An overview of the jurisprudential principles of change and order in relation to the quality of the punishment of the enemy

Subject Areas : Criminal jurisprudence

Mohamadebrahim Mojahed ¹ , Ahmad Abedini najaf abadi ² , Javad Panjehpour ³

1 - .PhD Student in Jurisprudence and Fundamentals of Islamic Law, Department of Human sciences and Law, Isfahan (Khorasgan) Branch, Islamic Azad University, Isfahan, Iran.
2 - . Professor of seminary and university, supervisor (responsible author), Department of Human sciences and Law, Isfahan (Khorasgan) Branch, Islamic Azad University, Isfahan, Iran.
3 - . Assistant Professor, Faculty of Jurisprudence and Fundamentals of Islamic Law, Department of Human sciences and Law, Isfahan (Khorasgan) Branch, Islamic Azad University, Isfahan, Iran.

Received: 2021-05-13 Accepted : 2022-08-15 Published : 2022-03-21

Keywords: Arrangement, Keywords: change, Moharebeh, Quality of punishment,

Abstract :

Review:A brief look at the jurisprudential history of the debate We came across two promises of change and order. Because sometimes the evidence leads to the abandonment of the primary appearance and the removal of iodine from the main literal meaning, in which case the primary meaning is stagnant, and the word acquires a secondary meaning. Like the repeated repetition of the word "he" in the verse of Moharebeh. Another example is what has been said: Citing the two verses of expiation of oath and expiation of Hajj has made the above-mentioned cases optional in the case of the agent of Bahma, therefore, this word also has an optional meaning in the punishment of the enemy! Sheikh Tusi in his book Khalaf rejects this argument and says: But where there is atonement, there is a journey from fear to violence. Therefore, the analogy of "him" in expressing the four punishments to the expiation of swearing and Hajj is completely unjustified. As for the Sunni jurists, Shafi'i, Hanafi and Ahmad have considered the preferred word as the order, and Lee Malik has believed in the optional change which is related to the same word. In total, in the study, eight reasons were presented for preferring the promise of order over choice. As a result, Saeb's promise on how to apply the four punishments is order. In addition, reflection is inferred in the narrations of the chapter, these two promises do not have a substantial contradiction with each other, even the promise of change corresponds to the order and proportionality of the crime with the punishment. So the legitimacy of the promise of order is proved. It is worthwhile for the criminal legislator to try to amend Article 283 of the Penal Code, based on the promise of order.