نوع مقاله : مقاله پژوهشی
نویسندگان
1 نویسنده مسئول، دکتری حقوق جزا و جرمشناسی دانشگاه علامه طباطبایی، تهران، ایران.
2 استاد گروه حقوق جزا و جرم شناسی، دانشکده حقوق و علوم سیاسی دانشگاه علامه طباطبایی، تهران، ایران.
3 گروه حقوق جزا و جرم شناسی دانشکده حقوق و علوم سیاسی دانشگاه علامه طباطبایی
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Objective: Investigating the potential of Imamieh jurisprudence to attract effective family participation in responding to juvenile Haddi crimes and evaluating the jurisprudential legitimacy of resorting to this solution.
Method: The present research is of a fundamental and qualitative type, which was conducted using a descriptive-analytical method and by analyzing data obtained from library resources in the field of Imamieh jurisprudence. The research sources included early and late jurisprudential books, opinions of contemporary jurists, jurisprudential inquiries, and related research. The data analysis was based on two main axes: first, examining the permissible scope of effective family participation in juvenile Haddi crimes; second, explaining the legitimate forms of family participation from the perspective of Imamieh jurisprudence. In the first axis, jurisprudential propositions related to the limits (Hodoud), such as the basis for mitigation in the limits (Hodoud), repentance, criminal growth, and the ruler's guardianship, were examined, and in the second axis, forms such as mediation with the judge and the victim, and family participation in determining and implementing alternative Tazir punishment were analyzed.
Results: Existing jurisprudential propositions clarify the current possibilities for family participation, including the establishment of a reduction in the limits (Hodoud) and attention to the growth of the penalty. Suggested solutions such as mediation with the judge and the victim are considered legitimate within a certain range. Also, by proving the legitimacy of using the Tazir punishment in the Haddi crime, it was clear that the judicial authority can define the appropriate Tazir response in the context of the family or implement it with the help of the family.
Conclusions: The permissible scope of family participation in jurisprudence is broader than the current law, and legal reforms seem necessary to take advantage of this capacity.
کلیدواژهها [English]
Introduction
Adolescence is a sensitive stage of a child's transition to adulthood, beginning with sexual maturity and ending at the age of 18. The increase in juvenile delinquency and its social consequences have revealed the necessity of utilizing the family's capacity in criminal policy. The family, as the first educational and social institution in the legal system of the Islamic Republic of Iran, has a pivotal position; as the Constitution (cf., Constitution, Introduction and Article 10) and the General Family Policies Document issued by the Supreme Leader have emphasized its fundamental role in preventing social harm and the weakening of the family institution. However, in the country's legislative and judicial policy, the position of the family in responding to juvenile delinquency, especially in Haddi crimes, has been seen as minimal. Existing laws refer to this issue only in the form of parents' presence in the proceedings or handing over the child to their parents, and so far, no comprehensive and effective mechanism has been developed for the family's participation in the process of responding to juvenile delinquency.
From the perspective of Imamieh jurisprudence, the issue of family participation in Haddi crimes faces jurisprudential and Sharia legitimacy challenges, because the fourth article of the Constitution emphasizes the compliance of laws with Islamic standards, and Haddi crimes are considered among the most stringent crimes in terms of Sharia principles. Therefore, the main issue of the present study is to assess the feasibility of attracting effective family participation in responding to juvenile Haddi crimes from the perspective of Imamieh jurisprudence in order to assess whether this solution is considered legitimate from a jurisprudential perspective or not.
The present study is based on the assumption that the capacities of Imamieh jurisprudence can provide a legitimate platform for family intervention in formats such as mediation with the judge and the victim, replacing Haddi punishment with educational Tazirat, and imposing educational obligations on parents. Accordingly, the family can play an active role in the correction, care, and rehabilitation of the juvenile and reduce the severity of the criminal response.
Method
This research is of a fundamental and qualitative type, conducted using a descriptive-analytical method and analyzing data obtained from library sources in the field of Imamieh jurisprudence. The research sources include early and late jurisprudential books, opinions of contemporary jurists, jurisprudential inquiries, and related research. The data analysis was based on two main axes: first, examining the permissible scope of effective family participation in juvenile Haddi crimes; second, explaining the legitimate forms of family participation from the view of Imamieh jurisprudence. In the first axis, jurisprudential propositions related to the limits (Hodoud), such as the basis for mitigation in the limits (Hodoud), repentance, criminal growth, and the ruler's guardianship, were examined, and in the second axis, forms such as mediation with the judge and the victim, and family participation in determining and implementing alternative Tazir punishment were analyzed.
Results
The findings show that the pattern of responding to juvenile Haddi crimes in Imamieh jurisprudence is not based solely on the implementation of repressive punishments; rather, a set of jurisprudential generalities and rules provides the possibility of mitigation, suspension, and substitution. The first jurisprudential basis is the "absolute non-implementation of Haddi punishments", which was accompanied by disagreement among jurists during the era of occultation. Some have considered the implementation of limits (Hodoud) permissible only in the rule of comprehensive jurists (Mohaghegh Damad, 1999; Masjedsaraei and Momeni, 2009). Another group emphasizes the possibility of issuing government decrees by the Supreme Leader to stop the implementation of limits (Hodoud) based on public interest and the rule of maintaining the system (Husseini Kashani and Sharifi, 2020). In such a case, the Supreme Leader can, upon determining the expediency, refrain from implementing Hadd and apply alternative responses by utilizing the family's capacity.
Another rule is "the basis of reduction in the limits (Hodoud)" that jurists have deduced from the generalities of narratives (cf., Ameli, 1413AH, 14/513; Najafi, 1362AH, 41/157; Fazel Hendi, 1416AH, 10/321; Tousi, 1387AH, 8/163). Narratives regarding the prohibition of prosecution within the limits (Hodoud), such as the narrative of a man who confessed to adultery before Imam Ali and the Imam repeatedly stopped him from confessing (cf., Sadough, 1413AH, 5/353), confirm the principle of covering up the crime and reduction in the limits (Hodoud). Also, accepting repentance before proving the crime in the crimes of Allah's right except for war, causes the punishment to be dropped (cf., Fazel Hendi, 1416AH, 10/435; Koleini, 1407AH, 7/250). This jurisprudential foundation shows that the Holy Lawgiver does not consider punishment as the ultimate goal and has always left the path of repentance and reform open.
Another finding of the research is the "condition of criminal growth" in realizing the criminal responsibility of a juvenile. According to Imamieh jurisprudence, religious maturity alone is not sufficient to realize criminal responsibility, and criminal growth is a necessary condition for implementing the limits (Hodoud). Jurists such as Allameh Helli in his book titled Tahrir al-Ahkam have considered growth as a condition along with puberty (Helli, 1420AH, 2/226; Fazel Hendi, 1416AH, 10/493). Rational reasoning also indicates the necessity of establishing criminal growth; because justice requires that a person who has not yet reached the perfection of reason should not be punished (Falah Khariki and Hajitabar Firouzjaei, 2023). By proving this condition, the scope for family intervention in defending the child, providing an opinion about growth, and even playing a role in replacing the Haddi punishment is provided.
In the second part of the findings, the legitimate forms of family participation are examined. One of the forms is "mediation with the judge", which is considered legitimate based on the narratives "No one should intercede for someone after the matter has reached the Imam... But for a matter that has not yet reached the Imam, if you feel regret, intercede" (Ameli, 1409AH, 28/43). According to the analysis of jurists (Khouei, no-date, 1/225; Yazdi, 2012), in cases where the ruler has the power to pardon, the intercession of the family before executing the sentence is permissible.
The other form is "mediation with the victim", which is legitimate based on the principle of the correction of the intercessor and verses 9 and 10 of Surah Hojorat. The family can mediate between the victim and the juvenile delinquent in crimes related to people's right such as slander and theft (Najafi, 1362AH, 41/294) and, by concluding a peace treaty, pave the way for forgiveness and repair of the effects of the crime; as the Prophet Mohammad said: "The proof is the responsibility of the claimant and the oath is the responsibility of the defendant. Reconciliation among Muslims is permissible, except for reconciliation that makes something forbidden permissible or something permissible forbidden" (Sadough, 1413AH, 3/32). The third form of participation is "using Tazir punishment as an alternative to the limits (Hodoud)". In Imamieh jurisprudence, Tazir is not limited to flogging and includes any type of discipline such as imprisonment, financial fines, or reprimands (Allameh Helli, 1420AH, 5/349; Ameli, 1409AH, 28/269). By proving the legitimacy of non-corporal Tazir, the ruler can, with the help of the family, implement alternative educational punishments such as referring the teenager to educational centers, and the parents' obligation to supervise or care for him at home. This action is consistent with the wise people's practice of referring to experts (Hassanzadeh, 2010) and the cooperation of psychologists and counselors.
In addition, the findings show that imposing obligations on parents to fulfill educational duties is also one of the ruler's powers (a group of authors, 1428AH, 3/351). The ruler can obligate the family to take care of the teenager and provide the basis for reform within the family. This action is considered obligatory from the perspective of obligatory introduction and is consistent with the family's educational duties.
Conclusions
The present study shows that Imamieh jurisprudence has numerous capacities for attracting effective family participation in responding to juvenile Haddi crimes, and jurisprudential prohibitions are not considered absolute obstacles in this direction. Jurisprudential generalities on the subject of limits (Hodoud), such as the rule of Dar, the basis for mitigation in the limits (Hodoud), acceptance of repentance, and the requirement of criminal growth, all indicate the possibility of reducing criminal intervention and using the family as a means of reform and education. Family mediation with the judge and the victim, replacing Haddi punishment with educational Tazirat, and imposing corrective obligations on parents are among the formats that are consistent with Islamic principles. The results show that the judge can, relying on these principles, define and implement appropriate Tazir punishment in the context of the family; including handing over the child to the parents, using the institution of "home detention" or care measures with parental supervision. Family participation in this process, while maintaining criminal justice, provides the basis for the rehabilitation and resocialization of the juvenile. In conclusion, this study emphasizes that the permissible scope of family participation in Imamieh jurisprudence is broader than the current law and that legal reforms are necessary to exploit this capacity. It is also recommended that future research, by consulting with the great authorities of Taqlid and using dynamic jurisprudence, examine the scope of legitimacy of this expanded participation and the experiences of other countries in localizing family-centered solutions in response to juvenile delinquency.
Author Contributions
All authors participated equally in the design of the study, writing the article, and editing the final versions.
Data Availability Statement
Data available on request from the authors.
Acknowledgements
The authors of the research would like to thank the Vice Chancellor for Education and Vice Chancellor for Research of Allameh Tabataba'i University, who provided spiritual support for this study.
Ethical Considerations
Cases such as falsification of data, distortion of results, plagiarism, and any other unethical behavior have been strictly avoided in this study.
Funding
This study was conducted without receiving any financial support from government, commercial, or non-profit organizations.
Conflict of Interest
The authors declare that there are no conflicts of interest in connection with this study. In other words, there were no financial or personal interests that could affect the results of the study.
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