Policies of the System constitute a modern legal entity within the Iranian legal system, with their nature rooted in the Islamic principles and the theory of absolute guardianship of the competent. The normative nature of these policies, rather than directive, forms the basis for their legal analysis.

Methodology & Framework, if Applicable:

This research employs an analytical approach, utilizing library-based data collection. The methodology involves a comprehensive examination of the legal aspects surrounding the nature of the general policies of the system. The framework includes evaluating impacts, presenting arguments, critiquing these arguments, and presenting positive evidence. Special attention is given to the legal foundations, understanding the constitutional intent, and adopting a comprehensive perspective.

The analysis reveals that determining the legal nature of the General Policies of the System requires a deep legal investigation, detached from political discussions. The institution is presented as a modern legal entity, established officially in 1989, reflecting the evolving legal landscape of the Islamic Republic of Iran. However, critiques point to three main deficiencies in existing analyses: the neglect of legal foundations rooted in Islamic concepts, a lack of understanding of the constitutional legislator's intent, and a failure to adopt a comprehensive perspective in analyzing this innovative concept.
     The research criticizes arguments supporting the directive nature of the general policies of the system, emphasizing the need for a meticulous examination of legal foundations. It positively establishes the normative nature of these policies, considering this aspect a crucial element in correctly analyzing various related issues. The legal nature is rooted in the Islamic principles and the theory of absolute guardianship of the competent, highlighting the innovative nature of this institution within the Iranian legal system.

In conclusion, this research underscores the importance of a comprehensive legal analysis to determine the nature of the General Policies of the System in Iran. It highlights deficiencies in existing analyses, emphasizing the neglect of legal foundations, a lack of understanding of the constitutional legislator's intent, and the absence of a comprehensive perspective. The paper critiques arguments supporting the directive nature of these policies and positively establishes their normative nature, rooted in Islamic principles and the theory of absolute guardianship of the competent. While the normative nature has to some extent been solidified in constitutional practice, the article calls for further research to address remaining gaps and deficiencies and proposes mechanisms for their practical application within the political system based on legal principles. This research contributes to a nuanced understanding of the legal nature of the General Policies of the System for a non-Iranian audience, shedding light on their historical background, legal developments, and challenges within the Iranian legal system.