Politics and Judgment "The Authority of Judge's Knowledge from the Perspective of Abi Salah Halabi and Imam Khomeini"

Document Type : Original Article

Authors

1 PhD student in Jurisprudence and Fundamentals of Islamic Law, International Campus, Ferdowsi University of Mashhad

2 Associate Professor, Ferdowsi University of Mashhad

3 Professor of Ferdowsi University of Mashhad

Abstract

The permission of an fallible judge to invoke his personal knowledge for issuing of judgment is one of the long-standing jurisprudential issues, which is still an important issue for the judiciary today.Evidence in criminal matters in the judicial system is the main element of the case before the judge,cause according to Article 37 of the Constitution of the IslamicRepublicofIran:“Innocence is to be presumed,and no one is to be held guilty of a charge unless his or her guilt has been established by a competent court.The knowledge of the judge has a special place as one of the proofs of litigation in contemporary legal systems,especiallyin the Islamic judicial system.This symbol is provided in the Islamic Penal Code in Articles160-211-212of theIPCin 2013.Although the validity of the knowledge of the judge as the reason for proving the claim has been the subjectof discussion and dispute among Imami jurists,but well-known scholars believe in the authority and validityof the knowledge of the judge. Imam Khomeini(RA)considers the knowledge of the judge as an authority,both in the right of God and in the people's rights,this is true for both civil and criminal matters, provided that there is no evidence against his knowledge.In other words, we can say that legislation is superior to judge-made rules.However,the late Abi Salah made a distinction between God’s right and people’s rightandstated thatafallible judge cannot relyon his knowledge in the affairs of the right of God. Examining these statements and explaining the arguments and the final opinion are the topics of this article.

Keywords

Political Sociology of Iran
Volume 5, Issue 9
November 2022
Pages 1310-1322

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