The place of law in the realization of legal justice and its influence on judicial interpretation: A study of the relationship between law and legal rule in the Iranian legal system.

Shahabi, Mahdi

doi:10.30497/law.2014.1575

The place of law in the realization of legal justice and its influence on judicial interpretation: A study of the relationship between law and legal rule in the Iranian legal system.

Type : Research Article

Author

Mahdi Shahabi

10.30497/law.2014.1575

Abstract

The unification of law and legal rule represents one of the characteristics of legal positivism, based on the legal rule, and leads to the unification of law and statute. This can generate state justice and, therefore, cause the literal interpretation of the law. However, can we, by insisting on the distinction between law and legal rule, create the grounds for a transition from state justice to customary or divine justice and thereby move away from the literal interpretation of the rule toward an interpretation based on the general principles of law? It seems that the quality or type of interpretation in each legal system depends on the quality or type of legal justice in that system, and the type of legal justice depends on the foundation of the legal rule. Based on an analytical and positive method, but not on a state-oriented method or that of Kelsen, this study supports the distinction between law and legal rule, rejects the monopoly of state will in the foundation of the legal rule—especially in the Iranian legal model—and provides the grounds for moving beyond state justice and, consequently, the literal interpretation of the law.

Keywords