Document Type : Research Paper
Authors
1 Department of Law, University of Tehran, Farabi Campus, Tehran, Iran
2 Assistant Professor of Law, Hakim Sabzevari University
Abstract
Objective: After the Islamic Revolution in Iran, the legislator, based on Article 4 of the Constitution, criminalized the consumption and use of intoxicants. This criminalization is evident in the 1982 Penal Code (Hudud and Qisas), the 1991 Islamic Penal Code, and the 2013 Islamic Penal Code. The most recent criminalization in 2013 introduces innovations. Several articles have been written in defense, critique, and analysis of these innovations. However, given the lack of a comprehensive and jurisprudential analysis based on legal reasoning, a new and thorough examination is necessary. Therefore, the objective of this paper is to provide a comprehensive and cohesive analysis by presenting and reviewing the opinions of Islamic jurists, with a focus on referring to the existing Hadiths and adhering to the jurisprudential foundations.
Methodology: This article, based on a library-based research method and a descriptive-analytical approach, first examines the legislative history of intoxicants’ use and consumption. Then, the definition of intoxicants, both linguistically and legally, is analyzed. Afterward, the opinions of Islamic jurists regarding the conditions for the application of the Hadd punishment for intoxicants and the ruling on repeated consumption, in light of the Hadiths and reports, are explored. The paper concludes with suggestions and effective solutions.
Findings: In 2013, the legislator of the Islamic Republic of Iran introduced two innovations concerning intoxicants in their legislation: one regarding the definition of the subject for Hadd punishment—shifting from "drinking" to "consumption"—and the other concerning the punishment for repeated consumption, changing the death penalty from the third to the fourth offense. Based on jurisprudential principles, it seems that both changes are incorrect. The first change neglects caution in an area where caution is necessary, while the second represents caution where it is unnecessary.
Innovation:
Attention to the distinction between “obligatory rulings” (taklifi) and “situational rulings” (wadh'i), and the understanding that there is no necessary correlation between the two. In this case, it should be analyzed that the prohibition of intoxicants does not necessarily require the application of Hadd punishment. Not every prohibition of consumption entails the necessity of a punishment.
The legislator’s innovation in changing the subject of Hadd punishment for intoxicants leads to an expansion of criminalization in the context of Hudud laws, which does not align with the apparent content of Hadiths, thus violating the Fourth Article of the Constitution.
Conclusion: The shift in criminal behavior from "drinking" to "any form of consumption," along with the imposition of the same Hadd punishment, leads to an expansion of criminalization and an increase in the number of individuals subject to this provision. Especially since the term "intoxicant" applies to narcotic substances, this could result in the application of Hadd punishment to those consuming substances such as hashish and heroin, even leading to the death penalty in the fourth offense. However, upon reviewing the legal arguments and Hadiths on this subject, no strong evidence can be found to justify this. The established jurisprudential rulings do not support this expansion of criminalization. Therefore, it can be concluded that this change constitutes punishment without valid justification. Moreover, the increase in punishment for repeated consumption, after the Hadd punishment has already been applied for the same crime, is problematic. The vague wording in Article 136, which implies the death penalty for the fourth offense, lacks support in the Hadiths or valid jurisprudential opinions regarding the fourth offense, which historically supports the death penalty only for the third offense.
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