The investigation of children and insane'scriminal liability in Imamiyah jurisprudence (Figh)

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1 International Journal of Advanced Biotechnology and Research (IJBR) ISSN , Online ISSN X, Vol-7, Special Issue-Number5, 2016, pp Research Article The investigation of children and insane'scriminal liability in Imamiyah jurisprudence (Figh) Mohaddese Yahyapour Department of Law, Sowmesara branch, Islamic Azad University, Sowmesara, Iran* a This article is taken from the master's thesis titled "The investigation of children and insane'spunishment in Imamiyah jurisprudence and adjust it with the Islamic Penal Code (IPC)". mohaddese.yahyapour@gmail.com ABSTRACT A punishment decree regarding children is not contrary to the hadith of Raf' al-qalam and lack of criminal liability.in other words, since the Islamic criminal law have rational system and deliberate policy, so it has chosen a balanced approach about child offenders.this means that, they are not exempt from any responsibility in general but is not considered like adults responsible for them.that is, the determination of criminal liability in this comprehensive legal system is considering the physical and psychological situation of children and the development of sense of discernment in them.considering the importance of child delinquency issue and their and society improvement in the future,islam hasconsidered it is necessary to adopt certain security and training measures in criminal law and even some mild safeguarding measures and has ordered some punishment, such as censure, reprimand, beat. Furthermore, the insane person is free of obligations and responsibilities inimamiyah jurisprudence, Hadd in Sahih narration of Abu Ubaidah which is mentioned earlier,does not include punishment, and it is bind by those narration that considered the respect of interest is necessary in implementing punishment. As a result, the second decree is regardedlimited tohudud, otherwise, there is no another reason in relation to this issue. Therefore, the madness make toexclude the punishment. Keywords: Criminal Liability, Children, Insane, ImamiyahJurisprudence 1. INTRODUCTION In Islamic legal system based on the features of duty of man, everyone is accountable and responsible for the acts and behavior, both individual and social.the Quran refers to this issuesthis assignment is that all their behavior and actions are accurately evaluated and they should be held accountable:surely the eyes, ears and hearts are all responsible (36/SuraIsra). On the other hand, Holy Quran considers the characteristics of human assignment due to his innate abilities and talents. According to Islam, anyone with own intellectual and spiritual abilities and other talents, will be responsible and accountable for their own behavior and that God has not obligated to any more of his abilities as stated in SuraBaqara: Everyone has the ability due to his physical and psychological conditions. In other words the holy legislator to realize any kind of responsibility,is considered essential having physical and mental conditions and characteristics and thinking ability and decisionmaking power and knowledge of legal requirements.in terms of jurisprudence, a series of these physical and mental abilities to take responsibilities any personare known as general conditions of assignment orahliyyat (demonym). Jurisprudents have briefed them in the four elements including maturity, wisdom, authority and knowledge regarding the legal requirements. Hence, considering science of jurisprudence,responsibility in general and criminal liability in particular are analyzed on

2 the basis of assignment, so that, as long as the person is not obligated, will not be responsible for their actions. This means that, the rise and decline of both liturgical and legal responsibilities are subject to realization of these four elements, so that responsibility will lapse if any of these conditions do not exist.on the one hand liability, such as criminal liability will be done throughthese conditions, on the other hand, realization of these conditions depends on variables like age. Thus, the criminal liabilitystart at a certain age which is referred as the puberty. According to the jurists it is 15 full lunar years for boys and nine full lunar years for girls. This means that upon reaching the age, individuals' perceptual and intellectual forces evolves naturally, so that they acquire the necessary competence and capacity to accept the obligations and responsibilities, and the socalled jurisprudents, become mature and wise. Accordingly, one of the conditions for the realization of criminal liability is upon reaching puberty in Islamic legal system, therefore children are not obligated to execute responsibilities and are not reprimanded for the unlawful act or omission of an obligatory duty. So, in order to address all crimes, realization of theassignmentconditions on the offender, including pubertyis required to establish the criminal liability, and if during judicial proceedings turns out the offender is before reaching puberty, he will not be deserving of punishment. 2. The criminal liability of children in ImamiyahJurisprudence According to the jurists puberty is 15 full lunar years for slave and nine full lunar years for girls. In ImamiyahJurisprudence, children are responsible for specific criminal law in each of these stages and there are certain limits in relation to differentresponsibility against their crimes and actions in each of them. When children reach the age of puberty are responsible for the crimes they committed as adults and mature individuals. Therefore, the main issue in the criminal liability of children, is related to the first and second stages. There is no doubt that in the first stage, the child has no the criminal liability for crimes committed, and none of punishment such as retribution, hudud, ta'zir and punitivenessdo not apply in his case. The reason for this exemption is absence of general conditions of assignment, the hadith of Raf' al- Qalam and other hadiths that Shiite jurists havesuggested in this regard. In addition, at this stage the child is notable to recognize matters and do not care about the purposes which are considered in punishment. In a hadith narrated by Muhammad ibn Muslim, from Imam Muhammad Baqer (pbuh) asked about the child who was stolen, he said:if the child is seven years or less, so he will not be punished (al-hur al-aamili, n.d: 525).The jurisprudents have stated that in allcrimes under the qisas and hadd including murder, theft, adultery, sodomy and... punishment apply if the person has the wisdom and absolute discretion and upon reaching puberty and according to different hadiths of Raf' al-qalam, prescription of the tough punishment such as retaliation and Hududis not permissible in the case of children who don't have hit puberty definitely(tousi, 1972: 2-4; Mousavi Khomeini, in 2011: 456; IbnIdris Alhali, 1410 AH: 369; Khoei 1396 AH: ; IbnBorraj, 1406 AH: ).In regard to implementation ofta'zir andpunitivenessrelated to children, they also explicitly prohibited them and believe that due to undiscerning minorare notable to diagnose and understandmatters and their punishment will be useful and will not have a corrective effect (Helli, 1409 AH: 100 and 975; Najafi, 1363: 413; Odeh, 1373: 303; KarimiJahromy, 1412 AH: 282; Iraqi,n.d: 9).So, according to Shi'a jurists and the hadith of pure Imams (pbuh), we can find thatislamic criminal law has not permitted any criminal and exemplary damages for undiscerning minor. Hence, an undiscerning minor committed a crime that is punishable by hadd, the punishment will not be carried about him, if he kill or injure someone, he will not be subject to retaliation, ta'zir and even ta'zir and exemplary damages are not applied in his case. 3. jurisprudents' opinions on child punitiveness On various legal topics used jurists' terms and views parents of children make it necessary for the discerning minor's parents including father, Mohaddese Yahyapour 1495

3 teachers and religious judge, and ect.,to do punish them in cases where there is no other way ofpunitiveness. IbnBorraj, the judge of Tripoli stated about a child who has committed qazf: He was not implicated inhadd punishment, however, punitiveness runs about him(ibnborraj, 1406 AH: 546).AllamehHelli writes regarding punitive decree: there is no assignment for Sabi, however, it is obligatory punish him because it is of interest to punish (Helli, 1419 AH: 554).He also allowed to punish children about crimes such as theft Gazf (the Helli, 1422 AH: 403 and 351). Among contemporary jurists,imam Khomeini about a child who is committed Gazf, wrote: about a discerning minor and punishment have an impact in him, so he will be punish by judge's votes (Mousavi Khomeini, 1390 AH: 472). The aim of ta'zir of children is not the punishment to be implemented for adults and mature individuals,it meansa kind of punishment that is milder than adult's ta'zir. It has different aspects and its ownprovisions. In fact, it isa particular stage of education is mostly used for correcting and training not criminal and penal aspects. The following evidence can prove this claim:firstly,implementation oftazirwhich is considered as punishment likehudud are contingent on conditions such as puberty, wisdom, discretion, knowledge of the legal requirements, and intention to commit guilt and such a things(tabatabai, 1412 AH: 118; Khoei, 1396 AH: 337).So, there is notconditions of implementation of Tazir for undiscerning minor who do not have reached puberty and the understanding and absolute discretion. Secondly, some jurisprudents have explicitly stated thattazir punishment that is imposed on adults and mature individuals cannot be run on child (IbnIdris Al-halli 1410 AH: 443 and 516; Ardabili, 1416 AH: 350; Mousavi Khomeini, 1390 AH: 626; Najafi, 1363: 637).Thirdly, as mentioned in the lexical definition of ta'zir and punitiveness, these two terms interchangeably are used in many cases and have similar meanings. punitivenessis a special type of ta'zir that is mostly used for correcting and training and children Offenders. Therefore, in some issues related to Sabi and insane'spunitivenessand punishment, some jurisprudents have used punitiveness, while others on the same issue, have used the Tazir, and probably the same person expressedpunitiveness elsewhere, that is, it is possible that the jurist be used both punitiveness and Tazir in a similar case (Mofid, 1410 AH: 788; Tousi, 1970 AH: 307; Helli, AH 1410: 177; Najafi, 1363: 379, 414 & 418). Thus, considering the terms of jurists and the use of punitivenessand ta'zirterms we can say that since thechildren are not eligible to apply ta'zir and punitiveness, intended ta'zir which is usedfor them is just means to punitiveness with the aim of correcting and training, while, Tazir which is used for adults as punishment is different with it. Fourthly there are narrations that child is punish if heneglecting learning or doing something that is recommended for him. As an example Imam Sadiq (as) is quoted: you must teach her performing ablution and prayer when the child reached the age of nine, beat herif necessary (Alharolamely, n.d: 13).In addition, referring to the existing explanations and interpretations of the great Islamic scholars, regarding the hadith of Raf' al-qalam can resolve this competition. Ayatollah Golpayeganihas stated: hadith of Raf' al-qalam prohibit punishment and assignment and therefore is not attributable, but it does not negatepunitiveness that could causeharam in the future(khoei, n.d: ). 4. Implementation oftazir punishment for child in ImamiyahJurisprudence According to some narrations, children are punished if they commit crimes which adults deserve to Hadd and Qisas, etc. by doing them.in this regard, there are some spiritual narratives that Shia jurists have also issued jurisprudential decrees (fatwas) based on them in different fields of jurisprudence. We investigate some related crimes and hadiths in the following Death penalty Qisas is one of the Islamic penal institutions, which causes serious crimes such as intended Murder and attempted murder in the first degree and crime on limbs Qisas. The enforcement of Mohaddese Yahyapour 1496

4 Qisas, is depend on certain requirements that without them Qisas will be canceled and converted into the blood money (Diyah).Some of these conditions is related to the murderer and others is related to the victim. The exemption of children from Qisas is expressed in severalnarratives.in some narratives removed have prohibitedqisas of childrenexplicitly, and some other minors' intentional crimes is considered as fault decree and Diyah is the responsibility of the parents of the child. Among the narrations which have been explicitly prohibited Qisas of the child is narration that Sokooni is narrated from Imam Sadiq (as) that is follows: Imam Ali (as) about a boy who was involved with a man to kill another man said: If the boy has five square inchheight, then Qisas should be applied, otherwise, must be paid blood money (al-hur al-aamili, n.d: 66). It should be noted that judging from stature is irrelevant and only is considered as a way to diagnose puberty, and the aim was confirmation of the puberty the boy. This means that if the boy came of age, Qisas should be applied and if you have not yet reached puberty should pay blood money. Another narrativesconsider same both intentional and unintentional of murder and according to them Diyah is the responsibility of the child's parents, for instance in Sahihe Muhammad ibn Muslim, Imam Sadiq stated: Intentional and unintentional murder of child is identical (al-hur al-aamili, n.d: 307). Also in another hadith states: Imam Ali (as) said that intentional and unintentional murder of child is identical and Diyah is the responsibility of the child's parents (al-hur al-aamili, n.d: 307).In a hadith from Imam Sadiq (as) also expressed: Child and insane crime is the responsibility of their parents (Nouri, 1408 AH: 243).In another narration reads: Qisas should not be applied for children and their intended murder is wrong and the wise person should be responsible for the blood money(al-hur al-aamili, n.d: 418; Saduq, 1415AH: 521).Based on these narratives and other similar one, the contemporary Shia jurists have issuedto prohibit the children death and limbs Qisas(Tousi, 1351: 15; IbnIdris Al-helli, 1410 AH: 369; Helli, 1422 AH: 463; Ardabili, 1416 AH: 9).In this regard, Helli writes: If a undiscerning minor does a compulsive Murder, is considered as reluctant (Mokreh) Qisas and there is not Qisas punishment if the murderer be a discerning minor and the wise person should be responsible for the blood money(helli, 1409: 975).Other scholars have also expressed similar statements in relation to the child's reluctance to the murder (Najafi, 1363: 48; Khoei, 1396 AH: 13) Zina (Adultery) In Wasa'il al-shia which is a reputable book of hadith in Shia Islam, Shaikh al-hur al- Aamilialong with narratives collected associated withthehadd for adulteryhas concluded a title entitled: In this title isnoted5 narratives which refer Sabipunishment of discerning minor. For example, in Sahihe Aba Basirhe asked Imam Sadiq (pbuh) to clarify what is the verdict of a boy who has reached puberty and is committed adultery? Imam said: He must whip less thanhadd punishment (al- Hur al-aamili, n.d: 362). MohaddesNoori in Mustadrak al-wasa'ilhas collected narratives. As an example, in a hadith from Imam Sadiqcomes: In the case of adultery, there is no Hadd punishment for children but they are severely punished"(noori, 1408: 46). Also, in this respecthave been collectednarrations in Kafientitled: In this title narrated by Imam Sadiq (as) about a minor boy who commits adultery with a mature women, said: The boy should be punished to less thanhadd punishment, and Hadmust be run about the woman (Kleene, 1367: 180). The following hadith have questions about a minor girl who committed adultery that Imam answers: The girl should be punished to less thanhadd punishment, and Hadd must be run about the man (Kleene, 1367: 180).Ijma (consensus) of Shia jurisprudents on this basis thatgeneral conditions of assignment isessential in the divinely ordained hudud penalties, whetherhadd punishment for zina, theft and etc.(toosi, 1351: Mohaddese Yahyapour 1497

5 2-4; Helli, 1422 AH: 303; Khoei, 1396 AH: 169; Mousavi Khomeini, 1390 AH: 456), although, they always have been allocated to the punishment of minor children who commit such horrendous crimes. Since, committing such crimes have been regarded in the Quran and hadiths of the PBUH infallible from major sins explicitly, and also due to the very serious consequences of committing these crimes by children to society and its people, the majority of jurists issued fatwas to punish children in such cases (IbnIdrisAlhelli 1410: 443; Shirvani, 1384: 12). Some contemporary jurists were also determined the amount and type of punishment and written in this regard: Beating five or six light hit to the child to punish and for his own goodis permitted(khoei, 1396: 340). CONCLUSIONS Considering the total content were investigated in this study about punishment children and lunatics in ImamiyaFiqh, we can summarize the results in a few paragraph: 1. The principle of innocent of children and lunatics from criminal liability has been accepted as a general rule in ImamiyaFiqh and Iran criminal law. Islamic jurists and lawyers believe that having Ahliyyat is necessarily to be responsible of human and they are named a series of physical and mental abilities to take responsibilities any person as general conditions of assignment or Ahliyyat (demonym). Jurisprudents have briefed them in the four elements including maturity, wisdom, authority and knowledge regarding the legal requirements. Having general conditions of assignment or Ahliyyat may be the basis for criminal liability andthe legitimacy to impose any type of penalty that society imposes on offenders for committing a crime. Accordingly, children and lunatics are exempt to tolerate anypunishments and sentences. The main reason to exemptchildren and lunatics from criminal liability is hadith of Raf' al-qalam and lack of Ahliyyat. As well as, the lack of menswearin a crime as one of the most important constituent elements of crime - legal, physical and spiritual elements- is considered as the legal basis of the principle of no criminal liability of children and lunatics. 2. Childhood refers to the first stage of the multiple stages of the human life whichinvolve the beginning of birth to adolescence and is divided into two discerning and undiscerning periods. From the perspective of jurists and lawyers the minimum age for discerning is seven, but there may be some children reach the age of discerning earlier or later. It is impossible to consider the exact the maximum age of discerning, that is they do not agree about reaching puberty. The Islamic Penal Code also did not provide a definition of discerning and does not specify a minimum age for it, only to follow the famous Imamiyeh Jurists has decreedthat girls begin pubertyin9 ages and slaves 15 ages. In any case, the child is undiscerning before the age of seven and there is no criminal liability and punishment for them if they committed a crime in this time. This stage of childhood is among factors that completely prohibit criminal liability.the discerning period begins from the age of seven and continued until the age of puberty.in this stage, having discerning power is questionable, if it would be confirmed the child has the ability to accept a less extent of criminal liability and in case of committing crimes should be punished, but this punishment has a punitive and educational feature, not criminal. 3. The effect of eliminating criminal liability of the insane causes exemption from punishment, however, lack of criminal liability for insane and those who have committing crimes, does not mean that they are always free to do whatever they want to do, but society has the right and can adopt preventive measures and Security and Corrective Measures against threats and vulnerabilities that these people have for social and the rights of people and lunatics are required to accept this act. It should be noted that obligation of insane offenders to accept such measures is not represent their fault and responsibility, it is because of the danger that may threaten social and people once again. Mohaddese Yahyapour 1498

6 REFERENCES 1. Ardabili, M., General Criminal Law, Tehran, Mizan. pub. 1393; 2. Mousavi Khomeini, Ruhollah, Sahifeh Noor, Tehran, Ministry of Culture and Islamic Guidance, SH: 1361; 3. Mousavi Khomeini, Ruhollah, Esteftaat Qom, pub. the Association of Teachers, SH: 1381; 4. IbnIdris Al-helli, AbiJa'far, Alsrayr, Qom, MoasseseyeAl-Nashr al-islami, AH: 1410; 5. IbnBorraj, Abdul Aziz (Judge), Almahzab, Qom, MoasseseyeAl-Nashr al-islami, AH: 1406; 6. Ardabili, Ahmed (scholar), Majma al- Faedeva al-borhan, Qom, pub. the Association of Teachers, AH: 1416; 7. Al-Hur al-aamili, M, Wasa'il al-shia, Beirut:dar al-ehya al-turath al-'arabi, n.d; 8. Helli, J. Hasan (MohaqqeqHelli), Sharaye Al-Islam, Qom, pib. Esteghlal, 1409; 9. Helli, Hasanibn Yusuf, Ghavaed Al- Ahkam, Qom, MoasseseyeAl-Nashr al-islami, AH: 1419; 10. Helli, Hasanibn Yusuf, Tahrir Al- Ahkam, Qom,MoasseseyeImamSadiq (as), AH: 1422; 11. Helli, Hasanibn Yusuf, Mokhtalef al-shi'a, Qom,MoasseseyeAl-Nashr al-islami, AH: 1419; 12. Helli, HasanibnYusuf,Ershad al-azhan, Qom, MoasseseyeAl-Nashr al-islami, AH: 1410; 13. Khoei, A., Musbah Al Fuqaha'a, Qom, Maktaba Al-davari, n.d; 14. Khoei, A., MabaniTakmelat al Menhaj, Qom, al-matbaʻah al-ilmiyah, AH: 1396 ; 15. Saduq, M., Almoghana, Qom, MoasseseyeImam al-mahdi (AS), AH: 1415; 16. Tousi, M., Al Mabsout, Qom, Maktaba Almortazaviyah, SH: 1351; 17. Tousi, M., Alnahayah, Dar-ol-kotob-el- Arabial, AH: 1390 / AD: 1970 AD; 18. Tousi, M., Tahdhib al-ahkam, Beirut, Dar al-taʻaruf, AH: 1401 / AD: 1981; 19. Ameli, Z., (ShahidSani), Masalek al-efham fi SharheSharayah Al-Islam, Qom, MoasseseyeAl-Ma'aref Al-Islamiyah, AH: 1419; 20. Ameli, Mohammed bin Jamaluddin, Maki (ShahidAval), al-qawaidva al-favaed, Qom, MaktabiyaMofid pub., n.d; 21. KarimiJahromy, A.,Aldar al manzood fi ahkam al hudud, Darul Quran Al Kareem, Qom, 1412; 22. Nouri, H.,Mustadrak al-wasa'il, Beirut,Moasseseye Al albeitlahaya al trath, AH: 1408, AD: Mohaddese Yahyapour 1499

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