The General Principles Governing the Principle and Implementation of Sanctions in the Jurisprudence and Law of Islamic Penal

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1 International Research Journal of Applied and Basic Sciences 2014 Available online at ISSN X / Vol, 8 (11): Science Explorer Publications The General Principles Governing the Principle and Implementation of Sanctions in the Jurisprudence and Law of Islamic Penal mohammadreza Malekraeisi, Ali Alebouyeh Islamic azad university, department of Islamic theology and Gducation, zahedan, iran Corresponding Author more.mr53@gmail.com ABSTRACT: In this paper which is deseriptively and analytically studied under the title of "the general principles governing the principle and implementation of sanctions in the jurisprudence and law of Islamic penal" ahempt has been made to first study the general principles governing the punishments and then to study the general principles governing how to ran penalties and finally to obtain some results. In anycommunity special rights has been considered for peoples of that community like right to life, right of freedem, the right to secunty, property rights and tens of other rights since the estabhshing of that community and its survival are subject to the observation of that rights. and if permission be given for the violation of those rights, then order and equilibrium of the community would be lost and individual and social rights of the people would be violated on this basis in all communities even in primitive socities, persistence was on implementation of regulations in order to maintain order stability in the implementation, order and equilibrium of the society be supplied. In this regard punishments of offender are justified and his or her punishment would lie in line with the preference of the best interests of the community to the interests of individual. because other human beings who live in the community also have dignities and we can not let on individual to do what he or she wants merely to maintain his or her dignity and meantime let him or her to violate the right ot life property right, the right of freedom and other rights of individuals which are the features of dignities of other individual. Justas mans enjoyment of, doing thing by choice, makes him responciblc for his actions and must be responsive for them. Key words: principles, offender, punishment. INDRODUCTION In the criminal law, in order to defend public order, maintaining values and supporting people and their right, some reactions are considered and the governments are charged with the duty of implementing punishments on those who violate the public rights. Ther are principlcs and rules governing the Legislation of Islamic punishment which stem from the attribute of divine mercy to human beings and the consideration of interests and main tenance of the dignity and personality of the offenders so that the main goal and purpose this Legistion be maintained and be accurately realited. And by careful examination of the punishment principles, one can realite some of the aspects of the philosophy of punishment which consist of two general branches: 1) the principles governing the origin of penalties the principles of equality of penalties the principles of equality of penalties means that equaland similar punishments should be determined for two offenders who under the same conditions have committed the same crime. This principle is infact supplement to the principle of legality of penalties. The assessment of the crime situation for several people who have committed similar crimes is an extremele difficult task if not impossible which can not be judged. Unfortunately most of the judges, not regarding to the real personality of the offender, pay attention to the criminal act itself and the morphological properties of the acts of the committers and proceed with the verdict regard less of whether each one of those offenders with what incentive has committed the crime. Which factors have affected their free will? Does the determination of an equal punishment for all perpetrators has the same effect? Paying attention to these issues by the criminal judge causus him to agree with as on the attitude that the implementation of equal punishment for those who have commietted similar and the same crimes not only does not provide criminal justice but it is by itself the very injustice.

2 Punishment in the past were different depending on the status and personality of individuals.even the way of their implementation was different for different individuals may have effection thire punishments.but theore tically oll individuals are equal before the law and the implementation of punishment should be reguard less of the individuality. in the Islamic law the criterion of in equality is the virtues of the individuals.what is to be considered is the crime of the perpetrator and dipending on the severity of the committed crime the punishment is determined.not only oll commitrs of the similar crimes don t have the same incentives and free will in committing the crims but implementation of similar punishments too, does not have the same effect on different individuals and the amount of penalties according to the physical and mental strength of the individuals and in financial penalties according to their economic power is strongly fluctuating.for example consider two individual who are sentenced and because theire imprisonment is two months,that punishment is changed to fine payment. for one of them who is poor this penalty is very heay and for the other one who is rich not only this penalty is not effective but he or she may ridicule the implementation of punishment.or conversely jural endurance is idealistic for a poor and he ore she is eager to endure it because of the costs of living while for a rich the opposite is true.so weconclude that the equality of penalties is more theoretical than practical because on the noe hand people have different status and especially the financial conditions of the criminals in many cases may become the cause of their extrication and the breaking of this article and on the other hand each judge in his dealing with individuals, deals whith them according to his espeeral character,therefor the principle of equality is limited by different conditions of the offender and his or her social status, the mood of the judge, public opinion and many other issues. The principle of personaliting the penalty befor the advent of criminal law and formation of the new criminal justice system, the responsibility of the offenders in practice encompassed their family members and relatives. When a person committed a serious offense like betraying the king, all of the family members and relatives of the perpetrator, were punished and tortured, or a tribal system when a person from a tribe committed a crime against a person from the other tribe, not only the perpetrator and his family members but all of his tribe were burned with the fire of the anger and revenge of the tribe of the victim and in fact at that time the responsibility was collective. but over time and evolation of criminal law and with the aim of establishing security and criminal justice, the principle of personaliting the penalties which was exactly opposite of the collective responsibility, dominated which in fact was balm to the extremisms of that age. the real sense of this principle implicates that the and its effects should include onle the perpetrator and every body is responsible for his her action and passing of all the laws should be taken place with such an approach. but unfortunately observation of this principle is not considered in all cases and the effects resulting from the enforcement of penalties includes the others too.for example a person who is sentenced to prison and is to spend a period of time in jail his or her children are to suffer from like emotional and to suffer from the effects of punishment financial poverty, resulting from loosing their protector. Resocialitation too would be very difficult for the prisoner. in the financial convictions resalting from criminal act too, by obtaining financial penalties the rate of in heritance of the heirs is reduced and the effects of punishment are imposed on the heirs. The enforcement of the principle of personaliting penalties which is accepted in the laws of new countries is an unrealistic assumption because the effects of conviction of the criminal is perforce spreaded to his or her family members and would be effective in their fate and life, changing their way of normal life and would lead them to the directions which are not their favorite ones. so the enforcement of the principle of personaliting the penalties is practically very difficult and perhaps even impossible. this causes the judye, while determining the punishment, apply a desirable flexibility in order to refine, punish and prohibit the criminal. In the Islamic law is only enforced the person who is responsible for an illegal act not against any other person. It may be said that this rule of enforcing penalty only agcunst the person who is responsible for the criminal act has created an important change in the concept of personalitation of penalty as state legislature lie on it. this aule is laid down to eliminate the consequences of collective and personal revenge which governed the ancient societies including the arab community in the age of ignorance. The concept of revenge in these societies used to lead to the disasters and long wars which often its heavy price was being paid by the innocent people.the Islamic law emerged to eliminate and abolish such pheromena and their belifs. The almighty God says in this context that : no bady receives nothing but whate ever is responsible for it and no body carries the load of others on his or her shoulders. Anam 164. also prophet mohammad pbuh says: no man is to be punished because of the crimes of his father or brother. the principle of equality in enfocement of penalties agaist criminal act is among the basic principles on which the Islamic criminal justice system lies. equality meaning the oneness is in the crime committing conditions to which ijtehad issues belongs.therfor in the sentences without payrolle the personality of the perprator and also the dimensions and amount of dangerousness of thr crime in determination of the plasphemy are considered.

3 the principle of legality of penalties the principle of legality of penalties is accepted in most of the penal systems in this war that the judge can not proceed whith the determination of penalty for the perpetrator whitout the existence of latters of the law i.e. the community should first recognize the abnormalities on the basis of the criminal law and the should proceed with determining a punishment wich fits the crime, get the approval of the comptene authority make it in the from of law and infrom its citizens on it.this principle which nowadays governs the criminal laws of most of the countries of the world, is called the principle of the legality of penalties.bkarya was one of those who strongly criticized the arbitrary actions of the judges and the executers of penalties in this time and strong on this principle at that time was a barrier to the conceit of the judges who did not limit themselves.but it wasnot the guarantor of personal rights and freedoms and administration of justice because this theory was later criticized and amended. the principle of legality of penalties is considered by the legislators of our country too. according to this principale thre is to be no punishment and no court without law as it is stated in the article 36 of the Iranian constitution. sentence and implementation should only be through a competent court and should only be emphaasited this issue and this principle is also apprehensible through the legal rule of nastiness punishment without statement. but in the angle-saxon legal system, this principle is not considered as strogly as the legal system of the countries whit written law. because in this system penalty is not quite clear and it is the judge who determines the severity of penalty because on the judicial feeling and paying attention to the position of the perpetrator, because of the disagreement of this principle with the principle of prsonaliting the penalties and abstracts justice in some cases,its severity and strictness is rebated and issues such as reforming the offender,the system of social punishment is considered. principle of wasting Waste literally means misspend in legal terms, it is when a person directly wastes the property of another prson whether deliberately or unintentionally.by the word directly it is meant that this action should be done without a mediator not that he or she creates a situation under wich the property is lost. foe examole if a person lights a match and throws it over the harvest and wind spreads to the harvest the fire wich is lit close the it and the harvest be set on fire then the action of the persons who lights a fire is not considered as wasting. according to the article 328 of the civil code the person who waste the property of other people is responsible and it is require from him to recover. Based on a prophetic hadith (the person who wastes the property of another person,is then responsible for it )the person who wastes the property of another person, is responsible for recovering the basis of responsibility for waste, is causing a harm or a loss and there is no need to prove the fault of the one who causes the loss. the realm of the waste rule in the legal system of islam is not limited and restricted to the recovery of the financial loss but any kind of abuse and invasion of the body and soul of someone would be the reason for criminal responsibility of the perpetrator. From the stand point of Islamic jurisprudence, the occurrence of an action intentionally or unintentionally, is not a condition for the realitation of wasting,rather once damage is in flicted whether financial or personal.yhe injured person can seek indemnification from the person who has inflicted harm or the offender. To prove wasting it is practically enough to find a direct causality between the action of the person and the result. for example if a person drop shot with the intention of killing an animall but it kills a human being without the intention to kill him, then he is criminally responsible. because from the standpoint of evil law, creating the cause of death.shooting justifies the direet relation ship between the specific action and the result. There fore in wasting the person is the waste supervisor and not responsible for it and in criminal affairs the perpetrator is the one who directly does something which habitually leads to inflicting a damage like injuring or killing another person by knife and firearms which entails criminal responsibility. the principle of causation Causation literally means providing the cause. In legal terms, it is when a person provides the arranhements for financial loss not that to directly waste a property. for example someone digs a hole in the street and another person falls in it and is injured or a person throws the peel of his or her fruit on the street and someone else stumbles and is injured according to the article 331 of the civil cod, the person who causes to the property of another person be wasted is obliged to eompensate for it. Any time aperson by preparation of arrangement cauies the realization of damage or harm, in order to be eonsidered responsible, it is necessary that the eausation relation ship between the action done and the damage be proven. seeking the causalty relation ship between the action and the result is a difficult task because it is possible that several phenomena have influence on the occurrence of the damage or loss. separating them from each other is to aseertion that which one is the real reason of damage or harm.

4 In the legal system of Islam, causing any damage or loss to another person whether there is a partner in crime relation with him or her or there is a causation relation with him or her, he or she is to be responsible for it. jurists are not unanimous in defining the cause. Some have said that the cause is any thing that the motive for wasting is a resalt of so that if that cause was not present, the reason of wasting for occurrence of damage or hard could not affect. some with regard to the news and hadith believe that what is meant by causation is creation of background for waste provided that this background be from those cases that by its creation there is either an intention of wasting or the possibility of wasting whether that background be the condition or the cause,whether the cause be close and without an indicator or the cause be remote and mediated.with regard to the disagreement among the juriston the case of causation,among jurists,the term cause is different reason because reason is said to be anything wich if comes to exist, then without a pause its effected comes to exist too. but causation is that the cause goes to do something wich prepares the background for damage so that if that act wasnot committed the damage did not take place to. the principle of no damage The prophet mohammad PBUH by expressing the principle of no damage legis lated and consolidated any type of damage and the necessity of of its compensation in the Islamic jurisprudence.and according to this principle no body should harm to another and no harm should remain without compensation. so this principle is as a general principle and the laws related to different responsibilities stem form it. Islamic jurists and scholars belive that since the narratives on negation of damage imply that in the Islamic laws and ralings there seems to be no harms therefore, wherever illegitimate or inappriate loss arises from civilor criminal sentences in complying with the observation of the principle of no damage second sentence runs. the text of some of the quoting of the hadith of prophet in which no damage and do no harm in islam are stated indicale the universality and generality of the principle of no damage and its executive power with respect to all of the islamic laws and rulings including devotional eivil and criminal ones and if in some of the narratives there is no reference to the word islam it is because prophet mohammad is the messenger of God and the missionary of his commandments and the composition of any sentence on behalf of that holiness in connection with social issues would certainly be in the range of Islamic sharia. the principle of responsibility Responsibility from the jurisprudence and legal stand point has different meanings and concepts ingeneral any kind of commitment financial responsibility and responsibility towards others is called responsibility from jurisprudence standpoint and in this respect responsibility includes civil and criminal ones. prophet mohammad PBUH has expresswd different sentences and several idioms on the principle of responsibility invluding one who wastes the property of another one is responsible for it. The person who wastes the property of another person is responsible to compersate for it and also it stated that any thing that in the peoples route and crossing cause harm to them, then its owner is responsible for it. the existence of such sentences in the Islamic legal system indicates that the legal foundation of responsibility among other juridical principles as a general principle plays acritical role in the justification of responsibility including civil and criminal ones. the principle of principle The main basis and root of administration of principle is the holy Quran and on the other hand in the logic of Quran, the basis of world view and criteria for understanding lawand the peoples merit criterion for assuming judging, leading jobs, testifying, and other social jobs is based on the axis of justice. Justice and fairness have a long histort in islam they are originated from the beginning up to now. The principle of Justice in The Islamic legal system, has always been employed as the integral component of the principles and basics of Islamic law to lead the judges and magistrates in examining and responsibility taking of criminals. This principle has gained importance in The Islamic world to the extent that among some of the Islamic sects, Justice is considered as one of the articles of faith. Islamic jurists and scholars, have defined Justice in this way : Justice is a mode or quality and ego queen which prevents from committing what stems from pride and from insisting on disadvantaged. according to these scholars, Justice is one of the traits and not one of the actions. there fore the trait justice does not apply to the self of man, rather justic is the ego queen and internal firm mode which leads to piety and man lines. some of the scholars by reasoning that realizing the eqo queens through the clues is not an easy task but rather it is difficult, have said on the definition of Justice that : Justice is avoiding erimes and sins and it is practicing the rituals. And just is the one who attempts in the path of sharia and does not devite from it.in the book of divine, four words are used for justice: A-being weighted:if w consider a set in wich different components are used and a specific gool is intended, certion conditions in terms of the necessary amounts of each component and in terms of quality, the relationship of components with each other should be observed and it is only in that case wich the set may remain and show its desirable effect and play its intended rol. for example if a community wants to remain 4699

5 should be moderate I.e everything in it should be in required amounts and not in equall amonts. a moderate community needs to do a lot of economic,cultural, social, political,educational and judicial work and these tasks should be devided among people and for each one of those tasks,those people should be assigned to the correct office.with respect to social balance what is essential is that the amount of needs should be considered and in accordance with those needs, energy and budget should be utilized the world is harmonious and balanced if it was not so, there would not be any order, accounts and specific course. It is stated in holy Quran that : and the sky was raised and the balance was put. as the commentators have said by this statement it is meant that in the constraction of the world justice is observed, from any substance the required amounts are used the distances are measured. it is stated in a prophetic hadith that : the heavens and earth are set up by justice. B-Equality and rejection of all forms of discrimination sometimes it is said that someone is just, by this it is meant that he or she dose not discriminate against anybody. thefore if justice be taken as meaning equality then justice would require that no entitlement be observed i.e every body and every thing would be seen in differently and this is nothing but injustice. But if the intention be that justice means observation of equality in the context of equal entitlements, then surely this meaning is correct. justice requires such equality and such an equality is of the requirements of justice. c- observing the rights of people and granting right to the one who desserves it. and injustice is trampling the right and violation the rights of others and seizing on their rights. The real meaning of human social justice i.e. the justice which should be observed in the humana itarion law and human beings should respect it. this justice rely on things: one is rights and priorities I,e. human beings with respect to each other and in comparison with each other have some kind of rights and priorities. for example some one who by his or her job produces some kind of product, naturally acquires some kind of priority is his or her work and activity.the other one is the in herent feature of human being i.e. he or she is created such that in his or her tasks necessarily employs some kind of thoughts which we call them credit ideas and by using that credit ideas as the means of action reaches to his or her natural goal. An this is what is called human justice which everybodys conscience confirms it and condemns its opposite which is called ijjustice. D- observing the merits in imparting quality and not avoiding from imparting and mercy to what ever which has the possibility of existence or perfection. That is any entity at eny level from the stand point of ability to impart, has a mert which is specific to himself or herself. the sacred nature of god which is absolute perfection and absolute goodness and is grace giver,as it is named, grants to anybody what ever he or she can have from perfection and existence and forbears not. according to this theory, anybody reaches to eny level of existence and perfection which deserves injustic means preventing grace and for bearing grant from someone who deserves it. from the standpoint of theologians. the quality of justice is worthy of the essence of lord and is proven as a perfection quality for the essence of lord and the quality of injustice which is imperfection is striped off him. the wisemen believe that no entity acquires right over the lord which giving that right would be considered as the right to perform a task or a tribute and the lord is considered to be just because carefully does all his duties before others. divine justice is the same as bounty and the same as his forgiveness i.e. divine justice is that the lord does not with hold his bounty from no soul as much as ther would be the possibility of kindness for him. Hazrat ali (as) in sermon 214 of nahjulbalagheh states that: right is not one sided. Any body who acquires right over another, that another also acquires right over him. it is only the essence of lord who acquires right over his creatures and the creatures have duties and responsibilities before him but creatur acquires right over him. the principles governing the enforcement of penalties Not to insist on the proof of the crime Not until a person is proved guilty, the principle is that the person is innoccnt. in the article 37 of the constitution of the Islamic republic of iran it is stated that the principlc is that the individuals are innocent of crime and no bady from the standpoint of law is considered guilty unless his or her crim is proven in a competent court. for example we have on the sanctions in the Islamic jurisprudence that : ward off priorities border: there fore in the presence of priorities, the implementation of sanctions is avoided, because the principle is based on being innocent of crime. Imam Khomeini(god rest his soul) states that: no bady has the right to enter the house, the shop or work place of some one without the permission of the owner or arrest, or chase and monitor someone in the name offense discovery or committing sin, or insult someone and or do Islamic in humane acts, or eavesdrop or listen to the tape of others in the name of offense or sin discovery or share hears for the sake offense or sin discovery or follow the secrets of people and explore the sins of others or disclouse the secrets obtained from others to someone else.

6 preserving the character of the offender in the execution one of the indicators of islam in preserving the human character and dignity, is offending the personality at the time of exeation. Imam Khomeini(god rest his soul) states in this respect that: all of as should know that on the offender who has committed the worst crimes and is moving towards the gallows, no body has the right to harm him or her literally or practically other than canonical execution. and the doer is himself or herself a tyrant and deserves punishment. CONCLUSION The holy Quran is the most important and perfat principle in the Islamic punishments which is followed by narratives received from the imams and innocents which are other sources of the Islamic criminal law. they, together, overwhelm in a way other principles governing the Islamic punishment. the basis of all punishments in originated from the divinc mercy towards the perpetrator and other human beings, yet from the standpoint of islam, the personal and social dimensions in the material life of is also considered in the sanctions legislation. And by referring to the verses and narratives one can mention relief for victim, reforming the offender as the personal dimensions and administration of justice, maintaining social order, and the deterrence aspccts of punishments as the social dimensions intended by islam. In islam both the hereafter, atonementand refinement dimensions and material as well as temporal dimensions are completely considered and also in islam the penalties are completely considered not merely being retribution or, blood money or sanction rather in several cases in lroportion to the crime commihed there are rebates and selected substitutes and alternatives. any yet islam has stated that forgiving is closer to piety and finally it should be stated that one of the philosophies of Islamic punishments is the manifestation of divinc mercy toward the offender in the from of reducing the punishment of here after, atonement for sins, refinement of the perpetrator, correction and rehabilitation of him or her and the other one is the manifestation of divinc mercy towards the non offender in the form of preserving the social order, deterrence, and the realization of justice. 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