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

The interpretive competence of judges has always been a point of conflict. Its advocates regard it as an essential and efficient institution contributing to dynamism of laws, which can bring the laws closer to political and legal requirements in keeping with social change. Its critics, however, reject it claiming it can undermine the rule of law, increase the danger of abuse and corruption, and infringe upon basic rights. Regardless of these criticisms, interpretation of law is an inseparable part of legal resources, procedure, and adaption of laws to actual claims. Therefore, the concern and focus of legal discussions must be on how to supervise and control this legal institution, rather than reject it. In the first step, it must be ensured that principles of accountability and rule of law are observed, and then a balance must be struck between the interpretation made by judges and the spirit of law, legal principles, and human and citizenship rights. The realization of this aspiration is subject to a two-stage solution. Stage one: familiarity with the special, fluid nature of judicial affairs, and admission of its fundamental difference from execution of laws by law enforcement institutions. Stage two: recognition of interpretive competence as a special legal institution, and envision of control, priori, and posteriori mechanisms based on recently developed methods of supervision in administrative law, such as soft law and network supervision. In and of itself,

Dar al-Islam''s population consists of Muslims (majority)، the people of the dhimma (non-Muslim citizens of an Islamic state known as the minority) and Al-musta''min (an Islamic classification for a non-Muslim foreigner that enters Muslim lands for less than a year and is legally protected by the Muslim authority). The fact that public courts of Islamic states have the jurisdiction to deal with the legal disputes of non-Muslim foreigners and minorities is not controversial. But، the debate is whether minorities in an Islamic state، which are religiously distinct from Muslims، can have special and exclusive courts. The assuming response is positive، do these courts have the jurisdiction to investigate the foreigners'' lawsuits or at least legal disputes of those groups of foreigners who have the same religion with the minority? The present research paper، with reviewing the evidences and relevant legal texts and assuming a positive answer to the above mentioned questions has shown the international jurisdiction of public courts of the Islamic states as a precondition for the realization of the system of conflict resolution of rules in Islamic law and jurisprudence.