Linking judicial procedure with the law in sentencing: from rule-making to rule-making

Document Type : Original Article

Authors

1 Doctoral student of Criminal Law and Criminology, Department of Law, Shahrekord Branch, Islamic Azad University, Shahrekord, Iran

2 Assistant Professor, Department of Law, Shahrekord Branch, Islamic Azad University, Shahrekord, Iran

3 Assistant Professor, Department of Law, Shahrekord Branch, Islamic Azad University, Shahrekord.

Abstract

The relationship between judicial procedure and law in sentencing: from the interpretation of the rule to its creation


Field and Aims: The main sources of criminal law have the role of rulemaking and content making in the penal system of any country, and the secondary sources have only the role of the interpretation of the rule. This longitudinal relationship between the two sources of criminal law has led to the discipline and integration of the penal system. This longitudinal relationship is more prominent than in other areas, especially in the area of sentencing, which is the manifestation of criminal justice.
Iranian jurisprudence in the field of principles and conditions governing the determination of punishment in various manifestations such as determining the type and amount of punishment, the principle of proportionality, the principle of legality of punishment, application of institutions favorable to the convict, review of punishment and adjustment of punishment Rule-making has taken a step.
The alignment of judicial precedent with the law is based on various reasons. This article aims to study the link between judicial precedent and the obligatory sources. Challenges related to the content of the law (ambiguity and lack of transparency), validity of the law (being bylaw and temporary), legislative position (diversity of legislative authorities and weakness of the legislator) and structure of the law (lack of code and ambiguity of the relationship between laws) has led to the gradual judicialization of punishment rather than legality.
Method: The present research was carried out using a descriptive-analytical

Keywords

Political Sociology of Iran
Volume 3, Issue 4 - Serial Number 12
February 2021
Pages 3493-3510

Files

Share

How to cite

Statistics