Manifestations of the conflict of qassama with the principle of innocence in the islamic law and the feasibility of adjusting the guarantee of its implementation in the light of scientific and jurisprudential evidence.

Subject Areas :

valiollah ansari ¹ , soleyman jadidi saray ² , kiyoumars Darnakla ³

1 - Assistant Professor, Department of Criminal Law, Faculty of Law and Political Science, North Tehran Branch, Islamic Azad University, Tehran, Iran
2 - PhD student in criminal law and criminology, Department of Law, Gorgan Branch, Islamic Azad University, Gorgan Branch, Iran
3 - Professor, Department of Law, Faculty of Law and Political Sciences, Mazandaran University

Received: 2022-10-30 Accepted : 2023-01-06 Published : 2023-02-20

Keywords: oath, Conflict, Principle of innocence, Loth, Presumption of Guilt,

Abstract :

Compurgation is one of the ways of proving of crime or presumption of innocence that is referred in the case of realization of contamination or lack of other evidence. Strong suspicion contamination is obtained for the judge (court) regarding the truth of the claimant's claim. Compurgation decree is not mentioned in Holy Quran and it is based on the narrations and hadiths and its philosophy in Islam is protecting the people blood and maintaining public discipline for prevention of murdering and blood loss. The majority of Imami and public jurists believe that compurgation is establishment decree in Islam. There are different opinions among jurisprudents on the scope of inclusion and it's proving power so that Imami jurists believe in compurgation as the reason for proving crime (intentional or non-intentional) or crime on organs for presumption of retribution or blood money or innocence of the criminal. On the other hand, the presumption of innocent is one of the fundamental principles of Islam and common law that according to it, innocent of the criminal is assumed and the accused has no duty to provide reason for proving being innocent and the judge shall prove the reasons for accusations without any reasonable doubts. Regarding compurgation that its prerequisite is contamination, there manifestations of conflicts in some features of compurgation in Islamic jurisprudent and punishment law such as manner of proving compurgation and the origin of it, proving contamination and manner of proving the kinship and etc. with presumption of innocence.