فصلنامه حقوق اسلامی
سال سیزدهم شماره 4 (پیاپی 51، زمستان 1395)

One of the classifications of criminals, which is of importance in specifying reactions against them, is classifying them into rich people who are of high social status (called white collars) and weak and poor criminals (blue collars). To confront crimes committed by the former ones, who have capability of committing more dangerous crimes, special solutions should be found. To confront such criminals, we need a comparative penal policy, both in terms of form and content. The present article discusses reactions which should be adopted against the former group according to Imām ‘Ali. According to him, after taking fundamental, social, and cultural measures as well as making control and inspection, reactions against crimes committed by white collars should be serious, severe, and decisive. In Imām Ali’s words, this classification has been made by making uses of terms such as mustakbar and mustad‘af, powerful and weak, the ruling class and peasants, aristocrats and lower social class. One the benefits of such a classification is that not only crimes committed by the weak and nonsignificant crimes but also crimes committed by white collars and those who are of high social status can be prosecuted without negligence.

‘Ifaf, in the sense of chastity, is not only a moral principle, but also contains many juridical (fiqhi) effects. In general, functions of the principle of chastity in family jurisprudence and law may be classified into “positive” and “negative”. In its positive function, it can make marriage obligatory (wajib) and it may makes fulfillment of sexual needs of the wife necessary for her husband. In its negative function, it can prevent divorce. Although, in some minor parts of this issue, there is no juridical consensus, from sources of Islamic Jurisprudence it can be inferred that keeping one’s chastity and preventing danger of unchastity can be efficient as a juridical rule.

Convict’s right to self-determination in a penal case is a privilege granted by a judicial authority according to laws and after fulfilling particular conditions to the convict and based on which the convict specifies his fate in the penal case. In the Islamic Law as well as in Iranian Law, this right has a particular place and, in binding and guiding statements of human rights and UN rules, it has been mentioned as well. The present article aims to discuss foundations as well as effects of granting such a right of self-determination to the convict fate in a penal case and challenges faced by it. Thus, to attain their goal, the authors adopt a descriptive-analytic methodology to discuss and explain foundations and general, penological, and craniological arguments for using such a right and its effects in trials. The authors come to the conclusion that this way of judging may be used in the context of most penological and criminological theories. Granting identity to the convict, accelerating penal proceedings, preventing [unnecessary] penalties, and reducing making uses of sanctions for execution of such penalties as well as reducing costs borne by the system of penal justice, increasing punctuality in proceedings, and increasing people’s trust in judicial system are among benefits of granting such a right to the convict.

Contractual obligations may be fulfilled with delay or not fulfilled at all, and this is followed by losses borne by the other party. Breach of contractual obligations is accompanied by many problems one of which is the relation between the responsibility produced by breach of the contract and non-contractual responsibility. In this regard, some scholars believe in plurality of responsibility and some others have adopted the theory of unity of responsibility. The present article mainly aims to discuss the relation between automatic guarantee and contractual guarantee to prove originality of the former. As a result of this discussion, from a juridical point of view, the author discusses why the issue of expectancy damages caused by breach of the contract is not accepted. It seems that the most important reason behind this nonacceptance is the idea of guarantee and the conception of property. As a substantive edict, the idea of guarantee rules all branches of jurisprudence including contracts. According to the well-known theory, even though it is unlawful to breach contractual obligations, breacher's guarantee may be accepted as long as the rules of automatic guarantee may be executed. As a result, if conditions for automatic guarantee cannot be fulfilled, breach of contract does not by itself create a bond for the breacher.

Many Islamic rulings are to protect people's lives and this shows the importance of human being's life for God- the Exalted. Nevertheless, in Islamic countries, there are many death penalties. Are numerous death penalties, in the Islamic societies, based on teachings of Islam? To reply the above question, the Ijtihadi arguments should be inevitably studied and, based on study of the Book, Sunnah, and viewpoints of Muslim jurisprudents, the well-known rule of “caution in issuing verdict for death penalty” should be found according to which issuing each and every verdict or taking any action which may lead to death of someone should be based on firm proof or conclusive presumption and in other cases, such a verdict should be issued cautiously and free of any suspicion. And this shows that there are certain restrictions for issuing death penalty in Islam. Despite importance of this rule, however, it has not been independently discussed in legislation and execution of death penalty. On the other hand, after approval of the Islamic Penal Code (1392/2013) and other special penal laws as well as increase in cases of death penalty, it seems that the legislator has not paid attention to this rule as much as he should. Thus, while discussing its arguments, foundations and scope, the authors have mentioned cases of discrepancies between laws and this rule and attached much importance to it in legislation.

The rule of blood-money for bone contusion says: “blood-money for contusion of bone of an organ, if it is not cured or cured incompletely, is one-third of the blood-money for that organ; and if it is cured completely, is four-fifth of the blood-money for contusion (in other words, it is fourfifth of the one-third of the blood-money for that organ). This is one of the several rules concerning injuries of bones and, in terms of fatawa, it is well-known. It has been mentioned in the Islamic Penal Codes of 1370/1991 and 1392/2013 as well. While explaining the a.m. rule and some of its consequences, authors have discussed its evidence and documents- and in particular the chain of transmitters for the ḥadīth of Zarif Ibn Nasih which is the most important evidence for this rule. Finally, they have objected the evidence and documents of the rule and concluded that blood-money for contusion of bone of an organ, if there is a particular document for that organ, should be paid and, if there is not such an document, mulct should be paid instead of bloodmoney.