نوع مقاله : مقاله پژوهشی
نویسندگان
1 استادیار مجتمع آموزش عالی نهاوند، دانشگاه بوعلی سینا، همدان، ایران.
2 استادیار حقوق خصوصی، گروه حقوق، دانشگاه بوعلی سینا، همدان، ایران.
چکیده
کلیدواژه‌ها
عنوان مقاله [English]
نویسندگان [English]
The fact that the judge must reach certitude and then proceed to issue a judgment is a truth acknowledged in the law of proof of claim. Acquiring certitude is subject to a set of norms and rules called "ethics of certitude". Not all certitudes, with different bases, could be considered valid. Regardless of the philosophical and epistemological issues regarding the nature of certitude, how to achieve it is also very important. Relativists believe that the criterion of acceptability and validity of certitudes is their reliance on reason. A valid certitude is a certitude that is justified by sufficient evidence and reasons. A certitude that is not supported by reason lacks epistemological value and validity and cannot be used as a basis for action. The necessity of the judge's compliance with the rules related to the ethics of certitude is higher because judicial certitudes involve important social and practical consequences. The certitude of the judge seriously affects the rights and social affairs of the people; therefore, achieving the certitude is extremely important to the judge. In a descriptive-analytical way, the present article examined and compared the rights of proof of litigation with the criteria of certitude ethics. Whether the judge has the authority to evaluate the evidence freely or whether he has to agree to the provisions of the evidence and issue a verdict based on them are among the most critical challenges of proving a claim.
The current study examined proving a lawsuit in the courts from the perspective of ethics of certitude. According to al-Qaida, a judge must follow all the moral rules and knowledge frameworks to gain certitude, and only then can he make his certitude the basis for issuing a verdict. The basic question is whether it is possible to pay attention to these criteria in the court according to the rules governing the rights of proof of litigation and the criteria raised regarding the validity of certitudes. Is it possible that the rules related to proof of litigation conflict with the principles of certitude ethics? One of the most important challenges ahead is the concept of imposing proof on the judge. Some reasons, such as confessions, regardless of whether they convince the judge or not, "must" be the basis for a verdict. Such a concept strengthens the hypothesis that it is basically not important for the legislator to believe in the judge, and contrary to the initial idea, the judge, without certitude and knowledge about the subject of the lawsuit, must also make his decision. On the other hand, the free assessment and the granting of absolute discretionary powers concerning the evidence in the case give rise to the fear of judicial tyranny and disregard for reasons. It seems that a correct understanding of how the judge acquires certitude is related to the fundamental positions in the ethics of certitude. Without paying attention to these original foundations, getting a clear and comprehensive picture of the relationship between reason and the judge's certitude is impossible. Although the prevailing approach in the domestic and international legal systems is that the judge is free to evaluate and accept reason, epistemological investigations and attention to the foundations of moral certitude clarify that certitude gets its value and validity from reason and not vice versa. On this basis, it is not acceptable for the judge to hear (consider) the reason and pass it by without gaining certitude. Either one should argue against the reason, or as long as the light of the reason is clear, one should stick to its implication and believe its contents. In this sense, the imposition of evidence and their priority on the judge's certitude is more defensible than arbitrary freedom in accepting and rejecting evidence.
کلیدواژه‌ها [English]
منابع
الف) فارسی و عربی
https://jlq.ut.ac.ir/article_20108_443a38ba049d6347632afbd0ed10a75d.pdf
https://criticalstudy.ihcs.ac.ir/article_2746_4c185a302b836277696bb13312798e68.pdf
ب) خارجی
27. Audi, Robert (1995) The Cambridge Dictionary of Philosophy. Second Edition, London: Cambridge University Press.
28. S.Pardo, Micahel (2005). "The field of evidence and the field of knowledge". Law and philosophy, 24, pp. 321-392: (Accessed 1 December 2023)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=691703
29. S.Pardo, Micahel (2010). "The Gettier Problem and Legal Proof". Legal theory, 16, 2010, pp. 37-57: (Accessed 1 December 2023)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1596709
30. Damaska, Mirjan. (2019). Evaluation of evidence: Pre-Modern and Modern Approaches. First Edition, London: Cambridge university press.
31. Finch, Jonathan (2016). A Crisis of Belief, Ethics, and Faith. First Edition, New York: University Press of America.
32.Schmidt, Sebastian & Gerhard Ernst (2020), The ethics of belief and beyond understanding mental normativity. First Edition, New York: Routledge.
33. Thomas long, Eguene & Patrick Horn (2008). Ethics of Belief: Essays in Tribute to D.Z. Phillips, Springer.
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