1
Assistant Professor, Tehran University, Faculty of Law Campus Farabi, Iran
2
d
Abstract
The discretional procedure is a kind of criminal procedure, in which the enforcement of law is given to the executor. This theory is currently being implemented in some states of the United States, but the roots of this type of proceedings are available in Islamic jurisprudence, and it is based on the principle that says The punishment is according to the judge's opinion. This rule confers the judge, punishment and its limits with some general and very restrictive rules, such as "Al-Tazir Dun Al-Hadh", based on the pragmatism and effectiveness of punishment.
In Iran, a gudge is considered to have a narrow legal discretion that it is required to make a decision in that area in which judges are sometimes required to vote for a violation of their beliefs and consciences and even justice,because the law does not allow them to be flexible. In the jurisprudential theory, the judge in each case decide proper punishment, in the light of all the conditions. In the US judiciary, the judge is not completely reinstated, and a series of local and regional guidelines for determining the punishment for a judge is considered in conjunction with the law to mediate in both ways. In this article, it is tried to examine the necessity of returning to a judicial rather than legal disretion judicial using the experience of this American theory, by examining the discretional judgment theory and its dimensions through the library method.
