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A Jurisprudential and Legal Analysis of the Punishment for Moharebeh in Cases of Murder or Injury
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Anahita Safapour1    , Khatereh Shahinfard2 |
1- Ph.D Student, Department of Criminal Law & Criminology, Faculty of Humanity, Shahrekord Branch, Islamic Azad University, Shahrekord, Iran. (Corresponding Author)
2- Assistant Professor, Department of Criminal Law & Criminology, Faculty of Humanity, Shahrekord Branch, Islamic Azad University, Shahrekord, Iran. |
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Abstract: (127 Views) |
Background and Aim: Moharebeh is one of the most significant hadd crimes in Islamic jurisprudence, which is mentioned in verse 33 of Surah al-Ma’idah. In cases where the perpetrator of moharebeh commits murder or causes injury, the precedence and sequence of the punishment of qisas (retribution) and the hadd punishment for moharebeh, as well as the authority of the Islamic judge, have been subjects of dispute among Imami jurists. When the perpetrator of moharebeh commits murder or inflicts injury, extensive discussions have taken place regarding the manner of implementing the hadd punishment and how to reconcile hadd punishments with qisas. The main issue is whether, in the event of murder by the perpetrator of moharebeh, the Imam or Islamic judge still has discretion in choosing among the four hadd punishments, or if the punishment for murder becomes obligatory.
Materials and Methods: The research method in this article was descriptive-analytical.
Ethical Considerations All ethical principles have been followed in writing this article.
Findings & Conclusion: This article, by examining the opinions of Imami jurists from earlier scholars to contemporaries, analyzes three major views. The first view is the absolute discretion of the judge, even in cases involving murder. The second asserts that the punishment of death becomes mandatory if the mohareb commits murder, and the third differentiates between murder committed for the purpose of property acquisition and other motives. The article then comparatively and comprehensively examines these opinions in light of Articles 283 to 285 of the Islamic Penal Code, the Supreme Court’s precedential rulings, and the advisory opinions issued by the Legal Department of the Judiciary. It demonstrates that the legislator of the Islamic Republic of Iran has adopted the theory of judicial discretion and has acted in accordance with the positions of later jurists. The article concludes that the basis of the law in this regard has rightly distinguished between people’s private rights (qisas) and God’s right (the hadd punishment for moharebeh), and that a reasonable consistency between jurisprudence and statutory law has been achieved. |
Article number: 3 |
| Keywords: Punishment for Moharebeh, Moharebeh, Hadd. |
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Full-Text [PDF 458 kb]
(50 Downloads)
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Type of Study: Research |
Subject:
Special
Received: 2025/02/13 | Revised: 2025/03/15 | Accepted: 2025/03/18 | Published: 2025/03/21
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