Efficient legislation in the light of attention to the positions of the infallible Imam (Case study: Rulings of Qisas in Islamic jurisprudence and penal code)

Document Type : پژوهشی

Authors

1 Master of Jurisprudence and Criminal Law, Faculty of Humanities, Shahed University, Tehran

2 Assistant Professor of the Department of Fiqh and of Islamic Law, Shahid University ,Tehran, Iran

Abstract

According to Article (4) of the Constitution, all laws and regulations must be based on Islamic rules. Considering that the source of derivation of many Islamic rulings is hadiths, one of the requirements of effective legislation is to pay attention to the position and position of the imam in the statement of hadith; Because sometimes the imam in the position of a judge, sometimes as a leader and ruler of the Islamic society, and in most cases in the position of a preacher, expressed the divine decrees. It is clear, if the legislator is faced with a permanent sentence with a narrative that is of a judicial or governmental nature, the law may lack the necessary efficiency in its implementation and may even provide the basis for abuse by professional criminals.
This research, using a descriptive and analytical method, tries to separate the divine, judicial, and governmental narratives regarding Qisas, to investigate and analyze the level of attention of the legislative trustees to the position and office of the Imam in this regard. Studying the articles of retribution section in the criminal laws approved in 1361 and 1370 shows that in some cases, the legislator did not make a precise distinction between divine, judicial and governmental traditions. This has resulted in criminalization of the law in some cases. Although with the approval of the Islamic Penal Law in 2012, more attention has been paid to the position and status of the Imam in issuing rulings, but it has been considered necessary to review this law regarding the habitual Killing religious minorities by Muslims.

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