Review of the legal principles of qisas in imamieh jurisprudence: an emphasis on ayatollah khoyi's points of view

AutorAfshaneh Ahmadi, Sayyed Mahmoud Majidi, Davood Dadashnezhad
Páginas167-188
Periódico do Núcleo de Estudos e Pesquisas sobre Gênero e Direito
Centro de Ciências Jurídicas - Universidade Federal da Paraíba
V. 8 - Nº 02 - Ano 2019 Special Edition
ISSN | 2179-7137 | http://periodicos.ufpb.br/ojs2/index.php/ged/index
167
REVIEW OF THE LEGAL PRINCIPLES OF QISAS IN IMAMIEH
JURISPRUDENCE: AN EMPHASIS ON AYATOLLAH KHOYI'S
POINTS OF VIEW
Afshaneh Ahmadi1
Sayyed Mahmoud Majidi2
Davood Dadashnezhad3
Abstract: One of the most significant
functions of the Qisas (retribution) law is
to protect human beings lives as well as
their integrity. Approving and execution
of the said punishment is subject to
several requirements where the lack of
any of them can prevent it s execution. It
is worth observing that the impediments
of execution, delaying and even fall and
amnesty of retaliation has got a great
importance in the Islamic punishment
laws and regulations. These laws are
originated from the famous fatwa of the
Shi'i jurisprudents, but are not separately
and independently classified under a
particular title. This article seeks to
review and reveal all circumstances in
which the said punishment is set aside in
spite of the commitment of the murder
1 PhD student, Department of Islamic Jurisprudence, Damghan Branch, Islamic Azad
University, Damghan, Iran. Email: majidi@du.ac.ir
2 Assistant Professor, Department of Islamic Jurisprudence, Damghan Branch, Islamic
Azad University, Damghan, Iran. Email: majidi@du.ac.ir
3 Assistant Professor, Department of Islamic jurisprudence and slamic law, Damghan
branch, Islamic Azad University, Damghan, Iran. Email: majidi@du.ac.ir
and the crime. In this research, this issue
has been examined from the perspective
of the famous jurists of Imamieh
comparing with the views of Grand
Ayatollah Khoyi as well as Islamic Penal
Code.
Keywords: Retribution, punishment,
murder, justice, Islamic Penal Code.
Introduction:
One of the main goals of the
Sharia of Islam and other divine religions
is to provide justice which is the basis of
all religious laws and regulations,
especially on the subject of social
relations of human beings. According to
Islam, the principle of counteracting has
Periódico do Núcleo de Estudos e Pesquisas sobre Gênero e Direito
Centro de Ciências Jurídicas - Universidade Federal da Paraíba
V. 8 - Nº 02 - Ano 2019 Special Edition
ISSN | 2179-7137 | http://periodicos.ufpb.br/ojs2/index.php/ged/index
168
been accepted as a primary principle
dealing with the offenders while
observing full equality between the
offense and the punishment in the
punishment of the intentional murder as
the simplest and most basic concept used
in criminal justice.
When it comes to criminal
justice and it is interpreted according to
proportionality between crime and
punishment, the fairest punishment is the
one which is more proportionate to the
crime. It is so obvious that the last degree
of proportionality will be shown when
the outputs of crime and punishment are
the same in terms of the similarities and
externalities. So, retribution would be
the fairest punishment that can be
considered for that crime. For this
reason, one of the main conditions of
retaliation in Islam is the possibility of
equality between the offense and the
punishment, and if there is no possibility
of observance of this equality or even if
punishment has more severe effects than
the crime, retaliation will not be
executed. The issue of abolition of
retaliation is as important as the
retaliation of retribution because both
cases relates to the life of human beings.
This article seeks to find
answers to questions such as which
conditions have to be met to prevent the
retribution? And what are the differences
and similarities between the opinion of
the famous jurists of Imamieh and
ayatollah Khoyi regarding the fall of
Qisas and its prevention? Therefore,
through applying the library method and
referring to the jurisprudential texts, the
opinions of the famous jurists of
Imamieh are presented and compared to
the opinions of the jurists and ultimately
compared to the laws and regulations of
the Islamic Penal Code of Islamic
Republic of Iran.
1- Murderer Madness
One of the conditions for Qisas
is equality between the murderer and the
victim in terms of wisdom, so the lack of
this equality will result in the removing
of retribution. But the distinguishing the
exact nature of madness is difficult, and
scholars and jurists have not the same
opinion about that.
1-1- Being mad as Committing the
Crime
According to the opinion of the
jurists of the Imamieh, if a mad person
kills a wise or mad person, will not be

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