نوع مقاله : مقاله پژوهشی
نویسنده
استادیار، گروه حقوق خصوصی، واحد تهران مرکز، دانشگاه آزاد اسلامی، تهران، ایران.
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
Introduction
The ethical dimension of adjudication and the extent to which judges may moralize the law constitute one of the most fundamental and contested issues in contemporary jurisprudence. With the growing complexity of social relations and the emergence of novel public and private disputes, courts frequently encounter statutory texts that appear incomplete, ambiguous, morally deficient, or inadequate for delivering substantive justice. This gives rise to a central theoretical question: to what extent may—or must—a judge ethically shape the law through interpretation?
Legal positivist and textualist approaches prioritize enacted law and maintain a strict separation between law and morality. From this perspective, judicial ethics are fulfilled through faithful adherence to legislative intent and textual meaning, even if the result is morally unsatisfactory. In contrast, instrumentalist and interpretivist approaches view law as a means to an end, permitting judges to incorporate moral principles into legal reasoning in order to achieve genuine judicial justice.
The present article examines the possibility and limits of ethics-based judicial interpretation by analyzing two competing paradigms: textualist positivism and instrumentalist interpretivism. Its central thesis is that the legitimacy of judicial ethical intervention hinges on whether law is conceived as an end in itself (subject-centered textual authority) or as an instrument for realizing justice (means-oriented interpretive authority).
Method
This research employs a descriptive-analytical methodology grounded in doctrinal legal analysis and jurisprudential theory. Classical and contemporary theories associated with positivism, textualism, and interpretivism are examined to elucidate their foundational assumptions concerning judicial authority, ethics, and legal validity.
Primary legal-philosophical texts, models of judicial reasoning, and theoretical debates on judicial discretion, morality, and interpretation constitute the core materials. The analysis is conceptual and normative rather than empirical, seeking to identify the theoretical locus of each school regarding judicial ethics. Theoretical sampling focuses on representative doctrines within positivist-textualist and instrumentalist-interpretivist traditions. Textualist positivism is analyzed through principles such as textual objectivity, separation of law and morality, and prohibition of judicial moral creativity. Instrumentalist interpretivism is explored through purposive reasoning, rational interpretation, and moral coherence.
Given the theoretical nature of the study, precision is achieved through conceptual clarification, internal coherence, and fidelity to original frameworks. Analytical strength derives from systematic comparison and clear demarcation between the paradigms. The study integrates normative legal theory with analytical jurisprudence, combining descriptive exposition of doctrines with evaluative reasoning on their implications for judicial ethics and justice.
Conclusion
The findings demonstrate that the possibility of ethics-based judicial interpretation is fundamentally contingent upon the underlying conception of law.
From the textualist-positivist standpoint, law constitutes an autonomous normative system whose validity is independent of moral content. Justice is presumed rather than substantively realized. The judge’s role is confined to applying enacted law, with ethical reasoning excluded from interpretation. This position is defended on grounds of preventing judicial dictatorship, preserving legal certainty, avoiding normative disorder, and safeguarding legislative supremacy. Judicial moralization of law is thus impermissible, and the judiciary is characterized as the “servant of the legislator” (‘abd al-muqannin).
In contrast, instrumentalist interpretivism conceives law as a means for achieving genuine judicial justice. Legal authority is purposive rather than intrinsic, and statutory meaning emerges through interpretation informed by rationality, social evolution, and moral principles. Where provisions lack ethical substance or fail to address new realities, judges are permitted—and indeed obligated—to interpret law by reference to rational social practices (sīrat al-‘uqalā’), customary understanding, societal transformations, judicial exigencies, legal metaphors, and the instrumental function of norms.
Within this framework, ethics-based interpretation is not judicial overreach but a necessary corrective mechanism. The judge ceases to be a passive executor and becomes an ethical collaborator assisting the lawmaker in realizing justice. Accordingly, the judiciary is reconceived as a savior and supporter of the legal system rather than a potential threat to its integrity.
Ultimately, ethical judicial interpretation is neither inherently legitimate nor illegitimate; its validity depends on the governing theoretical paradigm concerning the nature of law and judicial authority. Recognizing this distinction is crucial for resolving ongoing debates on judicial ethics, discretion, and the moral boundaries of legal interpretation.
کلیدواژهها [English]
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