جستجوی مقالات مرتبط با کلیدواژه « proportionality of responsibility » در نشریات گروه « فقه و حقوق »

The spirit of the law is one of the sources of sentencing in criminal courts, and considering it as a source that conflicts with the principle of the legality of the crime and the principle of interpretation in favor of the accused, it has prevented its proper use to issue a sentence; While its function is to fill the gaps and eliminate the shortcomings of the aforementioned two principles. This outward view has caused the term "spirit of the law" to not be reflected as much as it should be in criminal law. This legal institution does not seek to criminalize new issues . rather, in a logical way, it  is trying to investigate the possibility of a limiting or expanding  the legal issues to involved or similar new issues so that the sentence prescribed in the law is applied to other issues, observing the principle of proportionality of crime and punishment. Its full function is also based on the rule of "Al-Tazir le kol'e   act muharram" –a jurisprudential rule meaning there can be  a sort of punishment for every haram act.-in Tazirat-punishment-. The spirit of the law also has a jurisprudential  aspect, and it has appeared in jurisprudence as the spirit or taste of sharia , and delelet tanbih, elghaee faregh ,  and the appropriateness of the ruling and subject matter, and custom can be considered as evidence of its authenticity. The spirit of the law as an extracted ruling is based on the discussion of words and has a preliminary position for the discovery of rulings on practical principles, including the interpretation in favor of the accused and narrow interpretation.In this article, this institution of criminal law, as one of the sources of sentencing, has been investigated with a descriptive and analytical method, and in order to apply it, examples of legal texts have been mentioned in all stages.