The Reflection of the Shi‘a Jurisprudence In the Penal System of the Islamic Countries (Case Study: the Condition of Continued Marriage In Realization of Legitimate Union)

Given the originality and dynamism of Imamia jurisprudence, its high capacity to influence the Building of legal systems can not be doubted. Although the legislative and judicial systems in Muslim countries have not been able to make good use of this legacy, steps have been taken in some cases. In the present study, which is organized in a descriptive-analytical method and in the form of a case study, the issue of Continuity of Marriage at the time of adultery and its place in the realization of Ehsan as an aggravating factor in punishment has been explored, an issue that Imamia jurisprudence, unlike all Sunni schools, has considered as one of the conditions for the Ehsan in men and women. Examining the Documents of Imamia and Sunni jurisprudence in this study shows the correctness and strength of Ehsan's dependence on such a condition that its identification can reduce the heavy punishment of stoning. The position in favor of the accused in Imamia jurisprudence has caused the legislature and the judiciary in some Sunni countries, such as Sudan and Yemen, to follow it. In addition, some other legal systems, such as Libya, the capacity to adopt such an approach is provided according to the duty of legal texts to refer to the more favorable positions of the authentic Islamic religions.