مطالعات تطبیقی فقه و اصول مذاهب (Oct 2023)
The Conflict of Legal Permission of Crime against the Unprotected Outlaw (Mahdūr al-Dam) with the Teachings of Islamic Jurisprudence
Abstract
According to Article 302 of the Islamic Penal Code of Iran (April 21, 2013), if someone commits an offence against an unprotected outlaw (mahdūr al-dam) and someone who deserves death, she/he is exempted from retaliation (qiṣᾱṣ) and paying blood money (dῑya). Article 303 also stipulates that if the perpetrator commits a crime believing that the victim is mahdūr al-dam and can prove this belief, qiṣᾱṣ will not be applicable and he/she will be convicted of dῑya and ta‘azīrī (discretionary) punishment. This research investigates the conflicting cases of legislators prescribing crimes against mahdūr al-dam by normal people. The corollary is that the provisions of articles 302 and 303 of the Islamic Penal Code are in conflict with some of the principles and rules of Islamic jurisprudence such as the principle of the presumption of innocence, the principle of caution in issuing death penalty and peoples honor (precautionary principle in blood and peoples' honor), the principle of legality of offences and punishment (the principle of execution of punishment by Imam (or Judge) and authorized persons on his behalf), the jurisprudential principle of respecting Muslims' blood in general sense, and the principle of human dignity. To resolve not only the existing conflicts but also preventing private justice and maintain the order and security of citizens, this research uses the analytical-descriptive research method with a critical approach to propose to the activists of legislative criminal policy of Iran that the aforementioned articles should be omitted from Islamic Penal Code or amended in such a way that no one can easily resort to them in order to get rid of punishment. To resolve not only the existing conflicts but also preventing private justice and maintain the order and security of citizens, the authors seek to propose to the activists of legislative criminal policy of Iran that the aforementioned articles should be deleted from Islamic Penal Code or amended in such a way that no one can easily resort to get rid of punishment. This paper has been performed based on the descriptive-analytical research method with a critical approach.
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