نشریه دین و قانون
سال دهم شماره 35 (بهار 1401)

Islamic fiqh has played a key role in the penal system of some Islamic countries. In this regard, Hanafi is one of the four traditional major Sunni schools (maddhab ) of Islamic fiqh that has been able to create a role in the legislative and judicial system of many countries, including Hanafi and other religions. In the form of a case study and using a descriptive analytical approach, the present research studies the criminal law of the three countries - Afghanistan as a Hanafi country, and Sudan and the United Arab Emirates (UAE) as two non-Hanafi countries. In Afghanistan and the UAE, Hanafi jurisprudence is not codified by law, but courts have jurisdiction to make decisions based on Shari'a mansoos punishments , although in practice in Afghanistan, unlike in the UAE, the permission to recourse to Hanafi fiqh in the criminal fields has been rather symbolic and has not been objectified. Conversely, in Sudan, the provisions of Hanafi fiqh have been crystallized into the enacted regulations and have taken on the aspect of the rights of the subject

According to the Article 286 of the Islamic Penal Code (1392 S.H.; 2014 A.D.), a person who has extensively committed one of the crimes against security, etc., and whose action has caused severe disturbance of order, is considered a corruptor on earth and deserves death penalty. Based on the article, even complicity in such a crime requires the execution of the partner(s) in crime. The present study attempts to answer various related questions and ambiguities. For example, according to one of the rules of criminal law, the punishment of the accomplice is less than the punishment of the perpetrator. The legislature has apparently deviated from this rule in a very important crime with a heavy punishment, that is, "corruption on earth", and has ordered the same punishment for the accomplice as equally as for the perpetrator. Should it be the case? Is the nature of the assistance in corruption on earth considered had or ta’zir ? Is the punishment of the accomplice that is the subject of Article 127 also applied in addition to the death penalty, or is there a rule of moral plurality? In other word, is the perpetrator sentenced to only one punishment, i.e., the death penalty? What is the ruling if the action of the accomplice is extensive, but the action of the perpetrator is not? Through analytical method and library data collection tools, this paper analyzes and explains the accomplice in corruption on earth. The most important achievement of the study is that, first of all, by the word ‘assistance’, the article 127 means the main perpetrator, that is the head or leader, and if so, it is consistent with Article 130, and many problems will be eliminated. Secondly, from different aspects, it is necessary to remove the word "accomplice". Thirdly, if either the action of the accomplice or that of the perpetrator is not extensive, none of them will be considered corruptors on earth

Nafy-e balad[1] Punishment is one of the four punishments intended for muhareb[2]; However, there is a difference of opinion among foqaha (Islamic Jurists) regarding the duration of nafy-e balad, and thus various theories have been proposed regarding this duration, such as until the end of life, until the time of repentance, one year, and at least one year while continuing to the maximum time when repentance is performed. By referring to the Islamic sources and fiqhi texts in an analytical and ijtihadi method, and attempting to find the best theory among them, the present article studied the evidences of each of the four theories and found the evidences of none of these theories sufficient. Finally, resorting to specific evidences such as al-sahihah[3] of Barid ibn Mu'awiyah and general evidences such as the al-mu’tabarah[4] of Hafs ibn Ghias, the study suggests that determining the duration of nafy-e balad is at the disposal of hakem shar'[5], and considering the circumstances, he will determine its duration.

At the time of deliberate murder, what can be deduced from the Quranic verses and Islamic hadiths, as well as ijma’[1], is that qisas-e nafs is a right for the owliya’-e dam[2]. In Islamic fiqh, some conditions have been considered for the realization of the rights of the victim. Yet, a question raises here that if there is any possibility of tab’eiz in qisas-e nafs, so that the valiyy-e dam retaliates partially; i.e., he or she retaliates some part of qisas, or in other words does not take the life of the murderer (i.e., total retaliation); but, in return, by implementing retaliation partially (for instance by cutting one organ like the leg of the murderer) he or she forgives the murderer not to go under capital punishment, or is ready to compromises under some certain conditions. This is an issue that has not been directly mentioned in the Islamic texts and narrations, nor in the jurists’ opinions of various Islamic schools. According to one view among contemporary foqaha[3] in qisas-e nafs, tab’eiz is by no means acceptable since soul is per se a single entity by essence that after the creation of the body organs, the soul has been breathed into them and such soul is not like the body that has independent components or organs. However, relying on the principles, rules and reasons governing the issue of qisas, including the right of qisas, compromisability of qisas, the necessity of saving one’s life, advisability of forgiveness, inclusion of the principle of choosing the lesser of the two evils, etc. one can claim that qisas is a right, and since one can forgive his/her right of qisas completely, he /she can also forgive some parts of his/her right of qisas, or the right of qisas can be waived by the agreement of the parties. To conclude, it seems that one cannot say that there is no possibility of tab’eiz in qisas-e nafs, and owliya’-e dam can be satisfied through compromise with less amount of punishment than blood vengeance, or execution as capital punishment.

As one of the manifestations of civil society, non-governmental organizations (NGOs) must contain the inherent characteristics of the society. In general and based on their existence philosophy, these organizations, on the one hand, must identify the needs and interests of individuals in society, and on the other hand, reflect and announce the identified needs and interests to the government as the responsible institution in meeting them. The relationship of NGOs with the government can be considered as ‘civil society organizational participation’. NGOs’ organizational participation can be divided into three dimensions of participation in law-making, law enforcement and monitoring the law. In line with the philosophy of NGOs, the foundation of effective participation of NGOs requires adherence to the structure of the institutions and the competencies of these organizations to the main components of transparency, including accountability and free access to information. Taking advantages of library resources and through descriptive-analytical study, the researchers seek to examine the transparency-based non-governmental organizational participation in the Iranian legal system. The results of this study contain the impression that this model of organizational participation of NGOs in the Iranian legal system can be observed and interpreted directly or indirectly.

Islamic city and village councils are among the institutions recognized in the constitution. Although these councils are a symbol of people's participation in the management of local affairs and are considered a step towards decentralization, they did not enter the country's legal system until years after the adoption of the constitution. Since the formation of these councils, there have always been discussions and controversies about the scope of their powers and duties. The important question, then, is “What is the functional nature of Islamic city and village councils”? Since the above institution has been proposed by the legislator of the constitution, in order to answer this question, the principles of the constitution, the detailed negotiations of the MPs as experts taking part in the final review of the constitution and the views of the Guardian Council as an institution responsible for protecting the constitution should be examined. To do so, using descriptive analytical method, the study concluded that within the constitution and the detailed negotiations of the members of the above parliament, the two powers of "administration of state affairs" and "supervision" are considered for these councils; however, the Guardian Council's approach to identifying these two powers has not been consistent, and in many cases, has voted to monopolize the powers of these councils in the category of "supervision."

For some time now, Covid- 19, which is caused by a new mutated virus from the family of Coronaviruses, has plagued the world and caused significant human and economic damage to countries. Since Covid- 19 is a contagious disease that spreads easily from an infected person to others, the question arises as to “if a person with Covid- 19, despite observing the initial symptoms, conceals his illness and communicates with a healthy person or persons without observing the health tips and causes the spread of this disease to them, and as a result of this infection, human and financial losses are inflicted on the victim, will he be considered responsible for these damages? In case, his responsibility is proven, what is the scope of this responsibility? It seems that according to the rules of jurisprudence and Article 1 of the Civil Liability Law, concealing the disease by the infected person, because it causes personal or financial damage to the victim, is responsible for compensation for losses. Also, the scope of this responsibility, according to jurisprudential arguments, includes non-profit damages, loss of benefits, moral damages, as well as damages for disability.