A Critical Revisiting the Concept of "Dichotomy of Punishment" in the Islamic Penal System in Light of the Application of Hadd and Tazir | ||
| فصلنامه پژوهش حقوق کیفری | ||
| Article 2, Volume 12, Issue 45, January 2024, Pages 45-79 PDF (1.09 M) | ||
| Document Type: Research Paper | ||
| DOI: 10.22054/jclr.2024.72233.2559 | ||
| Author | ||
| حسین khodayar* | ||
| Assistant Professor of Criminal Law and Criminology, Department of Jurisprudence and Fundamentals of Islamic Law, Faculty of Theology, Law and Islamic Studies, University of Sistan and Baluchestan, Zahedan, Iran | ||
| 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 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. | ||
| Keywords | ||
| Punishment; Hadd; Tazir; Islamic penal system; Dichotomy of punishment | ||
| References | ||
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Aliannejadi, Abulqasem. Ta'zir and its extent (the lectures on the external jurisprudence of Ayatollah Makarem Shirazi), first edition, Qom, Madrasah of Imam Ali bin Abi Talib (peace be upon him). (1383). [In Persian] | ||
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