Jurisprudential Foundations of Criminalization in the Domain of Religiously Permissible Acts (book)
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| Book Information | |
|---|---|
| Author | Seyed Mohsen Fattahi |
| Style | Analytical |
| Language | Persian |
| Volumes | 1 |
| Pages | 181 |
| Publication Information | |
| Publisher | Negah-e Mo'aser |
- Abstract
Jurisprudential Foundations of Criminalization in the Domain of Religiously Permissible Acts is a jurisprudential book in the field of criminal laws and regulations by Seyed Mohsen Fattahi that jurisprudentially examines the punishments for crimes related to cultural heritage. In the author's belief, among the religious and legal punishments, only governmental deterrent punishments are applicable to crimes against cultural heritage. The author considers the government authorized to issue rulings only when there is a collective interest that is strong enough to justify infringing upon individual freedoms.
The author then proceeds to examine two important punishments regarding crimes against cultural heritage: imprisonment and financial penalties. After reviewing the evidence for these punishments, he deems the evidence insufficient. To solve this issue, the author resorts to practical principles and, in the case of deterrent punishments, considers the default to be the permissibility of punishment by the government. However, according to him, the government does not have free rein in devising deterrent punishments for crimes that are not sins; it can only resort to enjoining good and forbidding evil. In conclusion, the author discusses the challenges facing cultural heritage laws and proposes foundational and practical solutions to overcome these challenges.
Introduction to the Book
The book *Jurisprudential Foundations of Criminalization in the Domain of Religiously Permissible Acts with Application to Crimes Against Cultural Heritage*, written by Seyed Mohsen Fattahi, is in the field of criminal laws and regulations and jurisprudentially examines the punishments for crimes related to cultural heritage. Seyed Mohsen Fattahi is a professor at the University of Religions and Denominations, and *Cultural Heritage: A Juridical-Legal Study* is another of his works in contemporary jurisprudence.
Structure of the Book
The book has a preface and two chapters. The first chapter, which deals with subject identification and the presentation of jurisprudential foundations, has three sections. In the first section, general principles are stated. In the second section, the author examines the substantive nature of punishments for crimes against cultural heritage, whether they are *ta'zir* (discretionary punishments) or a type of deterrent punishment. In the third section, the author examines two important punishments in the field of cultural heritage: imprisonment and financial penalties. The second chapter of the book discusses the challenges of adhering to cultural heritage laws and proposes solutions to overcome these challenges. In the end, the author provides recommendations for solving the problems of the country's cultural heritage.
Types of Punishments and Their Application to Crimes Against Cultural Heritage
Seyed Mohsen Fattahi divides religious punishments into four types: *hadd* (fixed punishment), *ta'zir* (discretionary punishment), *qisas* (retaliation), and *diyat* (blood money), and alongside them, he mentions a new type of punishment called deterrent punishment. Deterrent punishment is not mentioned in religious law and is in accordance with the legislator's discretion, determined for violations of governmental regulations (pp. 20-24). From among the five types of punishments, the author does not consider *hadd*, *qisas*, and *diyat* to be applicable to the punishment of crimes against cultural heritage. He then proceeds to examine the two remaining types of punishment, namely *ta'zir* and deterrent punishment, to determine the type of punishment for crimes against cultural heritage (p. 24).
Religious Ta'zir Does Not Include Crimes Against Cultural Heritage
According to the author, for the punishment of crimes against cultural heritage to be considered a type of *ta'zir* punishment, the scope of *ta'zir* must be considered broader than just sins. This is because, undoubtedly, crimes against cultural heritage are not "sins," but rather "permissible acts" that the government has criminalized for the sake of societal interests (pp. 25-28).
The author then examines the scope of *ta'zir*. He believes that one cannot agree with the opinion of some jurists who have limited *ta'zir* to major sins. In Fattahi's belief, applying *ta'zir* to all minor sins also lacks evidence; rather, *ta'zir* is only applicable in some specified cases (pp. 28-39). The author then discusses whether, based on the evidence, *ta'zir* is exclusive to sins or if it also includes cases that are not sins but have been criminalized for some reason. After examining the evidence for the permissibility of *ta'zir* in non-sinful acts (some narrations and the argument of preserving the system), he concludes that *ta'zir* can be proven for acts that are primarily sins. Since crimes against cultural heritage are not primarily sins, the punishment of *ta'zir* cannot be proven for these crimes (pp. 39-43).
Jurisprudential Foundations of Governmental Rulings and Their Characteristics
After the author, from among the five types of punishments, considered only deterrent punishments to be applicable to crimes against cultural heritage, he proceeds to examine the jurisprudential foundations of governmental rulings and their characteristics, because the legitimacy of deterrent punishments is derived from governmental rulings. He takes the legitimacy of the Islamic government, the authority of the ruler, and his absolute guardianship as postulates and premises for this research, and considers them the basis for issuing governmental rulings, because the Islamic government has based its legitimacy in enacting governmental rulings on these principles (pp. 44-45).
The author presents two views regarding the context of governmental rulings. The first view considers governmental rulings to be issuable only in the domain of permissible acts (*mintaqat al-faragh*), that is, only on subjects where the Lawgiver has refrained from legislating. The second view, by appealing to the absolute nature of the evidence for the guardianship of the jurist, believes that, in addition to permissible acts, obligatory acts are also within the scope of governmental rulings. For instance, according to Imam Khomeini (who adopted the second view), the government can prevent any matter (even acts of worship) whose practice is contrary to the interests of Islam. The Treaty of Hudaybiyyah is one instance of governmental intervention in the domain of obligatory acts, where the obligation of Hajj (an obligatory act) became subject to a governmental ruling (prohibition). Fattahi also considers the second view to be more logical than the first, both in terms of the absolute nature of the verses, rational understanding, and the appropriateness of the ruling to the subject (pp. 47-51).
Extension of Governmental Rulings to Matters of Significant Interest
The author believes that governmental rulings are based on the existence of an interest (*maslahah*). From among the seven criteria for *maslahah*, he only refers to two that are more relevant to the topic of discussion. The first criterion is the necessity of the interest; that is, when an interest is necessary, it can be the basis for a governmental ruling. In the author's opinion, matters of significant interest (*masalih ihtimamiyyah*) can also be the basis for a governmental ruling, and if such an interest is identified, the ruler can issue a governmental ruling. He defines matters of significant interest as interests whose observance is not necessary or cause hardship, but is considered important by rational people. For his opinion, he refers to a narration from Imam al-Sadiq (a), according to which the Imam (a) ordered visiting sick Sunnis, participating in their funerals, and praying with them,[1] while none of these actions are necessary or cause hardship. The author goes further in the discussion and considers the mere existence of rational desirability to be a valid basis for issuing a governmental ruling (pp. 51-55). He considers the second criterion to be the certain, or rather, the presumptive, confirmation of the interest (p. 58).
Examination of Punishments for Crimes Against Cultural Heritage in the Law
In the third section of the first chapter, Fattahi examines the jurisprudential foundations of the most important punishments related to cultural heritage in the Islamic Penal Code, namely the punishment of imprisonment and financial penalties.
Critique of the Evidence for the Punishment of Imprisonment
To prove the legitimacy of the punishment of imprisonment as a general punishment (other than cases of life imprisonment), the author has examined Quranic, narrative, rational, and customary rational evidence. In his belief, none of the verses of the Quran are sufficient to prove the legitimacy of imprisoning a Muslim criminal or accused (pp. 61-64). Similarly, according to him, the narrations presented to prove the legitimacy of imprisonment do not indicate what is claimed, because the imprisonment mentioned in these narrations was either as a preliminary to another action or due to a specific governmental policy. For example, based on the *marfu'* narration of al-Barqi,[2] Imam Ali (a) ordered the imprisonment of criminals as a preliminary measure to protect people. Also, according to the reliable narration of Ghiyath ibn Ibrahim,[3] Ali (a), due to the intensification of governmental punishment, would order the imprisonment of those who gave false testimony (pp. 64-72).
In explaining the rational argument, it has been said that preserving the system and protecting the interests of the people is rationally obligatory. The author finds this rational argument to have some problems, including: first, reason and religion are only concomitant in rational imperatives (*mustaqillat 'aqliyyah*), and in other cases, there is no such concomitance; second, it is not the case that people's security is only ensured by imprisoning the criminal and there is no other way (pp. 72-73). The practice of the rational (*sirat al-'uqala'*) is the fourth argument he presents for the legitimacy of imprisonment, and he accepts it. He believes that throughout history, all groups have benefited from the punishment of imprisonment, and if this long-standing punishment were not approved by the Lawgiver, he would have had to explicitly oppose it. He goes further and believes that a devotional view of crimes and punishments means neglecting their nature and objectives. He considers the Islamic state's avoidance of stoning, throwing from a height, etc., in the present era as evidence of the ineffectiveness of these punishments, not as a sign of disobedience to the Lawgiver (pp. 73-76). The author then raises two objections to the argument from the method of the rational and responds to them (pp. 76-78).
Jurisprudential Foundations of Financial Penalties
To examine the jurisprudential foundations of financial penalties, the author takes some issues as premises for the discussion, including: the legitimacy of financial penalties in general and the established nature of financial penalties (other than financial discretionary punishments) in the Sharia. He examines the evidence for the legitimacy of financial penalties in two parts: 1. Monetary fines, 2. Deprivation of ownership (confiscation of property) (pp. 78-81).
1. Evidence for the Legitimacy of Monetary Fines
Seyed Mohsen Fattahi presents seven arguments for the legitimacy of monetary fines. Quranic and narrative evidence are the first two arguments. In the author's belief, the only verse cited (Quran 20:97) pertains to beliefs and does not have a punitive aspect. He then examines four categories of narrations and concludes that none of the presented narrations indicate the legitimacy of monetary fines, because either their indication of the claim is insufficient, or the penalty mentioned in them is for crime prevention or as an expiation (*kaffarah*) (pp. 81-90).
The other five arguments that the author examines are: 1. The concomitance of fines with the essence of the Islamic government, 2. Securing the financial resources of the government from fines and its legitimization as a necessary preliminary, 3. Viewing guardianship as a contract between the ruler and the people, and the legitimization of fines as an implicit condition of the contract, 4. The legitimacy of financial penalties due to their definite priority over physical punishments (*hudud* and *ta'zirat*), 5. The practice of the rational. The author, by disputing the validity of these five arguments, does not find any of them sufficient to prove the legitimacy of monetary fines (pp. 90-97).
2. Evidence for the Legitimacy of Confiscation of Property
The author limits the discussion of property confiscation to property obtained through legitimate means and does not apply this discussion to property obtained through illicit means, because property obtained illicitly is not owned by the person in the first place for its confiscation to be necessary. In the discussion of the confiscation of legitimate property, he also distinguishes between the deprivation of ownership resulting from the loss of legal capacity (such as apostasy) and confiscation as a punishment. The author believes that punitive confiscation is absolutely not established in the Sharia, and there is no rational, scriptural, or historical evidence in its favor (pp. 97-99).
Practical Principle in Financial Penalties
With the lack of evidence for the legitimacy of financial penalties, the author resorts to practical principles and considers the default to be the permissibility of punishment by the government. However, according to him, the government does not have free rein in devising non-scriptural punishments and must, in deterrent punishments for non-sinful crimes, suffice with enjoining good and forbidding evil (pp. 100-101).
Challenges of Cultural Heritage Laws
In the second chapter, the author considers the governmental rulings issued in a non-infallible government to face two challenges: 1. Error in identifying the interest and necessity, 2. Materialistic and egoistic motives. He believes that if the necessity of the interests in the field of cultural heritage cannot be properly proven, the legitimacy of applying these laws will face problems, because the implication of the practical principle is the preservation of individual freedoms (pp. 126-130).
Solutions to Overcome the Challenges
The author then proposes practical and foundational solutions to overcome the challenge of the conflict between primary rulings and governmental rulings in the field of cultural heritage.
Practical Solutions
One of the practical solutions presented by the author is that the government can make the provision of social services, such as water and electricity connections, for the owners of cultural heritage conditional on their compliance with and adherence to the laws of the cultural heritage organization. However, Fattahi sees this solution as facing limitations and considers it necessary to provide alternative solutions (pp. 133-136).
Foundational Solutions
In explaining the foundational solutions, Fattahi shapes the basis of the discussion in a way that its result is the legitimacy of governmental rulings in the field of cultural heritage. One of the foundational ways is to consider the legitimacy of the government as arising from the people's vote. In such a scenario, people, for their own interests, can conditionally relinquish their dominion over their property and lives by giving their allegiance. The author considers this solution to be theoretically possible but sees it as facing practical problems (pp. 139-141).
A governmental view of primary rulings is one of the proposed solutions. In this approach, there are no general principles of ownership over individuals; rather, the scope of the principle of dominion and the property rights of the people is considered to be a scope that is restricted by government decisions. According to this statement, the division of rulings into primary rulings and governmental rulings, or considering governmental rulings as secondary rulings, would be incorrect. Also, under this solution, rational methods are used in legislation, and continuous reliance on necessity, secondary rulings, and the exercise of guardianship is avoided (pp. 141-143).
The author's other solution is the opposite of the previous approach, which is a minimalist view of religion. Based on this foundation, the Sharia, in economic, social, political, and legal matters, except in limited cases, does not interfere much and only states general rules. In this view, for the interpretation and explanation of the evidence for judicial and transactional rulings, rational views are considered; therefore, the evidence for individual ownership will not be absolute, and individual freedoms are understood in light of rational views on social issues and their interests (pp. 151-154).