Islamic jurisprudence
حسین khodayar
Abstract
According to common jurisprudence punishments are based on a dichotomous system, they are either hadd or tazir. This dichotomy of punishment is not based on text even though there is no text about this. Rather, this is due to a kind of trap that jurists have obtained from the collection of texts in the ...
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According to common jurisprudence punishments are based on a dichotomous system, they are either hadd or tazir. This dichotomy of punishment is not based on text even though there is no text about this. Rather, this is due to a kind of trap that jurists have obtained from the collection of texts in the field of punishment. The dichotomy of the penal system has caused all the punishments mentioned in the hadiths to be added to the list of hudud or punishments based on common assumptions, regardless of whether or not they have been assigned limits or punishments. In this way, in many cases, the limit of punishment is determined without any textual evidence, only with common jurisprudential concepts and considering the characteristics of that punishment. This, in turn, has been the source of many disputes about the nature of punishments; however, naturally, the ideas of jurists about the characteristics of punishments are not the same in all cases. The emergence of punishments with the title of "prescriptive punishments", which, by assumption, have similarities to the limits and punishments, is a testimony to the differences caused by the differences in the presuppositions of the jurists about the types, nature and characteristics of punishments. On the other hand, the inclusion of ambiguous punishments, which are not defined in the texts, to the list of rules and punishments, has led the jurists to a dead end in some cases. Considering the punishments of deprivation of life, life imprisonment, amputation, shaving of the head and even fines as a hadd, without the fact that there is a limit to them in the hadiths, has in some cases made it difficult for the jurists to understand the nature of the causes of these punishments. This exclusionary and inferential idea, that in particular, the death punishments o, life imprisonment, and amputation of limbs are hududd in nature and are not used as punishment in any case, has caused contradictions in some cases. For example, in the hadiths, the punishment for the crime of apostasy is death although there is no hadd for this crime. The majority of jurists, based on the aforementioned premise, consider this punishment to be a had. In the meantime, a famous jurist such as Mohaghegh Hali clearly places the crime of apostasy among the crimes subject to tazir. Then this contradiction comes to surface, is it possible that a deterministic punishment such as death is taziri? Considering the use of hadd and tazir in the Holy Qur'an and hadiths, it shows that by taking into account the usage of hadd and tazir, and based on ijtihad and methodical inference, in contrast to the idea of "dichotomous punishment in Islam", the idea of "multiplicity of punishment in Islam" can be proposed, and thus, it is removed from the list of problems and prohibitions of the Islamic penal system.
saeid ghomashi; Omid Motaghi Ardakani
Abstract
Criminal behavior ,sometimes encountered by social reaction, can be investigated based on different paradigms. One of these paradigms that is less relevant is the behavioral paradigm. From this perspective, a number of human behaviors arise from the conditioning process based on the response stimulus ...
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Criminal behavior ,sometimes encountered by social reaction, can be investigated based on different paradigms. One of these paradigms that is less relevant is the behavioral paradigm. From this perspective, a number of human behaviors arise from the conditioning process based on the response stimulus relationship. The purpose of the research is to examine the beginning of criminal behavior and the efficiency components of punishment from the perspective of behavioral paradigm. The present research by descriptive-analytic method shows that the process of forming some criminal behaviors is based on the behavioral paradigm and the crime is based on the irrational will of the offender and is influenced by the conditioning of behavior. therefore, emphasizes that to deal with these crimes, it is necessary that the sanctions chosen are effective in silencing criminal behavior Conditioned; and tries to examine this objective by assessing the ability or inability to adapt the four objectives of "retribution", "incapacitation", "intimidation", and "rehabilitation and treatment" to the behavioral paradigm.
mohammad ali talebi ashtiani; Ahmad Bagheri
Abstract
From the basic and controversial issues of Ta'zir, the issue is the amount of ta'zir. An issue with two completely opposite approaches. In the first approach, some jurisprudents have expressed different opinions, sometimes incommensurable, about the amount of ta'zir, with the sole emphasis on the terms ...
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From the basic and controversial issues of Ta'zir, the issue is the amount of ta'zir. An issue with two completely opposite approaches. In the first approach, some jurisprudents have expressed different opinions, sometimes incommensurable, about the amount of ta'zir, with the sole emphasis on the terms of some narratives or following their previous jurisprudents, which makes it impossible to obtain a single theory. In the second approach, other jurists, according to other narratives, as well as the phrases of the narrations of the ta'zir, have given the theory, without specifying the amount for ta'zir, that the ta'zir is indeterminate and entirely in the hands of the Imam or the ruler, so as to determine the amount of expediency. In this paper, with full text in all jurisprudential books, all theories of early to contemporary jurisprudents are collected, categorized and criticized. By examining theories of the first approach and the implications for them, the second approach is due to the acceptance of the arguments mentioned, discretion and explanation.
Abdolmajid Soudmandi
Abstract
After half a century from the first provisions on air pollution in Iranian cities in an amendment to the Municipal Act in 1967 and on the basis of experiences gained from 22-year enforcement of the Prevention of Air Pollution Act of 1995, Iranian legislative and executive branches passed the Clean Air ...
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After half a century from the first provisions on air pollution in Iranian cities in an amendment to the Municipal Act in 1967 and on the basis of experiences gained from 22-year enforcement of the Prevention of Air Pollution Act of 1995, Iranian legislative and executive branches passed the Clean Air Act in 2017. Although this Act has some weaknesses, but its strengths, in particular improvement of criminal provisions and its innovations compared to the Prevention of Air Pollution Act, have created the hope that by enforcing it, the catastrophic situation of air pollution would be resolved. The most important improvements of criminal provisions in this Act are: 1. increasing criminal liability of juristic persons, 2. coherence of punishments, 3. anticipating modification of fines, 4. Increasing punishments. The most important innovations of it also are: 1. using the economic tools, 2. renovation of motor vehicles, 3. sampling and monitoring of pollutants by industrial units, 4. production and supply of renewable and clean energies, 5. increasing the green space of cities, 6. combat dust phenomenon, 7. granting the position of sheriff's officer to the protection unit of Department of Environment, and 8. providing specialized courts in the field of air pollution.
Afshin Abdollahi; Javad farazmehr
Abstract
Legislator in the note of Article 20 of the Islamic Penal Code except legal persons of public law to punish in cases where they exercise sovereignty. Nevertheless, determining the examples of these individuals in practice and that In what cases do these individuals exercise sovereignty, it's not easy. ...
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Legislator in the note of Article 20 of the Islamic Penal Code except legal persons of public law to punish in cases where they exercise sovereignty. Nevertheless, determining the examples of these individuals in practice and that In what cases do these individuals exercise sovereignty, it's not easy. In addition, there are some private entities which the nature of their actions is in the public service, however, they are not exempted from the punishments of Article 20 and their punishment may cause problems in practice. Another ambiguity is that the persons mentioned in the note, if In the direction of non-sovereignty, commit crimes, are there any penalties applicable to them? Given these ambiguities, this research distinguishes between actions of sovereignty Non-sovereignty and defines the causes of exempting legal persons of public law from punishment and investigates the impossibility of imposing any punishment in sovereign affairs. It seeks to highlight the types of legal persons of public law and the status of private professional systems such as some private individuals in charge of public services.
Alireza Taghipoor; Fatemeh Mottaghi
Abstract
Authority and freedom are two subjects always in contrast to each other. Governments strive to enhance their authorities to control people by emphasis on following the rules, yet people try to improve their freedom with different methods. When laws are considered unfair and employing legal ways do not ...
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Authority and freedom are two subjects always in contrast to each other. Governments strive to enhance their authorities to control people by emphasis on following the rules, yet people try to improve their freedom with different methods. When laws are considered unfair and employing legal ways do not lead to modify them, folks disobey them deliberately, consciously and non-violently by civil disobedience to show the necessity of modifying them. Although this act is kind of violation of law, its way to breaking the law differs from other usual offenders. Albeit, this is impossible to ignore their punishment. Civil disobedience originally distinguishes from revolution, rebellion, and armed disobedience based on acceptance of punishment from disobedient. Although, with regard to moral motivation of disobedience and his/her ideal aim based on establishment of justified law, their punishments are able to suspension or mitigation and in some circumstances are able to amnesty or remission.
Adel Sarikhani; Esmail Aghabababani
Volume 3, Issue 8 , October 2014, , Pages 9-32
Abstract
One of the issues raised in criminal law based on Islamic Jurisprudence is the justifiability or unjustifiability of Ta’Ziri execution. In spite of the fact that legislator does not provide Ta’Ziri execution in the categories of Article19 of the Penal Code , in practice some punishments ...
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One of the issues raised in criminal law based on Islamic Jurisprudence is the justifiability or unjustifiability of Ta’Ziri execution. In spite of the fact that legislator does not provide Ta’Ziri execution in the categories of Article19 of the Penal Code , in practice some punishments in other penal statutes, particularly in drug-related crimes, are intended to be compatible with Ta’ziri punishment. However, the principles and ideas of Islamic Jurisprudence do not acknowledge the Ta’Ziri execution. Considering the possible basis for the legitimacy of Ta’Ziri execution, the issue will be discussed according to the Islamic jurisprudence. This paper is to come to the conclusion that Ta’Ziri execution has not an acceptable documentary basis ،and the right to life cannot be ignored due to social interests.
Jafar Kusha; Hamid Gholami
Volume 2, Issue 7 , July 2014, , Pages 9-39
Abstract
AbstractEvery society reacts in certain ways to criminal acts such as murder. In thisessay, the reaction of Afghani legal system to the crime of murder andelements of murder will be examined. Firstly, through the introduction,different types of punishment prescribed in Afghani Criminal Act will beaddressed, ...
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AbstractEvery society reacts in certain ways to criminal acts such as murder. In thisessay, the reaction of Afghani legal system to the crime of murder andelements of murder will be examined. Firstly, through the introduction,different types of punishment prescribed in Afghani Criminal Act will beaddressed, as well as the issue of implementation or non-implementation ofQisas (religious punishment providing that murder’s blood must be shed)which has given rise to ambiguity in punishment of murder. Under theheading of Mens Rea in the first book of the Afghan Criminal Act, theconcepts of criminal intention and contingent intent have been recognized.Thus, crime of murder, accordingly, can be categorized into murder in theabsolute sense and presumed as a murder. In the first part, the punishmentfor the murder in the absolute sense and the impacts of exacerbatingcircumstances on that will be considered. The second part will be dedicatedto the analysis of the presumed murder. Finally, the consequential andcomplimentary punishments and civil liability arising out of the murder willbe briefly dealt with in the third part.
Amir Hossein Sahnzai
Volume 1, Issue 2 , January 2013, , Pages 15-40
Abstract
This paper wants to explain in detail the conception of hadith"Darolhad" and its very important consequences regarding the.Islamic criminal policy as a primary and secondary rule. No doubtthat cognition of a subject is very effective to understand it. Inother words, certifying subjects that include the ...
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This paper wants to explain in detail the conception of hadith"Darolhad" and its very important consequences regarding the.Islamic criminal policy as a primary and secondary rule. No doubtthat cognition of a subject is very effective to understand it. Inother words, certifying subjects that include the arbitration of mindabout other subjects will be clarified after stating the meanings andexplanations.This holy Hadith is textually imperative and since it ispractically famous, it is possible to compensate the sendingweakness by having the conception of hadith cOlmected to theIslam criminal policy.
