Analyzing the legitimacy of Ta'ziri punishment in the assumption of non-execution of retribution (Deriving from the necessity of amending Article 614 of the Penal Code and its jurisprudential requirements)

Document Type : Original Article

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10.22091/rcjl.2025.12704.1177

Abstract

In Article 612 and 614 of Tazeerat, the legislator legalizes Tazeer in the case of the impossibility of execution of retribution in intentional crimes against the self and non-self. At the same time, the issue is a matter of dispute with the jurists, and their statements were in the form of fatwas and they did not provide any documentation on their opinions. Due to the fact that in intentional crimes, qisas wadiyyah has been determined as a punishment, therefore, the principle is that ta'zir is not legitimate until a reason to the contrary is established. Therefore, the main issue of the current research is what is the legitimacy of Ta'zir in the assumption of non-implementation of retribution? In this research, by referring to library sources and using descriptive-analytical method, while analyzing the possible evidence of the legitimacy of punishment, the results were obtained that the purpose of the legislation of retribution is to be vital and it is necessary to achieve it . In case of non-execution of retribution, it is possible with Ta'zir; The philosophy of the legislation of punishment, independently - and regardless of the purpose of the Shariah in the legislation of retribution - implies the obligation of punishment; Finally, the narration of Fazil bin Yasar from Imam Baqir (a.s.) confirms the legitimacy of tazeer. It also became clear that the legislator's approach in Article 614 based on allocating ta'zir to the situation of impossibility of execution of retribution is facing problems because the evidence includes the....

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History

  • Receive Date: 09 April 2025
  • Revise Date: 27 September 2025
  • Accept Date: 25 November 2025

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