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 ...
Read More
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.
Islamic jurisprudence
hassan pourlotfollah; Mahdi Movahedi Moheb; Khosro Momeni; ahmad mortazi
Abstract
The main question is whether the agreement to change the organ subjects to qisas to a similar organ is legitimate and causes the right of qisas to be forfeited concerning the original organ? There has not been a comprehensive research research in this regard with an exception of a brief outline of some ...
Read More
The main question is whether the agreement to change the organ subjects to qisas to a similar organ is legitimate and causes the right of qisas to be forfeited concerning the original organ? There has not been a comprehensive research research in this regard with an exception of a brief outline of some examples in the codified criminal law and jurisprudence texts. This article attempts to re-examine the issue by presenting new analysis while critically studying the existing views. According to the famous Imami view, this agreement is not permissible and the right of qisas remains with the termination of the agreed organ. Therefore, it is necessary to pay the dues of the similar organs that have been cut off.The reasons of the famous view are as follows: the non-realization of the originality, the irreconcilability of the blood issue, the principle of non-substitution, the non-inclusion of the rule of body integrity, and the inclusion of the obligation of qisas in the original place. Indeed, due to the invalidity of the said agreement, according to the famous view, the left hand exchange (i.e. the fall of revenge from the right hand) has not been realized and on the other hand, the same exchange (left hand) has also been cut off.According to the second view, agreeing to amputate a similar limb instead of the main limb causes the right of qisas to fall and turn it into ransom. In such cases, on the one hand, the victim is entitled to receive diya for his right hand, and on the other, due to the amputation of criminal's left hand, he is required to pay diya. In fact, agreeing on left-handed qisas instead of right-handed qisas is like forgiving the victim of right-handed qisas in exchange for left-handed qisas. Of course, it should be maintained that victim with left-handed who agreed on qisas has abandoned right-handed qisas, not that he has turned it into diya since if his goal was to receive the diya for his right hand, he could demand it from the criminal, and there was no need for the agreed qisas of the left hand.According to the third point of view, in practice, there is an exchange between the place of qisas and its similar organ, and the similar organ replaces the retaliated organ, which will result in the fall of the victim's right of qisas. The evidence of the third view are the implied amnesty of the agreement, the possibility of a change in the organ's qisas and reference to the rules of harmlessness and exclusion.The present article, with a descriptive and analytical method, while critically examining the jurisprudential foundations of the mentioned viewpoints and giving a reasoned preference to the promise of deserving punishment as a result of the agreed qisas of the similar organ, believes that such agreements and compromises can be based on. He considered it to be correct and legitimate and considered its provisions to be enforceable. In this regard, while studying the sayings and proofs of the jurists, by presenting proofs beyond the documents that have been presented for the third point of view, this opinion has been strengthened, the proofs of the illegitimacy of the agreement on the same organ's reparations are also disputed.The pieces evidence of the selected point of view are as follows:Analyzing the issue based on the aspect of the right of qisasThe basic rule in law is that the authority is in the hands of the right holder, and transferability, revocation, compromise, pardon, and forgiveness are among its accessories. So, first of all, since revenge is a special right of the victim, then it must be possible to judge the legitimacy of such an agreement. Secondly, considering the fact that the tortfeasor, even for free, can waive his right, then as a priority, he will be able to waive his right of qisas by agreeing to the qisas of the similar organ. Thirdly, due to the personal nature of the right to qisas in crimes against the soul, it is not possible to execute qisas without demanding compensation from the victim. Therefore, ruling to invalidate the agreement and re-implementation of qisas is contrary to this Muslim rule.Analyzing the problem in terms of substantive similarityBased on numerous pieces of evidence, there is a balance between the interests and functions of similar organs; which can be cited in order to prove the legitimacy of the aforementioned agreement.Applying the verse of qisas; From the honorable verse "Write down against them, that the soul is in the soul and the eye is in the eye and..." (Ma'idah/45), which explains the law of execution of qisas due to the necessity of similarity, it can be used that the paired body parts that are opposite each other and the ruling of qisas. They are exported, regardless of the right and left, they are considered similar to each other.Habib Sajestani's narration from Imam Baqir (a.s.): "Regarding the rights of Muslims, where a person has a hand, the hand should be placed against the hand..."Homogenization of similar organs in the verse; The chapters on limb amputation are used in the works of jurists, whose view of similar limbs is almost likeness and ruling on punishment of left hand in case of lack of right hand, based on this basis.From the point of view of custom, the organs of the pair are considered similar, and characteristics such as right and left are not considered by custom.Problem analysis based on the philosophy of qisas; The main purpose of the law is to legislate qisas punishment, deterrence, providing security and life of the society and healing the wounded feelings of the victim and the society. It seems that both of the aforementioned goals can be achieved with the agreement of similar organs.Arrange rational purpose for agreement.First: It is possible that rational and valuable effects and benefits will be obtained from the said agreement. Secondly: It is possible that the motive of benevolence is also desired in the qisas of the similar organ.Requirement of No Harm and The Dar'e RulesThe verdict of non- qisas ultimately leads to the qisas of two life organs for one victim. Therefore, referring to the harmless rule, the fall of the right of qisas against the victim is explained.Also, the rule of Dar'e, also includes qisas, and with the qisas of a similar organ, the legitimacy of re-implementation of qisas is questioned, the fall of the right of qisas seems more appropriate.Legal evidencesAlthough the legislature of Iran has not explicitly commented on this matter, according to the articles 347, 361, 363 and 365 of the Islamic Penal Code, conciliation and agreeability of the right of qisas, in each of the stages of prosecution, proceedings and execution, has clearly accepted and considered the right of qisas to fall and the hypothesis of this article is confirmed.
Islamic jurisprudence
ali farsimadan; Enayat Sharifi
Abstract
Bait al-Mal denotes a collection of public property at Islamic governor’s disposal that should be used for the social welfares of Muslims. In Islamic jurisprudence, Bait al-Mal is used for pursuing the goals of Islam. Inasmuch as it is for the benefits of Muslims, paying Diya (blood money) is one ...
Read More
Bait al-Mal denotes a collection of public property at Islamic governor’s disposal that should be used for the social welfares of Muslims. In Islamic jurisprudence, Bait al-Mal is used for pursuing the goals of Islam. Inasmuch as it is for the benefits of Muslims, paying Diya (blood money) is one of the ways of spending Bait al-Mal. Thus, employing a descriptive and analytical method, the present study attempts to address the special cases in which Diya shall be paid from Bait al-Mal. Furthermore, the article will target the following questions:Who shall be responsible to pay Diya if the judge's mistake brings about death or disability?Is Aqilah (paternal kinship group of the criminal) responsible for murder?Who is responsible for paying Diya if the murderer does not have Aqilah or their Aqilah is not financially capable?If the claimant and the defendant do not have evidence, who is responsible for the victim's Diya?Who is responsible for the victim's Diya if they are killed in a crowd?Who is responsible for the victim's Diya if the murderer escapes or dies?Who is responsible for the victim's Diya if the murderer is unidentified?Who is responsible for the victim's Diya If Laqit commits the crime?Who is responsible for the victim's Diya if they are killed in fitnah (sedition)?What is the verdict if two persons confess to a murder?What is Ha’ishat and what is its decree?What is the sentence for the crimes of a blind person? Shall they be executed?What is the jurisprudential decree of defense against the lunatic’s assault? The authors have endeavored to examine paying Diya in special cases through surveying jurisprudential documents and Hadith. For Bait al-Mal is responsible for paying Diya. Considering the review of the related literature, it should be mentioned that due to the significance of this issue, Islamic science scholars have composed research papers on its jurisprudential and legal dimensions. Nevertheless, on the contrary to other studies, the present article refrains from referring to repeated points and sets out to prompt new instances. Furthermore, it attempts to conceptualize such terms as Aqilah, Diya and Bait al-Mal, and analyze and make reference to various jurisprudential sources. In addition, another distinguishing feature of this research is not repeating the findings of other scholars, and focusing on the words of early and late jurists and emphasizing their jurisprudential approach and testifying their instances. What is more, the present study seeks to express the favorable opinion after examining and analyzing disparate narratives. Therefore, the article sets out to address the jurisprudential recognition of paying Diya from Bait al-Mal in specific cases and mentions 13 cases collected from the expressions of the jurists.In so doing, this article will target issues in which Diya shall be paid from Bait al-Mal: when the judge makes a mistake; when the murderer does not have Aqilah; when the claimant and the defendant do not have evidence; when one is killed in a crowd; when the murder and manslaughter criminal escapes; when the murderer is unidentified; when Laqit commits the crime; when one is killed in sedition defying rebels; when two persons confess to a murder; Ha’ishat (injury and murder during the fear of day and night); when one is killed in the military camp; when one commits a murder as an act defense against the lunatic’s assault; and when the murder is committed by a blind person.Although waging war against the one who has rebelled against the Imam and the Islamic ruler is mandatory, the Diya of the victim in sedition and war with rebels is the responsibility of Bait al-Mal. Furthermore, when two people have confessed to a murder, and if there is no collusion, the verdict of execution will be suspended and the Diya of the victim will be paid from Bait al-Mal. The Diya in Ha’ishat (which signifies fear that appears at night and during the day and causes injury or murder in such a way that it does not become clear who has killed or injured someone else) is the responsibility of Bait al-Mal. Blind people are not executed for their crime and Diya will be the responsibility of their Aqilah. If they do not have Aqilah, Diya is paid from their property; otherwise, the imam will pay the Diya. If one is killed in militia or a military barracks, their Diya is paid from Bait al-Mal. If a madman intends to kill a sane person and the sane person kills him in defense of his life or his own belongings, Diya will be the responsibility of their Aqilah, and if there is no Aqilah, Diyeh is paid from Bait al-Mal.Therefore, the purpose of producing Bait al-Mal is to safeguard the Muslims’ welfare in such a manner that according to the principle "the blood of a Muslim killed shall not be wasted", preserving the blood of Muslims and preventing it from being wasted is one of the economic objectives of Bait al-Mal.
Islamic jurisprudence
javad sarkhosh; Hannane Nosrat kharazmi
Abstract
In Islamic jurisprudence, one of the conditions for the Qisas sentence is the equality of criminal and victim in religion. In Imami jurisprudence, there are two general views in this field; Most Imami jurists believe in the non-retaliation of Muslims for murder of Dhimma. Therefore, according to the ...
Read More
In Islamic jurisprudence, one of the conditions for the Qisas sentence is the equality of criminal and victim in religion. In Imami jurisprudence, there are two general views in this field; Most Imami jurists believe in the non-retaliation of Muslims for murder of Dhimma. Therefore, according to the well-known opinion of the Imami jurists, a Muslim will not be sentenced to Qisas for murder of Dhimma, Unless he/she has a habit of doing this, in which case he/she will be sentenced to death. In contrast to this view, there is the theory of Sheikh Sadouq, who believes that the Qisas sentence for Muslims owing to murder of Dhimma is permissible. Proponents of each point of view have cited evidence such as the book (Qur'an), Sunnah (tradition ), and consensus to prove their theory, but the reason that has provoked the most discussion and disagreement in this field is the existence of conflicting narrations on this issue. In this article, while dealing with other evidences, the document and content of conflicting narrations have been examined and finally the second category of narrations which was also approved by Sheikh Sadouq has been accepted
Islamic jurisprudence
mohamad jafar sadegh pour
Abstract
In Article (568) and Clause (a) of Article (569) of the Islamic criminal Code, the legislator has expressed the amount of Diyah for fracture. Assigning two different articles to this issue has caused the perception that these two articles have a different subject. This view is strengthened by the ...
Read More
In Article (568) and Clause (a) of Article (569) of the Islamic criminal Code, the legislator has expressed the amount of Diyah for fracture. Assigning two different articles to this issue has caused the perception that these two articles have a different subject. This view is strengthened by the legislator's statement to assign the rule of Article (568) to "fracture of a limb" and Article (569) to "fracture of a bone of a limb". The difference or sameness of the subject of these two regulations, along with the gaps and challenges that are facing them, makes it necessary to analyze their structure and basis. This necessity is more felt by referring to the conflicting views of the legal authorities of the judiciary in this regard and the existence of fundamental problems in the Shariah and jurisprudence foundations of these two articles. Understanding this importance, the writer, with a descriptive-analytical method, while strengthening the divergence of the above-mentioned articles, suggests the removal of Article (568) due to its content or lack of Shari'i validity. It is also mentioned in this essay that paragraph (a) of article (569) needs to be fundamentally amended and in this regard, three suggestions for the amendment of this article have been mentioned.
Islamic jurisprudence
Ali Mohamadian
Abstract
According to the common theory in Imami jurisprudence, the end of the work of a thief who repeatedly commits theft will be nothing but murder and deprivation of life. This view, although in Article 278 of the Penal Code (adopted in 1392), has also been recognized by the well-known jurists; However, the ...
Read More
According to the common theory in Imami jurisprudence, the end of the work of a thief who repeatedly commits theft will be nothing but murder and deprivation of life. This view, although in Article 278 of the Penal Code (adopted in 1392), has also been recognized by the well-known jurists; However, the opposition of some late jurists has led to the fact that it is against the necessary precaution in temperature. It is noteworthy that this issue has been the subject of controversy in the jurisprudence of public religions and has led to the formation of various arguments and the emergence of various sayings in the issue; Therefore, in addition to Imami jurisprudence, the present article has also studied the views of Sunni religions in jurisprudence. It is clear that the necessity of discussion in terms of its relevance to human life is undeniable. The results of the research show that the famous Mukhtar of the Imami jurists is not without controversy and the promise to take the life of the thief, in addition to the lack of sufficient evidence to prove it, has caused a stagnation in temperature and is contrary to the meaning of the rule of unity; In addition, the prerequisites for the initial rules of the chapter require the deviation from such a view.
