Document Type : Original Article
Authors
1
Ph.D. student, Department of Jurisprudence and Fundamentals of Law, Payam Noor University, Tehran, Iran
2
Associate Professor, Department of Jurisprudence and Fundamentals of Law, Payam Noor University, Tehran, Iran
3
Professor, Department of Jurisprudence and Fundamentals of Law, University of Tehran, Tehran, Iran
Abstract
In Article 166 of the Constitution, it is stated that the judgments of the courts must be substantiated and documented by the legal articles on the basis of which the verdict was issued. In this principle, it is considered necessary to cite mandatory sources in the judgments of the courts, and it is also stated in Article 167 of the Constitution. that the judge cannot refuse to deal with a lawsuit and issue a verdict on the pretext of silence, defect or abridgement or conflict of codified laws, but he is obliged to try to find the verdict of every lawsuit in the codified laws and if no verdict is found in the laws, citing the sources valid Islamic or valid fatwa to issue a verdict and this principle allows the judge to issue a verdict in cases of silence, defects, brevity, conflict and ambiguity of the law by referring to sources or valid jurisprudential fatwas as the case may be In civil affairs, following the order of Article 167, valid legal sources and fatwas are among the mandatory sources, but in criminal matters, there is a difference of opinion as to whether Article 167 is valid in this context as well or not. The difference of opinion in this matter is due to the fact that some judges have referred to jurisprudential sources regarding Shariah prohibitions for which no punishment has been determined in the law, and some judges have referred to jurisprudential sources and fatwas in these cases
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