Journal of Research and Development in Comparative Law

Journal of Research and Development in Comparative Law

Feasibility of Re-enforcement of Hadd that Are Punishable by Death in Case of Incomplete Enforcement in Jurisprudence and Iranian Law

Document Type : scientific research paper

Authors
Mohammad Jafar Habibzadeh 1
Nastaran Aghaee 2
Mohammad Javad Darvishzadeh 3
1 Professor, Department of Criminal Law and Criminology, Faculty of Law, Tarbiat Modares University, Tehran, Iran
2 researcher at iranian law Researcher at the Iranian Law and Legal Research Institute and Masters degree in criminal law and criminology, University of Tehran, Tehran, Iran
3 Researcher at the Iranian Law and Legal Research Institute and Master degree in Islamic jurisprudence and fundamentals of law, University of Tehran, Tehran, Iran
10.22034/law.2024.2015010.1270
Abstract
Hadd is one of the types of Islamic punishments the amount of which is determined in certain crimes. This kind of punishment has different types, some of which lead to the death of the convicted individual. This article examines the question of whether, if a hudud punishment leading to death is executed but for any reason does not result in the execution of the convicted individual, the punishment must be carried out again. One of the scenarios of the silence of the ruling in Islamic Penal Code is the case where a hudud punishment resulting in death is executed once and for any reason does not lead to the death of the convicted individual. The findings of this research indicate that there is no explicit ruling on this matter in the current laws and regulations. To answer this question, five possibilities were proposed, and each was evaluated based on various evidences and documents.
These possibilities include: 1) Necessity of repeating the punishment 2) Prohibition of repeating the punishment 3) Necessity of repeating the punishment in cases of violating others' rights and not executing it in cases of rights against God 4) Necessity of repeating the punishment in cases of rights against God and not executing it in cases of violating others' rights 5) Necessity of repeating the punishment if the deficiency in the initial execution of the ruling is attributed to the convicted individual, and prohibition of repeating the punishment if the deficiency is not attributed to them. In this principle, if the fact that the convicted individual's life was not taken in the first instance is attributed to a trick or deceit employed by the convicted individual or the execution agents, the death penalty is carried out again. However, if the lack of the convicted individual's death occurs in an extraordinary manner, without any known reason and without any trick or deceit from the convicted individual or the execution agents, the re-execution of the death penalty is excluded. In this research, while dismissing the documents supporting the first four possibilities, the fifth possibility was proven with reference to multiple jurisprudential, legal, and foundational evidences.
Keywords
Keywords: punishment
death penalty
repetition of death penalty
hadd
retaliation
Rule of Dar’ (elimination)
hadd that are punishable by death

Subjects

Akhound Khorasani, S.M.K. (2012). Kifayat al-Ushul. Qom: Al al-Bayt Institute, 2nd edition. (in Arabic)
Ameli, M.M. (2017). Al-Qawa'id wa al-Fawa'id. Qom: Mofid Bookstore, 1st edition. (in Arabic)
Ameli, Z.D.A. (2002). Masalik al-Afham ila Tanqih Shara'i al-Islam. Qom: Islamic Knowledge Institute. (in Arabic)
Ansari, S.M. (1992). Al-Makasib. Volume One, Qom: Publications of Dar al-Dhakhair. (in Arabic)
Ardabili, M.A. (2010). General Criminal Law. Volume One, Tehran: Mizan, 23rd edition. (in Persian)
Bejnourdi, M.H. (1998). Al-Qawa’id al-Fiqhiyyah. Volume Three, Qom: Al-Hadi, 1st edition. (in Arabic)
Bejnourdi, S.M. (2022). Jurisprudential Principles. Volume One. Tehran: Orouj Institute, 3rd edition. (in Persian)
Fazel Lankarani, M. (2004). Jami' al-Masa'il. Volume Two, Qom: Amir Publishing, 11th edition. (in Arabic)
Goldouzian, I. (2013). Surviving a Conviction Means the Death Penalty is Not Enforced, interview with ISNA. Published on October 20, 2013, available at:
https://www.isna.ir/news/92072817152  (retrieved on May 8, 2024). (in Persian)
Habibzadeh, M., & Alipour, A. (2013). Prohibition of capital punishment in Imami jurisprudence. Journal of Studies in Islamic Law & Jurisprudence, 5(9), 43-66.  https://doi.org/10.22075/feqh.2017.1903 (in Persian)
Habibzadeh, M.J. (2023). General Criminal Law. Tehran: Mizan, 1st edition. (in Persian)
Habibzadeh, M.J., Mousavi Mojab, S.D., & Khorrami Iraqi, E. (2018). An Investigation into the Necessities of Applying the Rule of Dar' in the Execution of Punishments from the Perspective of Criminal Jurisprudence and Positive Law. Comparative Law Research, 22(3), 57-82. http://clr.modares.ac.ir/article-20-26500-fa.html (in Persian)
Hashemi Shahroodi, S.M. (1997). Researches in the Science of Usul. Qom: Al-Ghadir Center for Islamic Studies, 2nd edition. (in Persian)
HorAmeli, M.H. (2007). Wasail al-Shi'a. Islamic Library. Tehran: 8th edition. (in Arabic)
Islamic Information and Resource Center (2010). Glossary of Usul Fiqh. Tehran: Research Institute for Islamic Sciences and Culture, 1st edition. (in Arabic)
Islamic Penal Code Ratified 1991. (in Persian)
Islamic Penal Code Ratified 2013. (in Persian)
ISNA, (2013). The Most Famous Executed Individuals Who Came Back to Life, November 5, 2013. Available at: https://www.isna.ir/news/92080502140 (retrieved on May 8, 2024). (in Persian)
Jafari Langarani, M.J. (2009). Comprehensive Terminology of Law. Volume One. Tehran: Ganj Danesh, 1st edition. (in Persian)
Katouzian, N. (2011). Philosophy of Law. Volume Two, Tehran: Public Publishing Company, 4th edition. (in Persian)
Khabar Online (2013). The Mystery of Coming Back to Life After Execution, published on October 19, 2013. Available at: https://www.khabaronline.ir/news/318132 (retrieved on May 10, 2024). (in Persian)
Khansari, S.A. (2026). Jam’e al-Madarik. Qom: Ismailians, 2nd edition. (in Arabic)
Khuyi, S.A.Q. (1997). Misbah al-Ushul. Qom, Al-Dawari Library. (in Arabic)
Khuyi, S.A.Q. (2001). Foundations of Takmileh al-Minhaj. Babylon: Baghdad University. (in Arabic)
Kulayni, M.Y. (2006). Al-Kafi. Volume Seven, Tehran: Dar al-Kutub al-Islamiyyah, 4th edition. (in Arabic)
Makarem Shirazi, N. (1991). Al-Qawa'id al-Fiqhiyyah. Qom: Imam Ali ibn Abi Talib School, 3rd edition. (in Arabic)
Mashkini, A. (1992). Terms of Usul. Qom: Al-Hadi Publishing, 5th edition. (in Arabic)
Mir Mohammad Sadeqi, H. (2013). There is No Evidence That the Re-Execution of the Death Penalty is Ruled Out, interview with ISNA. Published on October 10, 2013, available at: https://www.isna.ir/news/92072817088 (retrieved on May 8, 2024). (in Persian)
Mirmohammad Sadeghi, H., Aghaee, N., & Darvishzadeh, M. J. (2023). The Impact of Mistakes on the Determination of Hadd Repetition Frequency. Journal of Criminal Law Research, 11(43), 41-45. https://doi.org/10.22054/jclr.2023.71505.2547 (in Persian)
Mirsaeedi, S, & Darvishzadeh, M. J. (2022). Case Study on the Death Penalty for Drinking Alcoholic Beverage in the sixth instance. Journal of Research and Development in Comparative Law, 5(16), 171-197. https://doi.org/10.22034/law.2022.1974425.1201(in Persian)
Mohaghegh Damad, S.M. (2010). Principles of Jurisprudence, Civil Section. Tehran: Center for the Publication of Islamic Sciences, 28th edition. (in Persian)
Mohaghegh Damad, S.M. (2013). Principles of Jurisprudence, Judicial Section. Tehran: Center for the Publication of Islamic Sciences, 12th edition. (in Persian)
Mohaghegh Karki, A.A.A. (1993). Jami' al-Maqasid fi Sharh al-Qawa'id. Qom: Al al-Bayt Institute, 2nd edition. (in Arabic)
Mohseni, H., & Davoodi, H. (2021). The Principle of Prohibition of Relying on One's Own Illegal Act in Claims and Defense, The Judiciary’s Law Journal, 85(116), 185-207. https://doi.org/10.22106/jlj.2021.130304.3507 (in Persian)
Montazeri, H.A. (1996). Studies on the Guardianship of the Jurist and Islamic State Law. Qom: Fikr Publishing, 2nd edition. (in Persian)
Mozaffar, M.R. (2015). Usul al-Fiqh. Qom: Dar al-Fikr, 5th edition. (in Arabic)
Najafi Jawaheri, M.H. (1983). Jawahir al-Kalam. Beirut: Dar Iḥya' al-Turath al-Arabi, 7th edition. (in Arabic)
Qeblei Khuyi, Kh. (2008). The Science of Usul in Fiqh and Positive Law. Tehran: Samt, 5th edition. (in Arabic)
Sabzevari, S.A.A. (1997). Muhtathab al-Ahkam. Qom: Office of Grand Ayatollah Sabzevari, 4th edition. (in Arabic)
Sabzevari, S.A.A. (1997). Tahdhib al-Ushul. Qom: Al-Manar Institute, 3rd edition. (in Arabic)
Sadr, S.M.B. (1997). Researches in the Science of Usul. Beirut: Dar al-Islamiyyah, 1st edition. (in Persian)
Saduq, M.A. (1994). Man la yahduruhu al-Faqih. Volumes Three and Four, Qom: Islamic Publications Office affiliated with the Society of Teachers of Qom Seminary, 2nd edition. (in Arabic)
Safi Golpaygani, L. (2006). Jam’e al-Ahkam. Volume Two, Qom: Office for the Organization and Publication of the Works of Grand Ayatollah Haj Sheikh Ali Safi Golpaygani, 4th edition. (in Arabic)
Saneie, P. (1992). General Criminal Law. Volume One, Tehran: Ganj Danesh, 3rd edition. (in Persian)
Sarikhani, A., & Aghabababani, E. (2014). A Research in Islamic Jurisprudences’ documents on Ta’ziri Execution. Journal of Criminal Law Research, 3(8), 9-32. https://jclr.atu.ac.ir/article_838_196.html (in Persian) 
Sistani, S.A. (1995). Rule of La Darar wa La Dirar. Qom: Library of Grand Ayatollah Sistani, 1st edition. (in Arabic)
Sobhani, J. (2009). Al-Wasit fi Usul al-Fiqh. Qom: Institute of Imam Sadiq (AS), 4th edition. (in Arabic)
Tasnim (2018). Exclusive Interview with the Man Who Came Back to Life After Execution. February 18, 2018. Available at:
https://www.tasnimnews.com/fa/news/1396/11/29/1658790 (retrieved on May 10, 2024). (in Persian)
The Holy Quran. (in Arabic)
Tusi, M.H. (2008). Al-Mabsut fi Fiqh al-Imamiyyah. Tehran: Al-Maktabah al-Murtadhawiyyah for Restoring Ja'fari Heritage, 3rd edition. (in Arabic)
Zeraat, A. (2007). General Criminal Law. Volume One, Tehran: Ghoghnoos, 2nd edition. (in Persian)
Zeraat, A. (2013). Brief Explanation of the Islamic Penal Code (Ratified 2013). Tehran: Ghoghnoos, 1st edition. (in Persian)