نوع مقاله : مقاله پژوهشی
نویسندگان
1 استادیار، گروه حقوق، دانشگاه آیت‌الله بروجردی، بروجرد، ایران.
2 دانشیار، گروه حقوق، دانشگاه آیت‌الله بروجردی، بروجرد، ایران
3 کارشناسی ارشد، گروه حقوق خصوصی، دانشگاه آیت‌الله بروجردی، بروجرد، ایران.
چکیده
کلیدواژه‌ها
عنوان مقاله [English]
نویسندگان [English]
The expansion of legal relations in societies and the inadequacy of laws make the necessity of interpretation more prominent. This has led legal doctrine to outline different approaches to interpretation. The realist approach to interpretation considers judicial justice to be the implementation of the right as it is, evaluating each issue based on its criteria and not considering laws to have generality over all issues and subjects. On the other hand, legal dogmatism considers the sole duty of the judge to be the application of the law and measures judicial justice based on its observance. The intellectual orientation of each of these schools of thoughts’ interpretation can lead to the creation of different judicial procedures in similar cases. Accordingly, the current research, using a descriptive-analytical method, examines the schools of thoughts in the interpretation of laws and their application in Iranian private law. The results indicate that private law in the Iranian legal system, like other parts of Iran’s law, follows the Constitution. Accordingly, considering Principle 167 of the Constitution, the authenticity of the content of text is a legal principle in Iran’s law, and the judge or legal scholar must consider the text of the law. However, in Iran’s private law, although the text of the law seemingly has authenticity, nor does it mean that the judge is limited to interpreting the words of the law. In the Iranian private law, the law clearly specifies the probative force of evidence; otherwise, the natural principle inherent in judicial competence is the judge's freedom in evaluating evidence. Therefore, from the legislator's perspective, in various cases, referring to considerations outside the law has been the criterion for determining the verdict, and also in some cases, interpretation should be based on external criteria, such as referring to custom regarding the determination of a wife's alimony and etc. However, in some cases, it has left the determination of the source and limits of interpretation to the interpreter or judge, so that justice becomes the dominant aspect of the verdict.
کلیدواژه‌ها [English]
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