The legitimate scope for applying judicial discretion in the light of the rule of law (Case study of illegal sexual relationship)

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mirmajidi SEPIDEH; GHOLAMLOO JAMSHID

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Journal Paper

Paper Information

Journal: CRIMINAL LAW AND CRIMINOLOGY STUDIES Year:2019 | Volume:48 | Issue:2 Page(s): 447-471

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Title

The legitimate scope for applying judicial discretion in the light of the rule of law (Case study of illegal sexual relationship)

Author(s)

mirmajidi SEPIDEH | GHOLAMLOO JAMSHID | Issue Writer Certificate

Keywords

Judicial discretionQ1

Rule of lawQ2

Legal ruleQ1

Legal principlesQ1

Illegal sexual relationshipQ1

Abstract

Sometimes a judge faces a legal problem with two or more legal responses that each of them is legally correct. In this situation, the judge can’ t find the valid correct legal answer on the basis of the facts of the case in order to do his traditional duty for application a general rule to a case, rather, it is necessary to make decision by applying of Judicial discretion and going beyond the Legal rules in the set of rules. Under such circumstances, the Rule of law may be severely threatened, and this is the biggest challenge faced by the Judicial discretion. The normative and theoretical link between the Judicial discretion and the cause of the Rule of law is an important issue in the philosophy of law, but in the legal literature, and in particularly in criminal law we have not paid much attention to it. this article seeks to understand it with an emphasis on interpretive theory. Also, analyzes the extent of the Judicial discretion to construct Illegal sexual relationship applicability in the criminal justice system of Iran by using the qualitative research. The result shows that the judges sometimes criminalize the crime of Illegal sexual relationship when they need to interpret it. In a judicial discourse, it seems that the applying of Judicial discretion is far removed from the criteria of the Rule of law in the recognition of instances of Illegal sexual relationship.

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APA: Copy

mirmajidi, SEPIDEH, & GHOLAMLOO, JAMSHID. (2019). The legitimate scope for applying judicial discretion in the light of the rule of law (Case study of illegal sexual relationship). CRIMINAL LAW AND CRIMINOLOGY STUDIES, 48(2 ), 447-471. SID. https://sid.ir/paper/260704/en

Vancouver: Copy

mirmajidi SEPIDEH, GHOLAMLOO JAMSHID. The legitimate scope for applying judicial discretion in the light of the rule of law (Case study of illegal sexual relationship). CRIMINAL LAW AND CRIMINOLOGY STUDIES[Internet]. 2019;48(2 ):447-471. Available from: https://sid.ir/paper/260704/en

IEEE: Copy

SEPIDEH mirmajidi, and JAMSHID GHOLAMLOO, “The legitimate scope for applying judicial discretion in the light of the rule of law (Case study of illegal sexual relationship),” CRIMINAL LAW AND CRIMINOLOGY STUDIES, vol. 48, no. 2 , pp. 447–471, 2019, [Online]. Available: https://sid.ir/paper/260704/en

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