فلسفة العقوبة في الفقه الاسلامي

Abstract

ABSTRACT This study handled the philosophy ofpunishment in Islamic Jurisprudense (I1 iqh). This parallel in its general sense to the wisdom of the legitimacy of punishment in lslamic Jurisprudence (liiqh). This is based upon the concept" that every legal juresprudense which is not based on a fixed philosophy which has explicit aims and preiciples can not secure any success or servival. The study dealt with the opinions of the famous four doctries; in addition to the (Zahiriya, Shiaa) And (Zaydiya).Thus, the opinions of each of these doctries, in the topic of the study were deliberated , together with favouring the opinion thought to be concurrent with the general principles of Islamic Jurisprudence (Fiqh). The study started with delving into the originality of the philosophical and thought in Islamic lt confirmed the originality of these streams of thought. Thus, prooks were provided which may confirm this and reply to all the ideas which hold that the Arab and Islamic mind is not capable for philosophicalinnovation. Likewise, it is reply to the allegation that the Islamic “Shariaa” is nothing but the Roman Law , in an Arab dress. Then, the study dealt with the interpretation of crime and its relations with morals, the importance of the study ofthe crime theory in Islamic Jurisprudense (Fiqh), the stand of the lslamic Shariaa vis- a- vis this theory. Research and analysis also covered the considered interests which are protected by the lslamic “Shariaa”, the basic characteristics of the Islamic punishment and the purposes of punishment in Shariaa on the pretext that this system is an integral part of the religion, and which is concurrent with the nature of human life. The system also achieves the legal stability for the society because its punishments are devoid of the idea of vengeance. lt also aspires to achieve the beneficial, morale and personal objectives of punishment. After this, the study delved into the punishments in Islamic Jurisprudence. This covered the procedures of “lludoud” their terms, corners, punishments and the philosophical privciples on which punishments are based. This was followed by treating the “Qases” punishment (which bears within it self the origins of life), “Qasas” terms, comers, the method of its application and annulment. This was naturally followed by the study of “Dia” its history, terms, amount, the method of its assessment, the person liable for it and the method ofits payment. The study also delred into the “Tazeer” punishments which

essentially left the matter to the responsible persons, by the word of the Islamic “ Shariaa” to determine the type of crime and punishment, in pursuit of the general priciples of “Hudoud” , “Qasas” and “Dia” in accordance with the two sources of Islamic Law (i.e the holy book and the traditions (Sunna) of the Prophet (PPBUH). In this realm, thelimitsofdelegationofautI1orities,tlle powers of the responsible persons in determining criminal acts and punishments, the possibility of their implementation, the method and who implements them are also discussed . The findings of the study provide_that the Islamic legal philosophical thought is original. It is also proved that the Islamic “Shaaia” punishments tend to honour humanity. They also aim at establishing a free and stable life. So, the allegation of their being contrary to human rights — or others criticism from non — muslims, aim at the destruction of the image of “Shariaa”. The same situation applies to the half -educated or the pretenders of being “ ulema” who desparately try to influence the commoners‘ and those with weak minds and weak belief. Yet, the Islamic “Shariaa” despite all this , will remain valid and suitable for every time and place, by the will of God.