Criminal law and criminology
Hossein Gholami; GHodratollah KHosroshahi; hossein javadi
Abstract
State crimes are committed by the state against human rights. Although this kind of crime has a long history,the etiology of these crimes still lacks explanatory theories. State crimes One of the white-collar crimes that is the violation of fundamental human rights by the governmental organization. The ...
Read More
State crimes are committed by the state against human rights. Although this kind of crime has a long history,the etiology of these crimes still lacks explanatory theories. State crimes One of the white-collar crimes that is the violation of fundamental human rights by the governmental organization. The characteristics of these crimes, such as being organizational, complex, and related to the power structure, are such that they cannot be explained in just one dimension. Thus, there is no choice but to use different theories to explain the state crimes. To achieve this goal, we can use some mainstream criminology theories, such as opportunity.The opportunity theory is a commonly-used approach that is employed to analyze etiology of state crimes. Using the abovementioned theory, the present research aimed to describe the quality of committing state crimes in terms of such elements as incentives,objectives,impedimenta as well as limitations. Research findings suggest that states would commit state crimes in order to preserve and maintain their political power, achieve ideological purposes, access to economical advantages as well as governing people. Holding power, lack of supervision and liability, obscurity, lack of responsibility, public trust, lack of laws supporting citizens’ rights, disinclination of citizens for participation in public affairs and so forth are taken into account as backgrounds which strongly assist the government to achieve its objectives. However, the aforementioned backgrounds accompanied with such elements as illiteracy, civil indifference, fear of the government, as well as presence of such limitations as existing a potent civil society, non-state organizations for defending civil rights, liberal media, and international mechanisms will lead to committing state crimes. The opportunity theory through the use of above-mentioned etiology suggests that improving structures which give the government incentive, increasing interior and exterior controls which minimize state’s chances to commit crimes as well as strengthening either domestic or international limitations would help to prevent governments from committing state crimes. The proposed theory focuses primarily on structural factors affecting the state crime. These factors include the political structure (with totalitarian and authoritarian rule), the ideology of the ruling class (supremacy arising from nationality, religion, class) and the economic structure (command or Free Market Economy) that provide the basis for state crimes by creating the necessary incentives to commit them, such as community control, ideological control, economic interests and control. In the next stage, in the absence of barriers and control, the government will be in an Institutional anomie and will not refrain from taking any action to achieve its goals. If there are control mechanisms, the government uses neutralization and labeling techniques to overcome them. Ultimately, conditions such as ignorance, civic indifference, non-participation, fear of government, and obedience will contribute to the state crimes. When the government achieves its goals by committing state crimes, and there is no reaction against it, it will commit these crimes again through behavioral reinforcement. Repeating state crimes over and over again means that the government has learned to commit crimes against citizens and has made it as a behavioral trait for itself.Although the opportunity theory can explain the occurrence of state crimes to some extent, but due to its shortcomings, it is unable to explain the various aspects of these crimes, so we need unified theories. So In the late 1960s, criminology became so entrenched in extreme truth-seeking, theoretical crisis, and the endless competition of theories that it required a dramatic transformation to survive. To solve this problem, criminologists, distancing themselves from modern paradigms, have opened their arms to perspectives that seek the future of criminology in the reconciliation of theories without theoretical competition and extreme simplification. Thus, integrative criminology was born. One of the strategies through which integrative criminology seeks to make criminological theories more profitable is the combination of criminological theories, which is referred to as an integrated theory approach. Despite some criticism, this approach was gradually adopted, and integrated theories were born one after another. However, like other criminological theories, most of the integrated theories in the field of street crime were made, and the integrated analysis of different types of white-collar crimes was ignored. One of the white-collar crimes that suffers from the lack of integrated theory is the violation of fundamental human rights by the governmental organization, which is called state crimes. The characteristics of these crimes, such as being organizational, complex, and related to the power structure, are such that they cannot be explained in just one dimension. Thus, there is no choice but to integrate different theories to explain the state crimes. To achieve this goal, we can use some mainstream criminology theories, such as opportunity, labeling, control theories, neutralization and anomie techniques, as well as critical theories, like Marxist and Structural criminology.
Code of Criminal Procedure
Anahita Seifi; jabrail nozohour
Abstract
Economic crimes are one of the major challenges of societies at the national and international levels and have devastating effects on the economic order and security of countries. The security of some economic crimes based on jurisprudential views and hostile discourse towards macroeconomic criminals ...
Read More
Economic crimes are one of the major challenges of societies at the national and international levels and have devastating effects on the economic order and security of countries. The security of some economic crimes based on jurisprudential views and hostile discourse towards macroeconomic criminals and the globalization of some new forms of these crimes have led to the use of security-oriented strategies in the process of prosecuting economic crimes in Iran. This study intends to analyze the effects of security-oriented approaches and the challenges they face in teaching economic crimes in the Iranian legal system through descriptive and analytical methods. The findings of this study show that the country's judicial system does not have the necessary coherence in this regard. Applying a security-oriented approach in responding to the perpetrators of these crimes has led to its confrontation with the global model of fair trial and deviation from its standards and has limited the right of defendants to defend themselves. Extreme securityism is corrupt in the long run, regardless of human rights standards. It requires the existence of a coherent and differential criminal policy, especially in the procedure of these crimes in the organization and the trial, and attention to professionalism in all its dimensions.Economic crimes are one of the major challenges of societies at the national and international levels and have devastating effects on the economic order and security of countries. The security of some economic crimes based on jurisprudential views and hostile discourse towards macroeconomic criminals and the globalization of some new forms of these crimes have led to the use of security-oriented strategies in the process of prosecuting economic crimes in Iran. This study intends to analyze the effects of security-oriented approaches and the challenges they face in teaching economic crimes in the Iranian legal system through descriptive and analytical methods. The findings of this study show that the country's judicial system does not have the necessary coherence in this regard. Applying a security-oriented approach in responding to the perpetrators of these crimes has led to its confrontation with the global model of fair trial and deviation from its standards and has limited the right of defendants to defend themselves. Extreme securityism is corrupt in the long run, regardless of human rights standards. It requires the existence of a coherent and differential criminal policy, especially in the procedure of these crimes in the organization and the trial, and attention to professionalism in all its dimensions.Economic crimes are one of the major challenges of societies at the national and international levels and have devastating effects on the economic order and security of countries. The security of some economic crimes based on jurisprudential views and hostile discourse towards macroeconomic criminals and the globalization of some new forms of these crimes have led to the use of security-oriented strategies in the process of prosecuting economic crimes in Iran. This study intends to analyze the effects of security-oriented approaches and the challenges they face in teaching economic crimes in the Iranian legal system through descriptive and analytical methods. The findings of this study show that the country's judicial system does not have the necessary coherence in this regard. Applying a security-oriented approach in responding to the perpetrators of these crimes has led to its confrontation with the global model of fair trial and deviation from its standards and has limited the right of defendants to defend themselves. Extreme securityism is corrupt in the long run, regardless of human rights standards. It requires the existence of a coherent and differential criminal policy, especially in the procedure of these crimes in the organization and the trial, and attention to professionalism in all its dimensions.Economic crimes are one of the major challenges of societies at the national and international levels and have devastating effects on the economic order and security of countries. The security of some economic crimes based on jurisprudential views and hostile discourse towards macroeconomic criminals and the globalization of some new forms of these crimes have led to the use of security-oriented strategies in the process of prosecuting economic crimes in Iran. This study intends to analyze the effects of security-oriented approaches and the challenges they face in teaching economic crimes in the Iranian legal system through descriptive and analytical methods. The findings of this study show that the country's judicial system does not have the necessary coherence in this regard. Applying a security-oriented approach in responding to the perpetrators of these crimes has led to its confrontation with the global model of fair trial and deviation from its standards and has limited the right of defendants to defend themselves. Extreme securityism is corrupt in the long run, regardless of human rights standards. It requires the existence of a coherent and differential criminal policy, especially in the procedure of these crimes in the organization and the trial, and attention to professionalism in all its dimensions.
Criminal Sociology
Amir Khademi; seyyed mohammad javad Sadati; Abdolreza Javan jafari
Abstract
During the deliberations of the Islamic Consultative Assembly regarding the Bill of Hudud and Qisas and the possibility of handing over its approval to the Judicial Commission, Mr. Mohammad Fazel said: "Is it really necessary for us to send this bill to the Commission?" How many years will it be implemented ...
Read More
During the deliberations of the Islamic Consultative Assembly regarding the Bill of Hudud and Qisas and the possibility of handing over its approval to the Judicial Commission, Mr. Mohammad Fazel said: "Is it really necessary for us to send this bill to the Commission?" How many years will it be implemented on a trial basis? There is also this Shariah doubt that God's decrees can be put to the test and see for how many years whether God's decree is applicable or not? Later, we will vote that God's decree is applicable and extend it or say that it is not applicable."About four decades later, at the opposite point of the aforementioned statements, during the negotiations of the Islamic Consultative Assembly for the approval of the law to reduce the punishment of imprisonment, on November 14, 2018, the 380th meeting; Mr. Haji Deligani said: "It seems that there was no opportunity to know how the opinions of experts, honorable judges, and sociologists regarding the effects of this resolution on crime issues in society can have an effect and cause it to decrease or increase. From that side, there was no opportunity to get the lawyers & jurists opinion."What said were two different images of the criminal discourse regarding crimes that existed several decades apart from each other. The first image, which uses the expression "God's commandments" regarding the law of "Hudud and Qisas and its regulations", reflects the sinfully discourse. Sinfully discourse presents a holy image of crime by making a deep connection between crime and sin and portrays crime as a conflict with God's will. On the other hand, the second image reveals the weakening of the sinfully discourse and a significant trend towards the technical discourse regarding the crime. In the technical discourse, the sacred and meta-experiential image of crime becomes a material image, during which delinquency is considered as a behavior in violation of the existing social order and a symbol of disrespect for society's values. The criminalization process takes place in the technical discourse with an emphasis on scientific foundations. The second image, which deals with criminological issues and reducing or increasing crime, is a symbol of technical discourse.During this transformation, the readings of punishment also changed significantly. In the sinfully discourse, punishment was considered as a reaction for the restoration of the divine will. But in the technical discourse, punishment is portrayed as a bureaucratic response to the delinquent behavior of the criminal. The transition to technical discourse caused Sharia punishments in the law, such as Hudud, to be significantly transformed and replaced by other punishments in some cases. from now on, committing many crimes in the eyes of the society, violation of sacred values and punishment is not considered a symbol of God's will and therefore the social acceptability of Sharia punishments such as "stoning" has decreased significantly.Also, in the cases of committing a crime, the criminal is no longer recognized as a violator of divine values, so that a strict criminal policy can be used in his case. Rather, in today's era, a criminal is often recognized as a person who should be subjected to corrective and rehabilitative measures. How to decipher the transition from the sinfully discourse to the technical discourse regarding the crime? How can we evaluate the reproduction of sinfully discourse in the first decade of the revolution and its transition to technical discourse in the next four decades? How can we analyze the association of the society with the sinfully discourse in the first decade of the Islamic revolution and its turning away from the said discourse after a few decades?To answer the above questions, we can discuss and investigate from different aspects. Among them, relying on philosophical and technical theories in the field of criminal law, he found the reason for the significant transition from the sinfully discourse to the technical discourse. For example, in the technical field of criminal law, by emphasizing new criminological findings, it can be revealed that the thinking of legal elites, especially in the field of criminological theories, has a significant impact on the evolution of laws and criminal discourse. in such a way that, the elites' depiction of the criminal as a patient deserving of treatment and their emphasis on the need to apply effective punishments in his reformation caused a significant tendency towards technical discourse. Also, by taking the path of philosophical studies, the effect of deterrence-based theories can be considered effective in the aforementioned transition, or it can be done by revealing the role of scientific foundations and reflecting it in law. Despite the valuableness of the aforementioned analyses, the upcoming research will examine the answers to the above questions with an emphasis on the perception of "cognitive society" from two perspectives of power and society. In this regard, from the perspective of power in the framework of sociological perceptions, we will analyze the phenomenon of sinfully discourse and the transition from it to technical discourse from the perspective of transformation in "social control methods" and the theory of "ideology and the state's ideological apparatuses". did Also, from the perspective of the society in the perceptive framework of the sociology of culture, we explain the phenomenon of the mentioned discourse and the significant trend towards the technical discourse by relying on the changes in the "ritual and social dimension of religion".Thus, in the first step, this research will explain the reason for the reproduction of the sinfully discourse regarding crimes. In this case, it becomes clear that from the point of view of power, the effort to promote the cultural system considered by the religious traditionalist power and the beginning of the process of de-bureaucracy in the first decade of the revolution caused the appearance of sinfully discourse regarding crimes. From the society's point of view, the prominent role of religion in the social life made the sinfully discourse towards crimes to be evident. In the next step, the bureaucratization of power and the reduction of the social dimension of religious values caused a significant trend towards technical discourse.Finally, it should be pointed out that dealing with the issue of the transition from the sinfully discourse to the technical discourse regarding crimes from a sociological point of view, never means ignoring other effective factors in the transition of the said discourse, such as the thinking of legal elites, reflection Scientific bases in the laws or the impact of international documents are not binding
Code of Criminal Procedure
Morteza Rasteh; Nasrin Mehra; Amir Ghofrankhah
Abstract
Protection of witnesses and victims is one of the most important issues related to criminal proceedings, which has been emphasized in global and regional documents and has come to the fore through human rights judicial authorities. Lack of proper support for the witness or the victim may impair the correct ...
Read More
Protection of witnesses and victims is one of the most important issues related to criminal proceedings, which has been emphasized in global and regional documents and has come to the fore through human rights judicial authorities. Lack of proper support for the witness or the victim may impair the correct execution of justice; Because the courts will have no choice but to close the case or acquit the accused if the necessary documents are not collected. In the meantime, the judicial authorities are required to consider and protect the defense rights of the accused. Therefore, neither the interests of witnesses and victims nor the rights of the accused can be considered as an absolute principle; But in any situation there is room for mutual interests to be balanced. Therefore, creating this balance as well as adopting correct and path-breaking measures in this regard is one of the challenging issues in criminal proceedings that must be taken into consideration by the criminal justice system. One of the most important measures that may be taken to create this balance and according to the interests of justice is to limit the publicity of all or part of the proceedings. However, due to the fact that publicity of the hearing has been emphasized in human rights documents as a basic principle and one of the defense rights of the accused, therefore, only if a person appears as a witness in a public court session or is a victim of a crime, is, it cannot be recognized as an acceptable justification for the necessity of implementing protective measures; Rather, standing as a witness and testifying in a public session, or revealing the victim's identity through the presence of the public and the media, should be considered a serious threat to the witness and the victim, and the court by presenting acceptable evidence confirm the existence of such threats verify and prove, and as long as other protective measures can be applied, the court should not resort to holding hearings in private.Considering that nowadays the human rights documents and the rights recognized in the constitution of the governments are increasingly mixed together and have caused the formation of a single and comprehensive model related to the principles of procedure, identifying the criteria and the policy It is necessary to accept the international human rights system and model these standards in criminal laws and domestic judicial procedure. Therefore, the purpose of the issue, is to untangle the mechanisms of the international human rights system and conceivable measures to establish a balance between the protection of witnesses or victims and the accused's right to a public hearing, as well as to strengthen the components and criteria of its guarantee in national courts and in It is the light of the findings of the law of the present age.The current research, which was carried out with the descriptive-analytical method and the use of library and documentary sources, will seek to answer the question that, What is the most important programs and measures imaginable to support witnesses and victims in order to create the balance with the accused's right to a public hearing?Regarding the background of the research as well as the innovation aspect of this article, it should be mentioned that although due to the basic importance of protecting witnesses and victims, there have been researches about it, but so far the study of the contents of the cases submitted to the human rights judicial authorities in order to identify the procedures and actions of these authorities regarding the creation of a balance between the protection of witnesses or victims and the right of the accused to a public trial has not been carried out in the present; In particular, a special attitude to the interpretations of the Human Rights Committee as the only authority interpreting the rights contained in the International Covenant on Civil and Political Rights, as well as the rulings issued by the European Court and the Inter-American Court as the executive arm of the European Convention on Human Rights and the American Convention on Human Rights, which have so far been In relation to this topic, it has been less discussed, it is one of the special features and innovations of the present article.The findings of the research show that in the international human rights system, despite the fact that the protection of witnesses and victims has not been specified as one of the exceptions to the public hearing, it is clear from the provisions of the documents and procedures of the human rights authorities, It is possible that despite special circumstances, the protection of witnesses and victims may be included in the framework of "interests of justice" and considered as one of the legal examples of closed hearings. But in order to avoid the unreasonable and widespread application of this exception, such an action is only possible "to the extent of necessity and in compliance with the principle of Proportion".Based on this, it has been concluded that creating a balance between the interests of the witness and the victim (protection of dignity and security) and the rights of the accused (publicity of the hearings) requires that restrictive measures in this regard are precisely defined and absolutely necessary. be In addition, if a minimal restrictive measure is sufficient to establish a balance, only the same measure should be carried out, and restricting the public holding of hearings should be considered as the last measure in relation to the protection of witnesses and victims. On this basis, concealing the identity of witnesses; Taking necessary measures for the physical protection of witnesses and victims, such as the presence of a person as a bodyguard; Removing the accused from the court during the hearing of witness and victim statements; Making statements in a shielded manner that prevents physical identification of witnesses and victims, such as using curtains, walls, or any other type of cover; Listening to the statements of witnesses and victims through the use of communication technologies such as video conferencing and similar measures is one of the most common and practical measures and mechanisms related to the protection of witnesses and victims, which should be carried out by the judicial authority. Therefore, as long as these protective measures are applicable, the court should not ignore the accused's rights to a fair trial and resort to making the hearings closed.
General and exclusive criminal law
Ali Kakoo juybari; Rajab Goldoust juybari; Mahdi Esmaeli
Abstract
VThe importance of murder is understandable not only in terms of the amount of punishment provided for it, but also due to the determination of criminal liability in this type of crime which has been controversial. Therefore, it is possible to pay attention and impose punishment on the perpetrator of ...
Read More
VThe importance of murder is understandable not only in terms of the amount of punishment provided for it, but also due to the determination of criminal liability in this type of crime which has been controversial. Therefore, it is possible to pay attention and impose punishment on the perpetrator of a crime if he has certain conditions and characteristics; This means that for the realization of criminal responsibility, the mere occurrence of material behavior is not enough; Rather, criminal behavior must be caused by a conventional, free and self-aware emotional state, and the issue becomes more controversial when the killer's motive for committing murder is to obtain pleasure and spiritual, physical and sexual satisfaction; If this acquisition of mental, physical and sexual pleasure leads to murder, along with harassment and violence, we will face a deviant criminal type that has another mental disorder, abuse or sadism; Serial killers, who usually kill their victims by torture and offend, can be considered as examples of sadistic killers, and in Iran, these kinds of murders are referred to as Sadistic Murder, which were no separate title in criminal law and In Iran, it can be considered under the rule of retribution, or else, it will be dealt with by the rules of punishment and atonement. Furthermore, it is noteworthy that one shall not ignore the pre-sadistic or metasadistic conditions or the conditions that expose people to become a sadist. Moreover, we shall underline the effects of metasadism in many crimes, including murder, factors such as heredity, individual and social failures, domestic violence in Childhood, social environment and such factors may lead a person to become sadistic. The study of the criminal type of such perpetrators who have criminal capacity and dangerous state will be of great help in the field of causes and treatment of this phenomenon; This requires that Other killers are annoying (sadistic killers) be studied from various dimensions so that we can formulate a disciplined system of criminal responsibility for them. A sadistic killer is neither mentally healthy nor without liability. The mental illness of a sadistic killer is mainly under the category of neurosis (neuros), in such a way that the person has full connection with external realities and his perception and will is in a situation that makes him responsible for his actions in terms of psychiatry and criminal law. If his/her illness reaches the level of psychosis and the person is cut off from the real world, the defense of madness can be applied. However, there are significant differences of opinion in the definition of insanity, the separation of total mental disorder from relative mental disorder, and the reference for the diagnosis of insanity. Historical research shows that the treatment of mental criminals by human societies has not been the same since the beginning of time and the reactions have changed according to the progress of human knowledge, but today in most countries of the world, regarding people with mental disorders, differential policy - Support is adopted. These legal protections for these people have caused some people to pretend to be crazy in order to get rid of the burden of criminal responsibility, so it is very important to determine the exact criteria in this matter. Iran's criminal law has had a protective approach towards these people from the beginning until now. In the latest legal developments in Iran's criminal law, Article 149 of the Islamic Penal Code approved in 1392 tried to resolve the flaws in Article 51 of the Islamic Penal Code approved in 1370, but the approach of this law towards people with relative mental disorders such as sadistic mental disorders is not clear. Certainly, mental disorders have a wide spectrum, some of which make a person irresponsible and some make a person relatively responsible. According to the criminal law of the Islamic Republic of Iran, a sadistic murderer has never been able to use the defense of her madness or mental illness and has been sentenced to the maximum legal punishment. In the present contribution, we consider whether the sadistic killer who committed the murder had any disorder or not and whether madness be invoked if a sadistic murderer is mentally disturbed? Sadism in murder is also examined from a medical and criminal law perspective.
Criminal Sociology
fatemeh hosseini; Marzieh Mohamadi
Abstract
Juvenile delinquent" refers to a person who is legally capable of committing a crime and has the minimum age of criminal responsibility. Juvenile delinquency is a growing concern that requires therapeutic and supportive intervention models rather than a punitive approach The rehabilitation and correction ...
Read More
Juvenile delinquent" refers to a person who is legally capable of committing a crime and has the minimum age of criminal responsibility. Juvenile delinquency is a growing concern that requires therapeutic and supportive intervention models rather than a punitive approach The rehabilitation and correction of juvenile delinquents requires individual and community-oriented correctional laws with high executive guarantee, trained people and restorative proceedings. Otherwise, not only will the repetition of the crime be prevented, but it will help to speed up the return of this teenager to the justice system. The present research, by examining the lived experience of the delinquents juveniles in the judicial process, tried to highlight the issues of juveniles and the way the judicial system behaves in dealing with them. Investigating the lived experience of teenagers in the judicial process and the pathology of juvenile proceedings. Because it is important from a scientific and professional point of view for the field of social work. Due to the existence of various laws regarding the intervention of social workers in the process of juvenile delinquent proceedings, it is necessary for social workers to know the status of juvenile proceedings, and this research is effective in helping the society and the judicial system in order to prevent recidivism and empowering juvenile delinquents.The qualitative research method is thematic analysis technique. Thematic analysis was used to describe the trial experience of delinquent teenagers, because thematic analysis is more related to the lived experience and daily life than other existing strategies. This analysis identifies the meaning of human experiences about a phenomenon as described by the participants in the research and provides the possibility to gain a deeper understanding of people's experiences about that phenomenon. Data collection was done through in-depth and unstructured interviews. In order to obtain rich information, the researcher helped each teenager to express their narratives in a calm and safe environment and to tell about their experiences in the process of proceedings from arrest to sentencing. In this research, 16 teenagers were interviewed and the interview process continued until the answers were duplicated. In fact, theoretical saturation was achieved. The method of analyzing these findings is analytical and interpretive. Finally, the aggregation of these findings was analyzed. Data analysis was done in three main steps of coding: open coding, selective coding and axial coding. Findings: In this research, three main categories of inefficiency of the judicial system, helplessness of teenagers and lack of social justice advocacy were found. The ineffectiveness of the judicial system means the lack of institutions such as skilled and committed legal counsel, social workers, and children's police, the lack of social and legal support for teenagers in economic problems related to bail and ransom and getting a lawyer even to help teenagers and their families. In obtaining relevant information, he leads to the confusion of the teenager and the delay of proceedings. The innovation of this research is that the pathology of the judicial process of juveniles in Iran has been investigated from a psycho-social point of view and from the point of view of the stakeholders, i.e. juveniles who are under the law. Conclusion: According to the examination of the experience of teenagers, they are so worried after the trial that they almost always feel anxious. They are afraid that the same thing will happen again and if they fight, they will go to court again. Due to the lack of familiarity with legal issues, teenagers think that as soon as they enter the court, it will be considered a bad record for them and their career and social future will be in danger, they become anxious. This type of proceedings not only does not prevent the teenager from committing the crime again, but also turns him into a helpless person who is prone to all kinds of injuries. Instead of improving its effectiveness as a crime prevention system, this system has degraded and degraded the youth's self-esteem and labeling them, ultimately leading to isolation, social rejection and helplessness of the youth. In fact, a system that aims to reduce recidivism actually puts the teenager on the path to re-offending.
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.
