Criminal Law Doctrines - Articles List

Research Article

The Scope of the Bones of “Kaʿb” and “Qadam” and Examination of al-Dīya (Arabic: الْدِّیَة) for Injuries From the Perspective of Jurisprudence, Law, and Forensic Medicine

m a; h r

Volume 20, Issue 26 , November 2023, Pages 5-28

https://doi.org/10.30513/cld.2023.4932.1797

Abstract

The bones of the “Kaʿb” (Arabic: اَلْکَعْب, lit.: ankle) and “Qadam” (Arabic: اَلْقَدَم, lit.: The lower extremity of the leg below the ankl ... Read More The bones of the “Kaʿb” (Arabic: اَلْکَعْب, lit.: ankle) and “Qadam” (Arabic: اَلْقَدَم, lit.: The lower extremity of the leg below the ankl or foot such as: tarsal bones, metatarsals, and phalanges or toes), based on jurisprudential-narrative texts have special rulings (Arabic: أحْکام, romanized: aḥkām, lit.: rulings, plural of ḥukm “حُکْم”). The research on the scope of the inclusion of “Kaʿb” and “Qadam” bones is in order to identify the examples of the rulings of Dīya (Arabic: دیة; pl.: dīyāt, Arabic: دیات) for bone injuries caused to the titles mentioned in jurisprudential-narrative texts. The “Qadam” in an extensive definition, includes the bones after the ankle joint, which includes 26 bones. In general, the plantar bones, or in other words, the bones after the ankle joint, only the range of inclusion of the toe bones is definitively known, and the other plantar bones are in the range of the words of the heel or foot. In the set of bones in the foot or, in other words, the bones after the ankle joint, only the range of the toe bones is definitively specified, and the other bones of the foot fall within the scope of the terms “Kaʿb” and “Qadam”. Considering that al-ḥaqīqatu ash-sharʿiyya (Arabic: اَلْحَقیقَةُ الْشَّرْعیّة, lit.: It was established for a religious meaning during the time of the Prophet of Islam) and al-ḥaqīqatu al-mutisharriʿa (Arabic: اَلْحَقیقَةُ الْمُتِشَرِّعَة, lit.: The concepts or principles that have been established within Islamic jurisprudence or Sharīʿah) were not meant in the context of “Kaʿb” and “Qadam”, it was concluded, based on the texts of lexicon and al-fiqh (Arabic: اَلْفِقْه, lit.: “jurisprudence”) that “Kaʿb” is the same as the ankle and all the 26 bones after the foot joint, except for the 14 bones of the toes, which are included in the scope of the word “Qadam” and its related rulings, including the amount of blood money determined for the injuries inflicted on each of the bones of the “Kaʿb” and “Qadam”. Although the dīya (blood money) for certain bones, including the clavicle, has been considered by the legislator, the subject of this article has remained unaddressed despite the existence of narrative texts. This article examines the narrative texts, jurisprudential texts, legal texts, and forensic procedures in a library manner and presents legislative suggestions based on the results.

Research Article

Challenges Faced by the Avengers of Blood (Relatives of the Victim) in Exercising the Right to Qiṣāṣ

Mohammad Farajiha; Abbas Moradi

Volume 20, Issue 26 , November 2023, Pages 29-74

https://doi.org/10.30513/cld.2024.5005.1814

Abstract

The right to punish the criminal in the form of qiṣāṣ (Arabic: قِصَاص, lit. “accountability, pursuing, or prosecuting”) has been fully granted to the heirs of ... Read More The right to punish the criminal in the form of qiṣāṣ (Arabic: قِصَاص, lit. “accountability, pursuing, or prosecuting”) has been fully granted to the heirs of the victim, who are the avengers of blood (relatives of the victim), following the revolution and the change in the legislator’s approach. This aligns with the Islamic penal system and the protection of victims. In contrast, prior to the Islamic revolution, the public aspect of intentional homicide (Arabic: قَتْلُ الْعَمْد, romanized: qatl al-ʿamd) completely prevailed over its private aspect. This action is considered as a kind of forgivable murder, assigning the right of punishment to the victim’s family, and thus strengthening the role of the victims of intentional murder in the criminal process. This action means assigning all the responsibilities resulting from the decision making and execution of the sentence to the avengers of blood. The main question of this article is: What effects and consequences does granting the right to qiṣāṣ to the blood avengers and involving them in the criminal process have? To answer this question, 18 cases of intentional murder were studied using the method of document analysis during the period from 1996 to 2021. Additionally, with the use of in-depth interviews, individual and group discussions were conducted with 23 family members of the victims and 7 active participants in the investigation of murder cases, including judges, lawyers, and individuals involved in mediation for murder cases. The findings of this research indicated that while granting the right of qiṣāṣ to the relatives of the victim can ostensibly provide solace to the victims, in practice, it may become a factor in creating conflict between the two families or within the local community. This situation can make the judicial process emotional, threaten the safety of the victims’ families, and result in increased psychological pressure, ultimately delaying their treatment and psychological healing. In this regard, it is necessary to take certain measures to overcome these challenges and reduce the destructive effects of this grant. These measures include systematizing restorative processes and consulting with the victim’s relatives to obtain consent, criminalizing any threats or harm to the victim’s family by the offender and their associates as a public crime against judicial justice, minimizing the presence of blood avengers (the victim’s relatives) and physical confrontations between the parties involved in the lawsuit, and removing legal requirements (operation of law) for the active participation of blood avengers or their representatives in the trial and execution of the sentence.

Research Article

Feasibility of Proving the General Aspect of the Crime by Compurgation

ensieh salimi; Jalaledin Ghiasi

Volume 20, Issue 26 , November 2023, Pages 75-98

https://doi.org/10.30513/cld.2024.5400.1896

Abstract

Qassāma (Arabic: اَلْقَسّامَة, lit.: compurgation, tribal oath consists of 50 men of the tribe swearing to being right) is one of the types of evidence in substantiation ... Read More Qassāma (Arabic: اَلْقَسّامَة, lit.: compurgation, tribal oath consists of 50 men of the tribe swearing to being right) is one of the types of evidence in substantiation of criminal claims that is specific to crimes. Among jurists, there is a difference of opinion about the possibility of punishing the perpetrator in terms of the general aspect of the crime, assuming that the principle of intentional crime is proved through qassāma. Some have not differentiated between qassāma and other evidence, considering it possible. Some have also considered the punishment of the perpetrator to be contrary to the principle of innocence (Arabic: أصالَةُ الْبَرائَة, lit.: presumption of innocence) and to be in favor of the defendant. This difference of opinion has led to the issuance of a unified legal opinion (uniform judicial precedent), stating that it is not possible to prove the general aspect of the crime in this case. The present research, using a descriptive-analytical method and a critique of existing views, states that the legislator considers the legal consequences of intentional behavior in cases of establishing criminal liability for the offender, without differentiating between qassāma and other evidence. One of these consequences is the taʿzīr (Arabic: اَلْتَّعْزیر, lit.: discretionary punishment) prescribed for crimes against oneself in cases of obstruction of qiṣāṣ (Arabic: قِصَاص, lit. “accountability, pursuing, or prosecuting”), as mentioned in Articles 612 and 614 of the Penal Code. The absoluteness (Arabic: إطْلاق) of these articles also confirms the absence of the aforementioned difference. Therefore, it is possible to prove the general aspect of the crime regardless of the type of probative proof. The proof of this aspect is not based on the evidence for qassāma; rather, it relies on considerations such as the legislator’s expediency in establishing the public aspect of the crime in intentional offenses and the repercussions on the perpetrators of these crimes.

Research Article

A Jurisprudential and Legal Analysis of the Evidence for the Rulings on Betting in Emerging Games Without Gambling Instruments

M A

Volume 20, Issue 26 , November 2023, Pages 99-124

https://doi.org/10.30513/cld.2024.5404.1884

Abstract

Betting or wagering is an act that occurs in competitions and games, and jurists (Arabic: فُقَهاء, romanized: fuqahāʾ, singular: faqīh, Arabic: فَقیه) have considerable ... Read More Betting or wagering is an act that occurs in competitions and games, and jurists (Arabic: فُقَهاء, romanized: fuqahāʾ, singular: faqīh, Arabic: فَقیه) have considerable disagreement regarding its nature and rulings. Some consider any type of betting to be gambling (Arabic: اَلْقِمار), whether it is with specific gambling tools such as backgammon and chess, or with other tools. Others believe in the substantive (essential) difference between the two and the commonality of positive corruption (void or invalid) and imperative prohibition, while the third group has also questioned its imperative prohibition. The issue of this research is to analyze the evidence of imperative and positive rulings (aḥkām, Arabic: أحْکام “rulings”, plural of ḥukm “حُکْم”) in competitions where gambling tools are not used but betting has been introduced. This is particularly relevant with regards to the emerging examples and purposes that shape this type of competition, such as car racing and martial arts. This research has investigated the opinions and documents (grounds) of jurists, especially in the last two centuries, with a descriptive-analytical method, and has concluded that apart from differences in words and evidences, other factors are involved in creating disagreements and doubts in rulings, such as the lack of distinction between imperative and positive rulings in previous jurisprudential texts, the belief in the correlation between these two rulings in the literature of non-contemporary jurisprudents, and raising this issue in jurisprudence with a variety of interpretations and vocabulary. In addition, the development of the circle of emerging exceptions according to the criterion of rulings, the analysis of the change in the legislator’s view of this category, and the expression of rational specificities and the necessity of considering them in the betting are other innovations of the present study.

Research Article

The Reasons for the Presence of Drugs and Psychoactive Substances in Prisons

A S

Volume 20, Issue 26 , November 2023, Pages 125-152

https://doi.org/10.30513/cld.2024.5497.1897

Abstract

The issue of “narcotics and psychoactive substances in prisons” is one of the most complex problems that highlights the failures of policymakers, who have consistently tried ... Read More

Research Article

Rule-Based Necessity Policies in Criminal Justice Implementation

Mohammad Mirzaei

Volume 20, Issue 26 , November 2023, Pages 153-184

https://doi.org/10.30513/cld.2024.5506.1898

Abstract

Criminal policy is the approach of crime control and the adoption of appropriate legislative, judicial, and executive tactics and strategies by criminal policy actors. Sometimes, it ... Read More Criminal policy is the approach of crime control and the adoption of appropriate legislative, judicial, and executive tactics and strategies by criminal policy actors. Sometimes, it is necessary to rapidly adjust criminal policy measures in response to specific circumstances as they arise. However, these changes may conflict with existing judicial and legislative measures during implementation. This requires the regulatory flexibility of criminal policy in emergency situations (Arabic: إضْطِرار, romanized: ʾiḍṭirār). This article, which is descriptive and documentary in terms of its applied purpose and method of implementation, explains the foundation and application of the rule in executive criminal policy. After analyzing the rule of urgency from jurisprudential, legal, and criminological perspectives, it discusses the systematic use of its capacities to address the new challenges (disturbances) in executive criminal policy. It also evaluates the selection of necessary measures for actors in the criminal justice system, especially the executive actors, in the operational arena. Although this rule applies to most deviations (Arabic: Inṣirāfāt) from the absoluteness of foundational principles or accepted criminal laws, the necessity for exceptional and special circumstances requires the regulation of exceptional policies, strategies, and tactics, particularly in the field of implementation. This can be interpreted as differential criminal policy, which manifests in various forms, such as deviation from the principle of “legitimacy of the evidence and method of obtaining it” in the processes of detection, investigation, and prosecution, or the “suspension or limitation of civil rights in preventive measures before or after a crime,” or the “use of force by executive actors in pre- and post-criminal actions,” among others. It should be emphasized that the adoption of these measures to prevent anarchism and the violation of individual rights by the government requires regulation and must adhere to the general principles of legislative policies and be based on religious teachings and considerations, such as “the principle of dignity, the principle of equivalence and balance, the principle of compliance with the laws, goals, and objectives of the Sharia, logical justification, permitting ḥarām in ʾiḍṭirār (necessity) situations, and permitting ḥalāl.

Research Article

The Basics of International Criminalization of Ecocide

Mostafa Fazaeli; ali mashhadi; Seyyed Hassan Eslami Ardakani; Sharareh َAbtahi

Volume 20, Issue 26 , November 2023, Pages 185-220

https://doi.org/10.30513/cld.2023.5508.1900

Abstract

Ecocide refers to the extensive damage or destruction of ecosystems within a specific territory. In a specific legal sense, it refers to the destruction of the environment in pursuit ... Read More

Research Article

Criminal Protection for Consumers Against Corporate Crimes: Challenges and Solutions

sara Meshkin Sanjabi; jalil omidi

Volume 20, Issue 26 , November 2023, Pages 221-254

https://doi.org/10.30513/cld.2024.5520.1906

Abstract

The legal system of any country should establish a comprehensive criminal policy in alignment with the rapid developments in the methods of committing corporate crimes. An essential ... Read More

Research Article

The Future of Criminal Procedure in Iran After the Approval of the “Bill on the Establishment of Special Police for Children and Adolescents”

A N

Volume 20, Issue 26 , November 2023, Pages 255-288

https://doi.org/10.30513/cld.2024.5614.1924

Abstract

In the Code of Criminal Procedure of 2014, for the first time, the differentiation of the special police for children and adolescents has been considered through Article 31 and the ... Read More

Research Article

Requirements for the Effective Participation of Children and Adolescents in Court Hearings: A Comparative Study of International Standards and the Penal System of Iran

Morteza Rasteh; Hassan ali Moazen zadegan; Rajab Goldust Joybari

Volume 20, Issue 26 , November 2023, Pages 289-332

https://doi.org/10.30513/cld.2024.5738.1945

Abstract

Since the right to a fair trial is considered a fundamental component of the criminal justice system in a democratic society, children and adolescents accused of violating criminal ... Read More

Research Article

The Impact of Preliminary Investigation Stage on the Personality Record

Saeed Ghaedi

Volume 20, Issue 26 , November 2023, Pages 333-378

https://doi.org/10.30513/cld.2024.5755.1948

Abstract

The Criminal Procedure Code enacted in 2014 has sought to take an important step towards expanding the scope of the principle of individualization by providing for the establishment ... Read More The Criminal Procedure Code enacted in 2014 has sought to take an important step towards expanding the scope of the principle of individualization by providing for the establishment of personality record during the preliminary investigation (inquiries) stage, thereby aligning judicial decisions with the personality of the accused. The formation of a personality record is important in the preliminary investigation stage because the prosecutor’s office authorities take into account the internal, physical, familial, and social components of the defendant, find out the motives and causes affecting the commission of the crime and issue the best decision in accordance with the personality of the accused. The present study, using a descriptive-analytical method and collecting the required information using library studies and emphasizing the approach of Iranian judicial precedent to the application of personality record in criminal investigations, has attempted to influence the personality record in the preliminary investigation stage. The findings of the research show that it is possible to benefit from the personality record in all decisions, components, and different stages of preliminary investigations, which begin with the process of summoning and arresting, the middle of which is with the arraignment, questioning of the accused, issuance of an order and judicial supervision, and end with the final order and indictment. However, the prosecution and investigation authorities seek to make minimal use of the personality file by restricting it, with the explanation that, on the one hand, before the issuance of a criminal protection order, the basis of the personality file is not formed, and as a result, judicial actions and decisions are devoid of influence up to this point. However, the prosecution and investigation authorities seek to make minimal use of the personality record by restricting it, with the explanation that, on the one hand, before the issuance of a criminal security order, the basis of the personality record is not formed, and as a result, judicial actions and decisions are devoid of influence up to this point. On the other hand, they proceed to form a personality record only in mandatory cases of formation and regarding the revocation of the detention order of the accused or the issuance of some leniency measures such as the suspension of prosecution for children and adolescents, and not in a comprehensive and widespread manner.

Research Article

Requirements of Lawfare for the International Criminal Court and Its Paradigmatic Foundations

M F

Volume 20, Issue 26 , November 2023, Pages 379-412

https://doi.org/10.30513/cld.2024.5972.1982

Abstract

The analysis of legal institutions from various perspectives encompasses ideas that lead us beyond mere legal analyses and reveal points that may not be immediately apparent despite ... Read More

Editorial

JID

Volume 20, Issue 26 , November 2023

Volume 22 (2025)

Volume 21 (2024)

Volume 20 (2023)

Volume 19 (2022)

Volume 18 (2021)

Volume 17 (2020)

Volume 16 (2019)

Volume 15 (2018)

Volume 14 (2017)

Volume 13 (2016)

Volume 12 (2015)

Volume 11 (2014)

Volume 10 (2013)

Volume 9 (2012)

Volume 8 (2011)

Volume 7 (2010)

Volume 6 (2009)

Volume 5 (2008)

Volume 4 (2007)

Volume 2 (2006)

Volume 3 (2005)

Volume 1 (2004)

Volume & Issue: Volume 20, Issue 26, November 2023, Pages 1-414

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract

Abstract