نوع مقاله : علمی - پژوهشی
نویسنده
استاد گروه فقه شافعی، دانشکده الهیات و معارف اسلامی، دانشگاه تهران، تهران، ایران.
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
Transparency and foreseeability are two criteria of quality of law. That is, the intended meaning of the legislator must be so clear that ordinary citizens in person or by legal counsel can understand it and predict the relationship between their behavior and the law and the results of the interaction. In the allegorical expression of law; where examples of a general concept prescribed by the law and recognition of similar issues is left to the commentators and executors, the transparency and predictability -as two criteria of law quality - are weakened and the path of interpretation, comparison and analogy is opened up for discussion. In such a situation, misinterpretation of the law threatens the balance between individual rights and freedoms and public interests. In such cases, the spirit of that general concept or the common description of its examples, or the rationality of the statute, or the value protected by the legislator, must be found and considered as the criterion of the ruling of statute. This interpretive approach, which has been used more by English judges than others, has a considerable practical position in the interpretation of criminal statutes of Iran due to the multiplicity of allegorical provisions and their misinterpretation. After introducing the topic and explaining how it deals with the quality standards of law, this essay analyzes a sample of judicial misconceptions and statement its interpretive approach.
کلیدواژهها [English]
منابع
الف) فارسی و عربی
ب) انگلیسی
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