Reflection on Resorting to Fiqh in the Field of Criminal Law, with Emphasis on the Philosophy of Law and the Islamic Penal Code of Iran (1392 ) in the Legal System of Iran

In 1358, the legislators of the Constitution of the Islamic Republic of Iran stipulated that judges must refer to Fiqhi reliable sources and fatāwā (religious verdicts), and since then, this particular type of launching into criminal law was the starting point for major debates between lawyers and judges in the field of theory and practice. Majority of the lawyers for some various reasons, especially the opposition of the provisions of Article 167 to the principle of ‘the legality of crimes and punishments’, ambiguity in recognizing valid Fiqhi sources and fatāwā, and the opposition of such measures to the philosophy of legislation in the Islamic state, intend to limit and reduce the scope of this principle, so that the provisions of this principle cannot be applied to criminal matters. But on the other hand, judges face with legal obligations to refer to fiqh at a time of defect, as well as the ambiguity and silence of the laws. In this paper, while expressing different views on this subject with reference to the final decision of the legislators in 1392, as well as finding the jurisprudential roots of the subject, and also focusing the philosophy of the legislation in Iranian legal system, judges’ reference to fiqh is only possible when the cases are limited to Shari'a criminal laws or in cases of ambiguities related to qisas1 and diya2 , and it has been introduced as the opposite point of ta’zir3wherein there exists not such a possibility.