عنوان مقاله [English]
According to the Article 167 of the Constitution ‘the judge is bound to endeavor to judge each case on the basis of the codified law. In case of the absence of any such law, he has to deliver his judgment on the basis of authoritative Islamic sources and authentic fatwa.’ There is no dispute about that the judge can (and even has to) refer to authoritative Islamic sources. In penal cases, however, some people agree and some others disagree. Those who agree make reference to the above Article and those who disagree to the Article 36 of the Constitution. Because of certain problems in referring to fiqh (jurisprudence), some scholars think that this principle dose not rule penal cases; and, where there is no law, they insist to acquit [the charged].
In the present article, attempts are made to explain the subject of dispute; and, then, the author goes to judge between proponents and opponents. In this regard, the Islamic punishment Code 1392/2013 has been discussed and emphasis has been put on the point that in penal cases, fiqh can be referred to; though, in this regard, there are certain points which should be taken into account.