The Role of the Judge's Knowledge in Proving the Crime with the Approach of Comparative Jurisprudence with an Emphasis on the Law of Afghanistan

Abstract

The knowledge of the judge as one of the evidences to prove the claim and the ways of establishing the crime is the Islamic jurisprudence and law, and since the main origin of the relevant laws of Afghanistan is jurisprudence, it was necessary that the basis and scope of the knowledge of the judge and the quality of citing and issuing judgments according to It should be examined from a jurisprudential and legal point of view. The purpose of this research is to analyze jurisprudential data based on comparative jurisprudence and the procedures of the Afghan legal system in the field of validity of the knowledge of the judge by adopting the analytical descriptive research method. The research findings show that the famous opinion of Imamiyya jurists has become famous among jurists by citing rational and narrative evidence (verses, narrations, and consensus) on the acceptance of the judge's knowledge in proving the crime. Of course, the infallible Imam (a.s.) can rule according to his knowledge, but there is a difference of opinion among the jurists about the non-infallible judge. Some of the jurists, who may be famous, think that the judge in all crimes, including the rights of God, such as Adultery, and theft, and the rights of the slave, such as retribution and Qazf, can act according to their knowledge.  The famous opinion of late Sunni jurists is that the judge's knowledge is not valid regarding the right of God and the right of the servant. However, in the expressions of some modern and contemporary Sunni scholars as well as the position of the Afghan legal system, the validity of the judge's knowledge is used in the cases in which he gained knowledge. Because; Compared to other proofs, this science is stronger than the science obtained through other methods of proof.