Abstract

Discretionary is Chastisement and Punishment that its type and amount has not been determined in the law and Fiqh (Islamic law), and is at the discretion of ruler, or in more correct word, is at the discretion of the judge; Since, according to Article 4 of the Iranian constitution, the laws should be originated from Fiqh, arranged discretionary in Islamic Penal Code and Fiqh is same in many cases. This article tries to investigate discretionary characteristics in the Penal Code and Fiqh; and answer to this problem that, prescribed discretionary in law and Fiqh, to what extent are aligned and have similar dimensions to aforementioned characteristics.

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