Critique and Review of the Guardian Council's Theory on the Non-Determination of Penalties for Fraud

Fraud is a crime that directly involves the property of individuals. Those who deceitfully acquire the property of others with their consent through trickery and fraud are considered fraudsters. Fraud is among the crimes characterized as a type of "eating money unjustly" which, according to the principle "do not consume each other's wealth unjustly," is deemed a sinful act. In jurisprudential texts, fraud is referred to as "cheating" and the fraudster as "trickster". Following the draft law on the intensification of penalties for bribery, embezzlement, and fraud presented to the Islamic Consultative Assembly on September 19, 1985, and the subsequent establishment of punitive measures for such acts, this matter was contested by the Guardian Council. The Council argued that the determination of penalties is typically and somewhat at the discretion of the ruler and must fall below a certain threshold; therefore, establishing a penalty for fraud was not accepted by the Guardian Council. This article aims to critique and examine the Guardian Council's theory regarding the non-determination of penalties for fraud. This examination is conducted through an analytical-descriptive method, asserting that the act of fraud, which results in the infringement of others' rights, is punishable based on the principles of "no harm" and "eating money unjustly". The determination of such penalties is the responsibility of the ruler, and in the absence of the infallible Imam (p.b.u.h), it lies with the legislative authority based on the necessities of the Islamic community and the preservation of its foundations. It appears that the lack of clarification of the esteemed jurists of the Imamiyah sect and the brief references in a few lines of verses and narrations regarding eating money unjustly have led the respected jurists of the Guardian Council to reject the criminalization of the Assembly's resolution, while the author aims to substantiate this claim.