Legislative gaps and the implementation of fatwas in the Iranian judicial system (a reflection on Article 167 of the Constitution)

Type : Research Article

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Abstract

Article 167 of the Constitution, devised to remove flaws in the legal system, faces numerous theoretical and practical obstacles in its implementation. On the one hand, the method of accessing the authoritative sources and legal opinions introduced in the Article is ambiguous, and on the other hand, the possibility of benefiting from some of these sources is questionable for certain judges. Moreover, there is no ruling for many newly arising legal questions due to their unprecedented nature in jurisprudential sources. Even if we find a ruling for them in these sources despite all difficulties, the diversity among religious scholars would hinder the creation of a unified and organized system within the judiciary, thereby undermining public confidence in the judicial system. Presenting some of the obstacles before this Article, we attempt—as far as these Articles remain valid—to apply certain interpretive methods to reduce the scope of their implementation and resolve their problems. The practical approach of the courts, i.e., their limited interest in referring to this Article, particularly in criminal matters, also attests to this fact.

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Journal of Islamic Law Research
Volume 12, Issue 2 - Serial Number 34
September 2012
Pages 79-100

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  • Received: 27 July 2011
  • Revise: 16 August 2011
  • Accepted: 06 September 2011

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