Justification of the Article 167 of the Constitution on the Basis of Herbert Hart’s Contributions to Legal Philosophy

According to the article 167 of the Constitution, “the judge is bound to endeavor to judge each case on the bases of the codified law. In case of absence of any such law, he has to deliver his judgement on the basis of authoritative Islamic sources and authentic judicial decrees (fatwas).” To this article certain fundamental objections have been levelled which are said to come from a legal formalism. Legal formalism based on the positivistic school of law (legal positivism) and mechanical legal philosophy considers formalist juridical reasoning as the only method of juridical reasoning irrespective of any external factors and takes the rule of law as dependent on the fulfilment of this method of reasoning. However, professor Herbert Hart, as one of the leading political philosophers of the modern law, while rejecting the theory of the mechanical law, and admitting the defects of the law, holds the view that judges should have innovations in their legal decisions and that judges have certain kind of jurisdiction over the cases. Therefore, this article provides the reader an interpretation of the rule of law on the basis of Hart’s theory of law, which meet the objections levelled at the formalistic nature of the article 167 of the Constitution on the one hand, and it can be regarded as a progressivist approach in facing defects of the rules and laws on the other.