اجتهاد قاضي در نظام قضايي ايران

Ijtihad of the Judge in Iranian Judicial System

One of the qualifications for a judge in Islamic legal jurisprudence is ijtihad in its common usage, although some Islamic jurists have opposing views to this. This article, preferring the views which oppose the necessity of ijtihad for the judge, critiques the view which considers it necessary. By describing the Iranian legal system and reviewing the religious reasons, this study emphasizes two fundamental issues: appointment of the judge by an authoritative legal reference and litigation based on rules and laws derived through a correct procedure of inference. The article goes on to deal with how these two principles are guaranteed in the current legal system and mentions some of the shortcoming and practical problems with the "necessity view". It asserts that, due to many changes in litigation and judgement procedures, such a prerequisite seems very difficult. It cannot be denied that ijtihad is a great advantage in line with the goals of Islamic legal system and Iranian constitution. Non-mojtahid judges must also be well familiar with Islamic jurisprudence and the principles of Islamic law, which are the basis of the current legal system and laws.