The Judicial Jurisdiction of Penalization Based on the Islamic Resources in the light of Principles of the Constitution and Ordinary Laws

The existence of legal gaps is quite usual and conceivable in all statute legal systems and it is the duty of the legislator to find the solutions for these cases. The constitutional legislator has recognized Islamic sources and valid juristic opinions (Fatwas) as referable sources for judges in principle 167.However, there is severe disagreement on the inclusion of this rule in criminal cases, particularly on the important issue of determining the punishments. The reflection of the provisions of the principle 167 in some of the acts passed by the Islamic Consultative Assembly and confirming them by the Guardian Council as the interpreter of the constitution, the manner in which the terms of the principle 167 are expressed and the legislative history of this principle all strengthen the doctrine that try to extend the mentioned rule to the criminal matters, including the issue of penalization.
This paper due to the examination of the reasons and with regard to the recent changes taken place in the Islamic penal code believes the executive scope of that aforesaid doctrine doesn’t include the discretionary punishments (Ta`zirat) which by the way constitutes the main criminal punishments.