Legislative Voids and Application of Jurisprudent's Legal Opinions in the Judicial System of Iran (A survey of Article 167 of IRI Constitution)

Article 167 of the Constitution devised towards removing the flaws in the legal system confronts numerous theoretical and practical obstacles in its implementation. On the one hand, the way of access to the authoritative sources and legal opinions introduced in the Article is ambiguous and on the other hand, the possibility of benefitting from some of these sources is under question for some judges. Besides, there is no ruling for many new arising questions of law due to their unprecedented nature in jurisprudential sources. In case we find a ruling for them in these sources in spite of all difficulties, the diversity among religious scholars would hinder the creation of a single and organized system in the judicial system harming the foundations of the society’s confidence in the judiciary. Presenting some of the obstacles before this article, we would try- as far as these Articles are valid- to apply certain interpretive methods towards reducing the domain of their implementation and resolving their problems. The practical approach of the courts i.e. their little interest in referring to this article, particularly in criminal affairs, is also a witness to this fact.