جستجوی مقالات مرتبط با کلیدواژه "negligent ignorance" در نشریات گروه "فقه و حقوق"

Ignorance is one of the complex and challenging topics in islamic jurisprudence and criminal law. Article 144 (in the chapter of the conditions of criminal responsibility) and Article 155 (in chapter of the impediments to criminal responsibility) refers to ignorance of fact. Despite the allocation of separate legal articles to these two types of ignorance, the fundamental differences between them and the practical effects of these differences in criminal law are still accompanied by ambiguities that have led to disagreements in the interpretation of the law. In ddition to statutory law, these two types of ignorance are also the source of disagreements in Islamic jurisprudence. A comparative study of jurisprudential and legal views raised in this field requires a comprehensive research study. Such a study clarifies the differences between these two types of ignorance in terms of nature, conditions of realization and effects. The explanation of these differences guides the judges, lawyers and parties of the case to adopt a more specific and coherent approach and process, when facing the claim of ignorance of the accused. The present research, by using related library resources and applying the descriptive-analytical method, has listed the important basic and practical differences between ignorance of fact and ignorance of law. Disagreement on the subject, the cause of its emegence, the need for research and the ruling of guidance of the ignorant as the root and fundamental differences, and the disagreement in the measurement criterien and the burden of proof, the application of the presumption of innocence or caution in the prohibitive doubts, the possibility or impossibility of applying jurisprudence rules, reliance on Hadith al-Raf in applying the presumption of innocence, the impact of ignorance of fact and law on homicide in belief of being Mahdoor Al-Dam and realization of crime and criminal responsibility are categorized as practical distinctions.

Dubiety, from the perspective of Islamic criminal jurisprudence and positive law is among essential fancies but it has a relatively ambiguous nature and is applied in case of depenalization. According to the general opinion of jurists, accreditation of dubiety and its impact on punishment is a necessary and obligatory task. However, there is diversity in their views on what is the criterion of repelling dubiety or in assessing the strength and weakness of the dubiety, to the extent that in some cases, it has made the work difficult for judicial experts.Examining the views of Islamic jurists regarding the interaction between the institution of dubiety and components such as "negligent ignorance" and " ignorance caused by fault" and identifying the addressee of the rule of repellence, paves the way for determining the criterion of dubiety so that the general model and the idea of ​​"dubieties" are established on the basis of dynamic jurisprudential and legal teachings. Using a descriptive method based on inductive analysis of particulars, following the inferential method relying on literal and Usuli rules, this research intends to move from particular propositions to universal propositions. As far as the function of the repellence rule is concerned, there is no difference between the situation of dubiety concerning the precept or dubiety concerning the instance and the state of a belief contrary to the reality and dubiety is a broad fancy and imagination that includes the cases of knowledge and certainty and conjecture, even where there exists a principle or authorized conjectural proof denoting religious prohibition. Another outcome of this research is that if dubiety and imagination, in the mind of the perpetrator who is aware of the religious precept, provoke rational personal conjecture, although invalid from the perspective of Sharia, as to the permissibility of a behavior, it can constitute a basis for waiver of Haddi penalty.