Reasons of Judge`s Knowledge Preference to other Methods of Evidence Acquisition

Transcription

1 Pal. Jour. V.16, I.3, No , Copyright 2017 by Palma Journal, All Rights Reserved Available online at: Reasons of Judge`s Knowledge Preference to other Methods of Evidence Acquisition Mohammadreza Kazemigolvardi, Corresponding Author, Assistant Professor, Mashhad Branch, Islamic Azad University, Mashhad, Iran Mehdi Soleimantabar Mashhad Branch, Islamic Azad University, Mashhad, Iran Abstract Securing of evidence is the most important part for pronouncement and judgment in criminal or civil causes. To secure evidence, different methods are mentioned that judge`s knowledge is one of them. In this paper, we consider reasons of authority of judge`s knowledge from civil-jurisprudence point of view and provide some reasons for its preference. Key words: judge, reasons, securing of evidence, authority, jurisdiction, Iranian law Introduction Securing of evidence is one of most important stages in trial. The judge attaints to knowledge by using means voluntarily as well as different methods of evidence acquirement that is valid for him and/or it is possible that each of those methods of securing evidence attains him to accuracy or negation of subject. Personal knowledge of a judge is predicted as one of methods of substantiation of claims and it is emphasized from early Islam with jurists` opinion especially Imami jurists. Moreover, it presented in scientific, juridical and seminary meetings from long time and some arguments are expressed in this field that it can be said that knowledge of judge has citation validity. Validating judge`s knowledge is very significant because of current requirement because it is possible that we cannot demand with legal and religious reasons like confession, attestation and compurgation because of complexities of contemporary world, deceptions and crafts. Therefore, it is here that the role of a fair and skilled judge appears. Because of this matter, after Islamic Revolution, in Iranian positive laws, judge`s knowledge and his moral scene are mentioned as methods of substantiation of claims including criminal and civil claims by legislators as well as in laws. One of most important responsibilities that lead to adjudication is execution of fair and correct trial. Judgment scene is emanation of spirit of justice. Then, judges should carry out and perform law such that does not cause denial of justice. Here, it is necessary for him to achieve moral scene and inner peace in trial and verdicts. Judge`s knowledge is one of important cases in adjudication and means of substantiation of claims that often past and contemporary jurists presented their opinions about it and most of Shi`a scholars accepted validity of judge`s knowledge in proving of claims and crimes. In Iranian criminal law, validity of judge`s knowledge also is accepted as one of proving means, both in civil and criminal laws. In this paper, we consider authority and preference of judge`s knowledge, that means rule of judge`s knowledge on other means of securing of evidence. Lexical concept of evidence Evidence means leader, guide, master, argument, and something that is used for proving a matter (Amid, 1990:964). It is also applied as proof (Ensaf Poor, 1994:445) and sign. In other words, evidence (reason) is used for proving affairs in claims (Ja`fari Langroudi, 2003: 309). Moreover, in another definition, reason is synonym with argument and analogy and it is said that whatever satisfies spirit for existence of a reality, it is the evidence (Katouzian, 2006:20). In criminal affairs, reason is defined as anything that proves existence or lack of a matter and/or verification of a claim (Ashouri, 2004:201). Alternatively, reason is expressed as any legal tool that helps legal authorities in fact discovery, moral scene achievement and adoption of fair decision (Goldouzian, 2006: 14). As it is observed, in recent definitions, reason is interpreted as effective Palma Journal

2 Reasons of Judge`s Knowledge 603 tool in trial stages. In a rule-oriented view, reason is a collection of executable rules for obtaining a crime in relation with outside events and/or behavior of prosecuted individual. Two extensive and restricted definitions can be deducted from reason. In extensive definition, reason means bringing reality (event or fact) or an action or legal reality, and in restricted definition, it is the style legal action or event is used for its proving (Dayani, 2006:4). In lawful tongue, instead of reason word, in particular, words of adequate evidence and faith are used (Ebne Manzour, 1995, word section). Based on what is mentioned, problems of comprehensive definition and barrier of reason are determined on which different definitions are presented by writers. Some lawyers, in terms of traditional definition of a reason, defined it as proving of practical existence in accepted styles by law or each style that allows existence proving or lack of committed act or accuracy or inaccuracy of a case. Others criticized these traditional definitions and believed that these definitions should be completed because a reason includes existence of an action, assignment of it to an individual and usually his intention in commitment of an action (Sadeghi, 2004:385). For this cause, the reason is imagined in a widespread concept as set of practical principles for crime detection or nature of wanted individual. Therefore, as summation and in comprehensive definition, reason could be defined in criminal affairs, as the reason is each legal tool or method that is used for (crime detection), crime incidence proving, and its assignment to accuser or negation of accusation (and exoneration of him) (Tadaion, 2009:62). Definition of securing of evidence Securing means achieving and providing lexically. Evidence also is argument, proof and anything used for proving something. Therefore, the purpose of securing of evidence is acquirement of argument for proving a case (Zebhi, 2014:1). The concept of judge`s knowledge in securing of evidence Knowledge means certainty and confidence in jurisprudence term that is called also normal science (Ja`fari Langrudi, 1988:563). In judicial discussions, two kinds of knowledge pop into the mind: 1) knowledge that expresses principles and regulations and discusses about tasks and duties of individuals, 2) judge`s knowledge about contested subject and disputed reality. The knowledge may be resolved for judge as consequence of experiences, study of sciences etc. or a set of inferences or through study of case and descriptions and evidence of parties. In scientific discussions of knowledge, second concept of knowledge is considered. Principally, evidence of substantiation of claims is manifestation and phenomena of normal science. In jurisprudence principles, the purpose of science is certainty against suspicion and its reality is not something more than development of fact completely. Certainty is carnal mode in which a case is determined for an individual. Against suspicion is doubt. In other words, certainty is a dogmatic case in which no probability of fault and misdeed is considered (Beihaghi, 1980:106). However, in jurisprudence and law, achieving to this knowledge without any unknown is not the purpose but it is normal science in law that is used as a tool for settlement and litigation of claims. Judge`s knowledge is the area of high differences and debates among Imami jurists although well-known jurists claimed consensus on judge`s knowledge. Jurists are divided into four general categories about rationality and validity of judge`s knowledge: absolute majority argues for the permissibility including related subject to right of god or right of people as well as knowledge is achieved in incumbency time of judicial authority or before and there isn`t any difference that judge is absolute priest or not. The group that believes lack of absolute permissibility of judge`s knowledge and expresses that methods of substantiation of claims are confession of proof and oath. Other group believes that judge`s knowledge has authority in right of god but not in right of people. Another group, unlike mentioned explanation, expresses that judge`s knowledge is proof in right of people but it isn`t proof in right of god (Ahani, 2002:38). Reasons of permit of judge`s verdict with personal knowledge Well-known Shi`a jurists believe that judge`s knowledge is valid in both right of god and right of people absolutely. Even some of lawyers also believe that judge`s knowledge is proof wherever it is achieved, there isn`t difference the claim is about public rights (right of god) or private rights (right of people) or it is

3 604 M.Kazemigolvardi and M.Soleimantabar civil claim or criminal one (Langroudi, 2006:143). Reasons of verdict permit with judge`s knowledge are explained below as one of evidence of substantiation of claims: 1) Verses: tellers to validity of judge`s knowledge cited some verses of holy Quran that they are considered as base for permit of judge`s knowledge and action is determined based on knowledge as well awareness based on realization of justice. These verses includes: [As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah. In addition, Allah is exalted in Might and Wise (Al Ma`idah sura, verse 38). Moreover, part 42 of Al Ma`idah sura: And if you judge, judge between them with justice. Indeed, Allah loves those who act justly. 2) The [unmarried] woman or [unmarried] man found guilty of sexual intercourse - lash each one of them with a hundred lashes, and do not be taken by pity for them in the religion of Allah, if you should believe in Allah and the Last Day. In addition, let a group of the believers witness their punishment (verse 2 of An-Nur sura). 3) Indeed, Allah commands you to render trusts to whom they are due and when you judge between people to judge with justice. Excellent is that which Allah instructs you. Indeed, Allah is ever Hearing and seeing (verse 58 of Al- Nasa sura). 4) Indeed, Allah orders justice and good conduct and giving to relatives and forbids immorality and bad conduct and oppression. He admonishes you that perhaps you will be reminded (Al-Nahl, verse 90). 5) Say, [O Muhammad], "My Lord has ordered justice and that you maintain yourselves [in worship of Him] at every place [or time] of prostration, and invoke Him, sincere to Him in religion." Just as He originated you, you will return [to life] (Al-Araf, verse 29). 6) We have already sent Our messengers with clear evidences and sent down with them the Scripture and the balance that the people may maintain [their affairs] in justice, And We sent down iron, wherein is great military might and benefits for the people, and so that Allah may make evident those who support Him and His messengers unseen. Indeed, Allah is Powerful and Exalted in Might (Al-Hadid, verse 25). In mentioned verses, judge is addressed and according to these verses, in the case of knowledge acquisition for judge, he must rule inevitably and he is forced obviously to justice verdict and most of jurists cited to them for validity of judge`s knowledge. Some of these verses like verse 38 of Al-Ma`idah sura and verse 2 of Al-Nur sura expressed crimes and then determined punishment of perpetrators of the crimes. If it is proved for the judge that these actions are perpetrated by an area of certain individuals, he is obliged to execute punishment and for proving of such crimes, one of the best ways is knowledge and certainty of the judge. These two verses related to divine Hudud. It seems that mentioned verdict could be performed only for Hudud, and in other cases, it could not be cited. However, other verses passed a sentence generally and obliged the judge to reconcile based on justice even with his knowledge. Traditions: most of traditions resorted by Shia jurists about personal knowledge of judge are explained below. A) Prince of faithful (Imam Ali): when Arabi quarreled with holy prophet about price of camel purchased by holy prophet and they paid the price, they assigned judgment to a man of Kureysh. The man wanted witness from holy prophet. Then, holy prophet called Imam Ali and said judge between the claimant and me. Imam Ali, after some questions and repetition of claim of the man, unsheathed the sword and decollated the man. Holy prophet asked the reason. They said we confirmed you in order and forbiddance of god, how we could not confirm in the claim of camel price? And my reason was denial of you by Arabi. Holy prophet confirmed judgment of Imam Ali that was based on his knowledge (Horameli, 1980:274). In this tradition, Imam Ali`s knowledge was based on normal science not precognition or leadership knowledge. It seems that the cause of Arabi murder was his apostasy not just his improper claim since Imam Ali, with special way that they applied, murdered him after denial of holy prophet. B) Attestation of Khazim Ebne Sabet in horse purchaseof holy prophet that saler denied dealing Khazimah arrived and testified to holy prophet while he was not present in dealing. Holy prophet asked him to what thing you testified. He said certainty to correctness of your statements. In this tradition, Khazimah just knew accuracy of holy prophet`s statements without observer of what was happened (Horameli, 1980:278). Ma`anunah tradition is valid from documentary area because it was confirmed by

4 Reasons of Judge`s Knowledge 605 excellency Hor Ameli and not taint entered to it but it seems that is weak in the respect of implication i.e. permit of judgment based on knowledge. However, jurists used the tradition for permit of judge`s knowledge since in the tradition, Khazimah informed of holy prophet`s claim and he was certain that holy prophet said correctly. Then, he cited to his knowledge and testified to holy prophet but the story did not relate to judgment and it related to testimony. The subject confirmed a matter that witness should inform of witnessed albeit his knowledge acquired from certainty to claim truth so this tradition is by way of testimony not jurisdiction. C) Imam Ali`s story about armor of Talha that was in the hand of Abdullah Ghefl Altamimi and they claimed it was taken as booty in Basra by them, this subject was judged by Sharih. Sharih wanted witness from Imam Ali. Imam Ali said when Sharih informed of correctness of their claim that is Imam o Muslims, he could sentenced and there isn`t need to demand witness (Kalini, 1990:386). This tradition was cited by many Imami jurists and could be trusted from document. In the tradition, Imam Ali wanted to inform Sharih that when you are aware of correctness of my claim and you can sentence in the interest of me, why demand bringing witness, evidence, and they blamed him while it was just outside of the case and demanding witness was based on principles without any problem. But as he knew certainly that Imam Ali do not lie and their claim was fixed and there is no need to demand witness and he could sentence by citation to his knowledge. From these traditions, we can understand until there is knowledge, in addition to prove permit of judgment based on knowledge, other reasons are not required and claim should be determined by the same knowledge. Agreement of jurists: the most important reason of tellers of judge`s knowledge is the claim of agreement of some Imami jurists. Seyed Morteza expressed in Entesar book that correctly, Imam and rulers could judge with their knowledge in all laws without exception and there is no difference that judge`s knowledge is achieved in his course or before (AlMousavi AlBaghdadi, 1936:237). They expressed about opposition of Ebne Jonaid and the criticism that agreement is not acquired with his opposition that Imami agreement is prior to the idea of Ebne Jonaid in this case and his opposition is like obligation to verdict and Ijtihad. Sheikh Tusi believes that punishment mandating with obligation to judge`s knowledge was definite except special punishments of god for followers and even there are individuals among our jurists that have same idea in divine laws. He added that if judge is protected from fault, he can sentence based on his personal knowledge. He expressed in Al-Nahayah said that when Imam observed fornication of an individual or drinking alcohol, it is obligatory for him to mandate punishment and do not wait for rising witness or confession. However, there is no power for other individuals and they need rising evidence or actor confessed even they observed scene of the crime (Altousi, Bita, 257). He continues that murder, theft and other laws related to Muslims including punishment and Tazir, Imam could not mandate punishment as soon as he observed them except related owner demanded it. It is hypothesized for Imam to mandate it and if he inform of occurrence of crime, there is no need to wait for bringing evidence or confession of guilty (Altousi, Bita, 267). Ebne Edris declared about judge`s knowledge that judge`s verdict based on his knowledge is permitted absolutely in right of people not right of god. Mohaghegh Heli wrote in Almokhtasar book that it is obligatory for Imam to judge in right of god and people with his knowledge but for anyone except him, there are two words for execution of action in right of people and god (Mohaghegh Heli, 1981:257). He also mentioned in Sharai Al-Islam that Imam could judge with his knowledge absolutely and other individuals could judge based on their knowledge in rights of people and sentenced but there are two words in rights of god and word that is more accurate is that he judged in both of them based on his knowledge. Moreover, without any witness, it is allowed not to verdict that no one observed his verdict (Mohaghegh Heli, Bi Ta, 271). Al Shahid Al Aval said in Al-Lumah that if judge learned individual and aware of justice, he will sentence with his knowledge and if he does not aware of disputed rights, he will demand witness from claimant (Al Shahid AL Aval, 1985:80). Moreover, he mentioned in Hudud book that judge posed punishment with his knowledge. Moreover, no difference is between punishment in right of people or Tazir except in right of people, it is occurred after their demand (Al Shahid Al Aval, 1985:237). Mohaghegh Sabzevari said in Kafayah Al Ahkam about jurisdiction that Imam verdict absolutely based on his knowledge and in other individuals, it is more populate that permit of verdict is based on knowledge absolutely. Sayed Ali Tabatabaei said about authority of knowledge of non-innocent

5 606 M.Kazemigolvardi and M.Soleimantabar individual that there are two general views about this subject. More populate one like innocent case respected possibility and permit and of course, most of recent jurists agreed upon the idea in addition to Shia sources like Sarih Entesar & Khalaf & Aghnieh, Nahjolhagh and Zaher Saraer indicated Imami agreement on this case and this agreement is our reason and certain cause (Tabatabei Esfahani, Bi ta, 479). Mohammad Al Hasan Najafi (Saheb Javaher) said that among our followers, there is no difference for a subject that Imam could verdict based on his knowledge absolutely in right of god and right of people. In Shia source like Entesar & Ghanieh & Izah & Nahj Al Hagh etc., the agreement is emphasized and the reason is uncontested (Najafi, 1985:86). He added that except Imam, all judges could judge based on their knowledge in rights of people and in rights of god, jurists are two kinds that the best word is jurists` permit and verdict based on knowledge in right of god and in Shia source of Entesar & Ghaniah & Mahaki Khalaf & Nahjolhagh & Saraer, thi subject is emphasized (Najafi, 1985:92). Imam Khomeini said in Tahrir Al Vasilah that judge is allowed to judge based on his knowledge without witness, confession and swear in rights of people and rights of god. Moreover, it is not permitted to judge based on cases like if witness is opposing to his knowledge or individual that swears is considered a liar by him. Yes, it is allowed not to judge if witness is not observed by him and he does not reach to certainty (Khomeini, 2011, problem 7). Based on consensus of opinions of jurists, it should be said that all Imami jurists agreed about action of innocent Imam based on his knowledge except Ebne Jonaid and knolwdege of guess and estimation is argued for invalidity of judge`s knowledge. It means that immunity from error and mistake is considered as a condition and limitation for judge in judgment place based on his knowledge and this condition is incompatible with absolute claim of agreement on authority of judge`s knowledge. Of course, this problem does not exist for innocent Imam and agreement is accepted. However, for non-innocent individual, belief to authority of judge`s knowledge is difficult so indication of agreement of jurists as obvious reason for validity of judge`s knowledge is not concise and disputable and it could not be absolute reason. But it seems that it could be cited beside other reasons of proving of judge`s knowledge. Reasons of absence of permit of rule with personal knowledge Some jurists do not permit judgment based on personal knowledge of judge that some of them are mentioned below. 1) There is a tradition from Hisham Ibn Hakam from Imam Jafar Sadigh: Holy prophet said I judge only based on testimony of witnesses and swear among you and some of you could express his reasons better. Then, if someone annoyed his Islamic brother without reliance to these reasons, he will provide a piece of fire for himself. Opposite individuals of judge`s knowledge, based on this tradition, said that holy prophet wanted to count reasons of substantiation of claim and considered them only with testimony of witnesses and swear. Therefore, what is certain is that other reasons especially confession and judge`s knowledge removed from reasons and could not verdict with citation to it. It should be noted that the difficulty of the argument is that such understanding of tradition is true when it is proved that current limit in the tradition is real limit. For description, it should be said that limit has two kinds of real and additive. In real limit, what is sentenced dedicates to mentioned cases and do not include other cases. However, in additive limit, there is possibility of generalization of cases other than expressed cases to all cases except what is limited and because of different reasons; verdict is also dedicated to non-limit case. When we could say that limit of tradition is true that we could prove there is no form of evidence for acceptable reasons of substantiation of a claim and such claim is null and failed. Based on the claim, even confession should not be acceptable while in some cases of confession, it is considered as best evidence. Therefore, it could be say that in cases where judge`s knowledge is determined as reasons of proving of crime and/or principally, no ways of crime proving are counted in law, judge is allowed to refer to his knowledge. However, if reasons of crime proving are mentioned in law with condition of limit and judge`s knowledge is not quantified reasons, in such crime, judge could not refer to his knowledge (Golduzian, 2005, 382). 2) Second tradition is from Imam Ali that they said judge`s verdict should be based on three reasons, testimony of witnesses, decisive swear and past conduct of immaculate. In this tradition, there is no name of confession and judge`s knowledge and other reasons. However, it should be noted that at first, no limit is argued from mentioned tradition because there is not particles of

6 Reasons of Judge`s Knowledge 607 limit in it. Secondly, among reasons, there is no name of confession and no learned individual said that positive confession is not a claim. Thirdly, with attention to presented tradition about reasons of judgment with knowledge, if judge informs of something usually, he will verdict based on his knowledge. Then, this tradition could not be a reason for lack of allowance of judge`s knowledge. 3) Third tradition is from holy prophet that they said about Molaeneh if I could, I would stone to death the woman without witness. Believers to lack of allowance of judge`s knowledge obliged to this tradition and said holy prophet, in spite of knowledge acquirement with stoning to death, since they could not stoning without witness and with citation to his knowledge, then they stoned to death. For this tradition, it should be noted that at first, the tradition is not cited by Imami learned individual; of course, it is achieved by people so its validity is weak. Secondly, with attention to this sentence of no witness, we do not have reason that includes judge`s knowledge but evidence indicated that something other than knowledge is considered that maybe doubt and suspicion with unusual ways of knowledge. Thirdly, the tradition does not indicate a subject that they have knowledge because of stoning and it only shows that holy prophet do not verdict without existence of valid evidence with unusual ways. However, since evidence is popular and recognizable reasons for those people and they accustomed to it further, then majesty only focused on witness. Maybe, it seems that only in this crime, reasons of proving are evidence and this is not a cause for lack of allowance of other reasons like judge`s knowledge. Features of judge`s knowledge By considering and studying internal laws, it is concluded that our legislator recognizes judge`s knowledge as one of reasons of proving a crime in approved laws. In addition, in some cases, it is predicted for proving a subject like criminal affairs, article 27 is about Islamic punishment in 1962 that expressed one of ways of murder proving was judge`s knowledge. Moreover, articles 105, 120 and 199 of Islamic punishment laws in 1991 indicated judge`s knowledge as a reason for substantiation of crime. In Islamic punishment law of 2013, in fifth chapter of fifth section of the first book, subject of judge`s knowledge is considered generally. Then, authority of judge`s knowledge is in substantiation of accepted claims and judge`s knowledge has some features in the place of substantiation of claims: Adherence to spiritual reasons system Legal reasons system is in front of spiritual reasons system that was current in Western Europe and execution of this system in trials, limited freedom of judge in evaluation of reasons and application of them in substantiation of crime (Ashouri, 2004:232). Some lawyers opposed with execution of legal system in trials and wanted to establish spiritual reasons system. By accepting this system, it is allowed to judge to consider presented reasons and ruled in case of moral satisfaction about accuracy or inaccuracy of them with reality. It means that presented reasons in the system are valid with proving value if they lead to moral satisfaction of judge unless they are not valid. By studying Iranian laws, we understand that legal reasons system is not accepted by legislator and in codification of laws, moral satisfaction and spiritual reasons are followed and except some special crimes (fornication, combat, drinking alcohol and false accusation of adultery) that legal system is followed for them, spiritual reasons are considered in other criminal crimes. On the other hand, it cannot be accepted rationally and logically that legislator has complete retrogressive return to previous era that was current in middle ages. By observing opinions of popular jurists, it is found that they believe in authority of judge`s knowledge in right of people and right of god about reasons of substantiation of claim. In addition, since after Islamic revolution, legislator attended to judicial resources and jurists` opinions in the time of codification of laws, it can be said that in codified law after revolution, limited condition of reasons are not mentioned ant spiritual reasons system is considered particularly. According to codification of articles about limits and indication of judge`s knowledge as one of reasons of substantiation of crimes (pederasty, clitorism, hudud theft and murder), a point is found that legislator attended much to spiritual reasons system and moral satisfaction of judge in codification of criminal laws after revolution. Moreover, legislator, with codification of article 105 of Islamic punishment law of 1991 wanted to oppose limit system of reasons, enter moral satisfaction system of judge or spiritual reasons to

7 608 M.Kazemigolvardi and M.Soleimantabar its legislation system, and believe in no difference between right of god and right of people. In addition, in both cases, recognize judge`s knowledge and spiritual satisfaction in the time of verdict. By accepting spiritual reasons system, we concluded that reasons of substantiation of crime have Tariqyat (satisfaction of one law by means partly of methods in violation of or inconsistent with another law) aspect not topicality in this system. In addition, all reasons are only a way to reality and judge determined their accuracy by consideration and finally his acquired knowledge. Typicality of judge`s knowledge By considering spiritual reasons system, we concluded that all reasons have Tariqyat not typicality and they are only a way for recognition of a fact. Moreover, they have no authority in nature and the reason of its typicality is that lawyer explained the knowledge. It should be noted that judge does not acquire certain and definite knowledge through evidence or confession but he uses doubts. It means that information that judge acquires from evidence can be denied. It may be possible that both falsehood of testimony and confession are proved and their validity is removed. However, judge should consider acquired doubt of confession and testimony in the place of ignorance of subjects based on law and considers it as recognition but the unveiling, which is regulated by sentence of legislator, is not absolute like reasons that are certain knowledge and can be wrong because of probabilities (Madani, 1997:16). Such reasons are evidence if they create moral satisfaction for judge. It means that judge considers by rising of reasons and validates their accuracy. If moral satisfaction of a crime is made for judge with the action, then, it will be said that all of reasons are validated and judge verdict based on them. Therefore, if judge acquires knowledge by raining of reasons or evidence, the knowledge will be valid and has absolute unveiling and validity. Therefore, confession, swear and testimony do not have legal proving power in themselves and judge should not observe them without challenge. Particularly, in validity of testimony of witnesses, judge is only individual that responsible for evaluation of accuracy and validity of testimony because he has only authority to reject testimony of affected individuals or they witness with bad faith (Goldouzian, 2005:351). It is allowed to judge to research for recognition of any fact about each of raised reasons and does not confine to mentioned reasons in the law. In Islamic law, acquisition of reason is not forbidden by judge. He can use current evidence of claim, acquired knowledge is evidence, and he should verdict and adjudicate based on them (Shambiati, 1995:192). It should be noted that although legislator mentions and counts reasons of crime proving in some of legal articles, but it cannot be said that legislator imposed himself on judge by using appearance of such articles and obliged judge to follow his opinion and legislator follows spiritual reasons system by accepting knowledge as one of reasons of substantiation of claims. Therefore, reasons (confession, testimony of witnesses and swear) do not have proving value in nature and they will have validity and authority when they are not conflict with moral satisfaction of a judge. Then, we say judge`s knowledge has typicality because of absolute unveiling on reality of affairs and proving value but mentioned reasons have imperfect unveiling and reversible. In fact, legislator gives them proving value. Independence of judge`s knowledge from other reasons of substantiation of claims Since the purpose of Islamic legislator from codification of different criminal laws is achievement of reality and recognition of crime and he tries to prove a crime with use of different tools quickly and punishes guilty, here, judge`s knowledge, as an independent and complete reason, is considered by our Islamic legislator. It is valid and evidence in itself and supply legislator`s opinion in this field. As it was mentioned earlier, other reasons of substantiation of claim other than judge`s knowledge are not valid because each of them do not recognize reality of affairs to place as reasons of substantiation of claim. Such reasons are valid only when they bring moral satisfaction for judge and do not conflict with judge`s knowledge and his moral satisfaction. However, judge`s knowledge is not the same and to realize judge`s knowledge as reason and its consideration, it is not need to present reasons in a court before in order to knowledge is realized by judge. Then, if a judge does not have access to confession, witness and swear, but believes in conviction of guilty based on evidence available in document, he should verdict based on his internal belief and knowledge and behavior and he cannot acquit guilty because of lack of raising confession, witness, swear

8 Reasons of Judge`s Knowledge 609 and lack of mentioned reasons. It is obvious that moral satisfaction of a judge is achieved when the judge assures that issued verdict is not conflict with reality (Mahmoudi Janaki, 1997:85). Judge`s knowledge with citation of other ways of acquisition of evidence Judge`s knowledge has two place in criminal laws. First, it is independent and absolute reason that can be considered as evidence of a crime without any other reasons. Second, if it is available with other legal reasons (confession, testimony of witness and swear), it will be prior to all of them and top of mentioned reasons. Here, the purpose of judge`s knowledge is not inferred knowledge from judicial rules, report of justice department archivists, viewpoints of experts and skilled individuals. However, it is achieved knowledge from legal reasons where judicial and legal rules and other usual ways can bring knowledge for a judge. Then, legal reasons including confession, witness and swear can baring assurance for a judge primarily. In this discussion, we indicate other place of judge`s knowledge that is in the view of legislator, judge`s knowledge can be inferred from other reasons of a crime. When we mentioned judge`s knowledge as one of reasons of substantiation of a claim, our purpose is what is acquired from following ways: 1) Usual ways and tools that bring knowledge typically and others achieve moral satisfaction, confidence and knowledge with the same way and they are convinced to accuracy, occurrence or lack of occurrence of acquisitive action by guilty. Some of them are judicial rules, reports and news of justice department archivists and viewpoints of experts. 2) Ways of legal reasons like confession of guilty, testimony of witnesses and swear that is declared by one of parties or their family. Then, judge`s knowledge can be achieved both by consideration of evidence and legal rules and further research and consideration of raised reasons in the claim that lead to moral satisfaction. When judge`s knowledge is achieved based on raised reasons in the claim, we say judge`s knowledge inferred from them and it is considered as the reason of proving of a crime and when judge`s knowledge is achieved through judicial rules in the case, it can be regarded as independent reason for judge`s verdict. These two modes are in cases in which reasons are not counted or they are counted and judge`s knowledge is one of them. Then, it can be concluded that Iranian legislator recognizes judge`s knowledge as an independent reason in substantiation of claims and judges can cite their knowledge as independent reason in their verdict. Since judge knowledge is not achieved only through reasons of substantiation of a crime (confession, witness and swear) and judicial rules, evidence and situation of a crime are the cases that judge can reach moral satisfaction by further research about them. The acquired knowledge for judge is an independent reason from other reasons of substantiation of claims and can be considered as evidence alone. In cases where in addition to judge`s knowledge as a reason of substantiation of claims, there are confession, testimony and swear, here, there is possibility to use all reasons and their citation in verdict for judge. However, if contents of three reasons (confession, testimony and swear) are contrary to judge`s knowledge, based on article 212 of Islamic punishment law of 2014, if judge`s knowledge is opposite to other legal reasons, in the case that knowledge is evidence, those reasons are not valid for a judge. In addition, he rules based on his knowledge and rejection causes of other reasons. If knowledge is not achieved by a judge, legal reasons are valid and verdict is issued based on them. As it was mentioned before, judge`s knowledge can be inferred from confession and witness. Here, available reasons for substantiating a claim in a case are confession and witness or one of them but knowledge that is achieved from judicial rules and evidence and other usual ways and it is not available, if witness or confession leads to moral satisfaction or judge`s knowledge, it can be considered as base of issued verdict. In addition, judge of the case can rule based on them although legislator believes typicality aspect for mentioned reasons but their typicality aspect is remained if it does not oppose knowledge. Finally, it should be noted that when judge`s knowledge is achieved through judicial rules and usual ways like expert ideas, that are mentioned in note of article 211 of Islamic punishment law figuratively, then confession, witness and swear that are legal reasons can create such knowledge. Therefore, there is no doubt that judge`s knowledge can be called as one of reasons of substantiating of a claim and accepted its authority.

9 610 M.Kazemigolvardi and M.Soleimantabar Conclusion Writer has some reasons for cause of judge`s verdict preference to other ways of acquisition of evidence that they are mentioned below. Of course, it should be noted that the purpose from judge is a conscientious and peaceable ruler that his criterion and basis is acquisition of law. 1) Judge is near to law and goodness because of dominance on case and awareness of sent reasons, based on his experiences as well as to fact by collection of all comments of witnesses and parties of a claim. 2) Some reasons may not satisfy lawyer legally or maybe there are some evidence about lack of adequacy of reasons. Then, truth is determined for a judge based on other rules. 3) Reason is a complicated and sometime dual word and concept that we can manipulate evidence and reasons based on what is purpose like pouring blood of victim on the clothes of an individual that is not real murderer or enticement of witnesses and/or documentation etc. However, conscientious and peaceable judge can achieve fact and goodness by other ways that are not common very much. References Holy Quran Ashouri, Mohammad et al, human rights and concepts of equality, justice and fairness, Gerayesh publication, Tehran, Ahani, Batoul, validity of judge`s knowledge in ruling, jurisdiction and law of family, spring of 2002, number 25 )pages 36-54). Ebne Mazoor, Mohammad ebne Mokram, Lesan Al arab, Dar Alhya Taras Alarabi, Tarikh Alarabi institution, Tadayon, Abbas, extension of reason in Iran and France criminal trial, legal magazine of justice, number 67, autumn of Ja`fari Langroudi, Mohammad Jafar, Islamic science encyclopedia, Tehran, first publication, Ja`fari Langroudi, Mohammad, magazine of science and political science of Tehran University, number 21, March Hor Ameli, Sheikh Mohammad ben Hasan, Vasael Shia, Maktabal Islamiah, version 27, judicial book, tradition 3, Khomeini, Rohollah, Tahrir Alvasilah, Qom, Ismailian publication, version 2, Dayani, Abdorasul, reasons of substantiation of claim in civil and criminal affairs, Tadris publication, first publication, Shambiati, Houshang, special criminal law, first version, Vistar publication, second publication, winter of Shahid Aval, Alma Al Damashghyah, Payiz publication, Sadeghi, Mohammad Hadi, coordination of guilty and witness in covering crimes, judicial and legal magazine of justice department, number 39, summer of Tabatabei Isfahani, Syed Mohammad, Ryath Almasael Fi Bayan Ahkam Shar`a Bedalayel, Kabirr publication, version 1. Altousi, Mohammad ebne Hasan, Alnahayah Fi Mojarad Fiqh and Alfatva, Beirout, Darolketab Alarabi publication, second version. Amid, Hasan, Amid Persian dictionary, Amir Kabir publication, Tehran, Katouzian, Naser, proving and reason of proving, Mizan publication, first version, fourth publication, Kalini, Mohammad ebne Yaghoubm Alkafi, Tehran: Islamic Almyah publication, version 7, Al Mohaqaq Heli, Akbar Sheikh Jafar, Almokhtasar Al Nafei Fi Fiq elimami, Qom, Islamic lesson publication, Al Mohaqaq Heli, Najmodin, Sharay Islam Fi Masael Hala & Haram, Tehran University publication, version 1. Mahmoudi, Janaki, Firooz, Tariqyat or typicality of reasons of substantiation of claim in Egypt and Iaran criminal laws, dissertation of master degree, college of Islamic thoughts and law, May, 1997, page 85. Madani, Sayed Jalaladin, reasons of substantiating a claim, publication of Ganje Danesh, 1997, fourth publication. Almousavi Albaghdadi, Seyed Morteza, Alentesar Shia, Tehran University, Alnajafi, Sheikh Mohammad Hasan, Javaher Alkalam Fi Sharh Sharaye Islam, DarolKotob Islamiah, version 4.