فهرست مطالب mahdi hamze howeyda

The fact that the judge must reach certitude and then proceed to issue a judgment is a truth acknowledged in the law of proof of claim. Acquiring certitude is subject to a set of norms and rules called "ethics of certitude". Not all certitudes, with different bases, could be considered valid. Regardless of the philosophical and epistemological issues regarding the nature of certitude, how to achieve it is also very important. Relativists believe that the criterion of acceptability and validity of certitudes is their reliance on reason. A valid certitude is a certitude that is justified by sufficient evidence and reasons. A certitude that is not supported by reason lacks epistemological value and validity and cannot be used as a basis for action. The necessity of the judge's compliance with the rules related to the ethics of certitude is higher because judicial certitudes involve important social and practical consequences. The certitude of the judge seriously affects the rights and social affairs of the people; therefore, achieving the certitude is extremely important to the judge. In a descriptive-analytical way, the present article examined and compared the rights of proof of litigation with the criteria of certitude ethics. Whether the judge has the authority to evaluate the evidence freely or whether he has to agree to the provisions of the evidence and issue a verdict based on them are among the most critical challenges of proving a claim.The current study examined proving a lawsuit in the courts from the perspective of ethics of certitude. According to al-Qaida, a judge must follow all the moral rules and knowledge frameworks to gain certitude, and only then can he make his certitude the basis for issuing a verdict. The basic question is whether it is possible to pay attention to these criteria in the court according to the rules governing the rights of proof of litigation and the criteria raised regarding the validity of certitudes. Is it possible that the rules related to proof of litigation conflict with the principles of certitude ethics? One of the most important challenges ahead is the concept of imposing proof on the judge. Some reasons, such as confessions, regardless of whether they convince the judge or not, "must" be the basis for a verdict. Such a concept strengthens the hypothesis that it is basically not important for the legislator to believe in the judge, and contrary to the initial idea, the judge, without certitude and knowledge about the subject of the lawsuit, must also make his decision. On the other hand, the free assessment and the granting of absolute discretionary powers concerning the evidence in the case give rise to the fear of judicial tyranny and disregard for reasons. It seems that a correct understanding of how the judge acquires certitude is related to the fundamental positions in the ethics of certitude. Without paying attention to these original foundations, getting a clear and comprehensive picture of the relationship between reason and the judge's certitude is impossible. Although the prevailing approach in the domestic and international legal systems is that the judge is free to evaluate and accept reason, epistemological investigations and attention to the foundations of moral certitude clarify that certitude gets its value and validity from reason and not vice versa. On this basis, it is not acceptable for the judge to hear (consider) the reason and pass it by without gaining certitude. Either one should argue against the reason, or as long as the light of the reason is clear, one should stick to its implication and believe its contents. In this sense, the imposition of evidence and their priority on the judge's certitude is more defensible than arbitrary freedom in accepting and rejecting evidence.

 Laws of procedure are full of templates and forms through which the will necessarily emerges.  "Formalities" are considered as one of the most important forms. Sometimes, the proceedings must be carried out with special arrangements and rituals that the legislator has determined, and these special arrangements have turned "formalities" into one of the important principles and characteristics of proceedings. The stubbornness of the ritual rules and their subjectivity have made it difficult to understand the nature of the formalities. With such a bad reputation, these formalities lose their attraction to be used and studied. For this reason nowadays, judicial systems  tend to reduce formalities and specify a minimum of them for proceedings. However, the present article tries to examine the formalities and understand their meaning through functional analysis. The most prominent and important theory in contemporary sociology is "functionalism" or the attitude of authenticity of function.  This analysis focuses on efficiency and function. One of the important principles raised in the interpretation of formal rules is the interpretation of these rules based on efficiency as well as goal-oriented interpretation. Paying attention to function and purpose has been accepted as a basis in the legislation and implementation of formal rules. At least in the civil code, there are cases where the legislator specified the function and purpose of the regulations. Article 155 of the Civil Code for example, has mentioned the function and purpose of providing evidence as follows: "Providing evidence is to preserve it...". The functions and purposes of other judicial institutions are not authorized and should be analyzed with inferential tools. In ascertaining and inferring the functions and goals, it should be noted that a rule may have several functions and goals. Although the function of communication is to inform the audience, some contents in the judicial document have a separate goal, which cannot be achieved by simply informing the audience. For this reason, by achieving a function of a rule, the work cannot be considered finished, and perhaps this is why a group believes that the search for the function and purpose of the rules should be done individually in each case and situation. what is the function of formalities? What purpose and function the legislator expect from this institution by determining them? The study hypothesizes that formalities cannot affect the main functions of an institution. A rule, the absence of which disrupts or makes incomplete the function of the relevant institution, is not a formality.