Jurisprudential Analysis of the Extent of Ta'zeer in the Islamic Penal Code: An Exploration of Government Jurisprudence

Document Type : Research Paper

Authors

1 Assistant Professor, Public Law Department, Faculty of Law and Political Sciences, Shiraz University, Shiraz, Iran.

2 PhD in criminal law and criminology, University of Tehran, Tehran, Iran

Abstract

The Islamic revolution has transformed Ta'zeer in Islamic law, notably through the 2013 Islamic Penal Law's Article 18. This shift broadened Ta'zeer's scope, encompassing Shariah prohibitions and government regulations. Despite drawing from Shia jurisprudence, particularly "Al-Ta'zeer Lakl Haram," the extension of Ta'zeer to non-disobedient acts lacks a clear rationale. Article 18 introduces a debatable categorization of punishments, dividing them into written and unwritten forms, and imposes statutes of limitations on Ta'zeer, contrary to Imami jurisprudence. This study navigates the complexities of these legal reforms, examining their historical and doctrinal evolution within government jurisprudence, offering insights into the interplay between Islamic law and contemporary amendments.

Keywords

Main Subjects

References

A group of authors (Bita), Fiqh Ahl al-Bayt, peace be upon them, Volume 54, Qom: Institute of Islamic Jurisprudence Encyclopaedia on the Religion of Ahl al-Bayt, peace be upon them. (in Persian)
Ansari, Baqer, Aslanzadeh, Rahim and Boroujardian, Ali (2007), Legal lexicon, Second Edition, Tehran: adjutancy of Research, Compilation and Revision of Laws and Regulations. (in Persian)
Ashuri, Mohammad (1385), Criminal Procedure Code, Volume 1, 11th Edition, Tehran: Samt Publications. (in Persian)
Babaei, Mohammad Ali (2008), "Critical analysis of the legislator's understanding of the passage of prosecution time", Journal of Legal Studies of Shiraz University, 1 (3), 49-68. (in Persian)
Chiraghi, Ali Asghar (Spring and Summer 2013), "Elements and Realm of Ijtihadi Interpretation", Sahifah Mobin Magazine, 34-33, 34-4. (in Persian)
Fatahi, Seyyed Mohsen (spring and summer 2013), "Comparative study of punishments as punishment from the point of view of Islamic religions (relying on the role of the element of guilt in the nature of punishment)", Scientific Research Journal of Jurisprudence Research, 9 (1), 87-104. (in Persian)
Habibzadeh, Mohammad Jafar and Aini Najafabadi, Mohsen (April and September 2011), "The basis and criterion Ta'zir", Judicial Journal, 33, 22-26. (in Persian)
Haeri, Sayyid Ali bin Muhammad Tabatabai (1418 AH), Riyadh al-Mas’il fi Iqhāqī al-Ahkam by Evidence, Volume 15, First Chapter, Qom: The Foundation of the Family of the Prophet, peace be upon them. (in Arabic)
Haji Dehabadi, Ahmad (2011), Penal Jurisprudence Rules, 3rd edition, Qom: Hozwa and University Research Center. (in Persian)
Hayeri, Seyyed Kazem (Autumn 2016), "Types of ta'zir and its rules", Ahl al-Bayt Fiqh Journal, 51, 3-33. (in Persian)
Hedayati-Kakhki Mohammad and Bohlander  (2009),” Criminal Justice Under Shari’ah in the 21st Century – An Inter-Cultural View”, Arab Law Quarterly, Vol. 23. (In English)
 
Holy Quran, translated by Nasser Makarem Shirazi, Qom: Publications of Imam Ali Bin Abi Talib School. (in Persian)
Hosseini, Seyyed Mohammad (1388), the relationship between the Shariah concept of "sin" and the legal concept of "crime" and the relationship between "sanction" and "punishment", criminal sciences, a collection of essays in honor of professor Dr. Mohammad Ashuri, second edition, Tehran: Samt Publications. (in Persian)
Hosseini, Seyyed Mohammad (summer 2019), "Deterrent punishments, theoretical problems and practical problems", Journal of Faculty of Law and Political Science, 40 (2), 139-158. (in Persian)
Ibn Manzur, Abu al-Fadl Jamal al-Din Muhammad ibn Makram (1414 AH), Lisan al-Arab, volume 4, Chap Sum, Beirut: Dar al-Fikr for Printing, Publishing and Distribution - Dar Sader. (in Arabic)
Khawansari, Seyyed Ahmed bin Yusuf (1405 AH), Jami al-Madarak fi Sharh Khazrat al-Nafi, revised by Ali Akbar Ghafari, second edition, Qom: Ismailian Institute. (in Persian)
Kolaini, Mohammad Bin Yaqoob (B.T.A.), Ghazideh Kafi, Volume 6, translated by Mohammad Baqer Behboodi, Tehran: Center for Scientific and Cultural Publications. (in Persian)
Kulaini, Muhammad bin Yaqoub (1407 AH), Al-Kafi, volume 7, Tehran: Dar Al-Kutub Islamiyeh Publications. (in Arabic)
Maalouf, Louis (1384), Farhang al-Manjad, translated by Mohammad Bandar Rigi, fifth edition, Tehran: Iran Publications. (in Persian)
Majlisi, Muhammad Baqir bin Muhammad Taqi (1404 AH), Mirror of Minds in Sharh Akhbar Al-Rasul, Volume 23, Tehran: Dar Al-Kutub Al-Islamiyyah. (in Arabic)
Makarem Shirazi, Nasser (1427 AH), Isftataat Jadid, volume 2, second edition, Qom: Publications of Imam Ali Ibn Abi Talib School, peace be upon him. (in Persian)
Mir Mohammad Sadeghi, Hossein (1384), specific criminal law (2) crimes against property and ownership, 13th edition, Tehran: Mizan publishing house. (in Persian)
Mohadi Lankarani, Muhammad Fadel (1422 AH), Detal al-Sharia fi Sharh Tahrir al-Wasilah-Al-Hudood, Qom: Center for Jurisprudence of Imams Athar, peace be upon them. (in Arabic)
Mohagheq Damad, Seyyed Mustafa (2006), Rules of Jurisprudence: Criminal Section, 8th edition, Tehran: Islamic Sciences Publishing Center. (in Persian)
Mousavi (Imam Khomeini), Seyyed Ruhollah (Bita), Tahrir al-Wasilah, Qom: Dar Al Alam Press Institute. (in Persian)
Munir Muhammad (2011),” Compatibility between Anti-Terrorism Legislation and Shari‛a”, Pakistan Journal of Islamic Research, Vol. 8, 63-107.  (In English)
Najafi Abrandabadi, Ali Hossein (2008), from criminal law to criminal science, criminal science, a collection of essays in honor of professor Dr. Mohammad Ashuri, second edition, Tehran: Samt Publications. (in Persian)
Omid Zanjani, Abbas Ali (1386), Jurisprudence Rules, Criminal Law Department, first edition, Tehran: Samt Publications and Institute of Islamic Studies and Research. (in Persian)
Rahami, Mohsen (2008), The Customization of Punishments in the Penal System of the Islamic Republic of Iran, Criminal Sciences, a collection of essays in honor of professor Dr. Mohammad Ashuri, 2nd edition, Tehran: Samt Publications. (in Persian)
Rostami, Hadi (2012), Punishment justification in the theory of moral education, encyclopedia of criminal sciences, collection of new articles on criminal sciences, second book, Tehran: Mizan publication. (in Persian)
Saedi, Jafar (Summer 2016), "The Unity of Manat and the Abolition of Character", Fiqh Ahl al-Bayt Journal, 13(50), 104-117. (in Persian)
Shams Natri, Mohammad Ebrahim, Kalantari, Hamid Reza, Zare, Ebrahim and Riazat, Zainab, (2012), Islamic Penal Code in the Current Legal System, 1st Edition, Tehran: Mizan Publishing House. (in Persian)
Shaykh Hor Amli, Muhammad bin Hassan (1409 AH), Shi'ite means, volume 28, Qom: Al-Bayt Foundation, peace be upon them. (In Arabic)
Soleimani, Hossein (1384), Criminal Justice in Judaism, Tehran: Religions and Religions Studies and Research Center. (in Persian)
Zamani, Leila, Abuei, Hossein and Tulaei, Ali (autumn and winter 2013), "Tashir Shahid Zoor", Fiqh and Fundamentals of Islamic Law Journal, 44 (2), 117-138. (in Persian)
Criminal Law Research
Volume 15, Issue 1 - Serial Number 29
Papers
July 2024
Pages 132-145

Files

Share

How to cite

Statistics