Assistant Professor at Women and Family Research Institute
Abstract
The legal structure of the Islamic Republic of Iran is designed in such a way that its output will never be in direct conflict with Sharia and the religious values of family. However, there are some judges who do not have much commitment to our foresaid religious values; for example, they consider the criminalization of hijab or the prohibition of sex out of marriage bond against human rights. Under the guise of "judicial activism", these judges try to play the role of a social activist and benefit from capacities such as interpretation to rewrite the law in practice. This study argues that judicial activism is an ominous and dangerous phenomenon that can seriously threaten the religious values of family institution in Iran. The main concern of this study is to show that even from the point of view of legal (out of religious context) reflections, judicial activism lacks any kind of legal dimension. This claim will be proven in the form of four legal arguments: (1) & (2) judicial activism is in conflict with the provisions of the Constitution, including the separation of the three legal force and democracy-based governance;(3) judicial activism causes confusion in judicial opinions and as a result the instability of the law, a phenomenon that is part of the identity of the law; (4) It should also be noted that judicial activism is in conflict with the demands and intentions of the legislators.
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