Jurisprudential and Legal Foundations of Crimes and Discipline of Children (book)
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| Book Information | |
|---|---|
| Author | Mansour Forghani |
| Style | Analytical-Argumentative |
| Language | Persian |
| Pages | 285 |
| Publication Information | |
| Publisher | Organization of Parents and Teachers Association |
- Abstract
- Jurisprudential and Legal Foundations of Crimes and Discipline of Children* by Mansour Forghani is a book in the field of Criminal Jurisprudence. According to the author, contrary to traditional criminal law, the criminal responsibility of children is not entirely lifted in Iranian Islamic laws, and discipline (*ta'dib*), as an educational and light punitive response, is applicable to them.
Forghani emphasizes that *ta'dib* must be proportional to the extent of the crime and the child's physical and mental capacity, and its determination is delegated to the religious judge (*hakim al-shar'*). Citing the Hadith al-Raf' (the hadith that lifts accountability), he negates the religious responsibility of children for some sins (such as lying or gambling) but believes that the rational reprehensibility of these actions and the justification for reprimanding the child still remain.
In discussions on specific punishments, the author argues that prescribed religious punishments (*hudud*) are not applied to children, and *ta'dib* serves as a substitute. Forghani analyzes the views of jurists and favors the opinion that *hudud* are not applicable to children.
Brief Introduction
- Jurisprudential and Legal Foundations of Crimes and Discipline of Children* is a book in the field of Criminal Jurisprudence. This work was authored by Mansour Forghani and published by the Organization of Parents and Teachers Association in 1379 SH in 285 pages.
Structure and Content of the Book
The main topics of the book are organized into three parts. The table of contents and introduction are at the beginning, and the list of sources is at the end of the work. The first part is dedicated to concepts and general principles. The second part examines juvenile delinquency and related educational topics. The third part of the book, which contains more jurisprudential and legal discussions, examines the punishment for some crimes committed by children.
The Role of Discipline in the Framework of Children's Criminal Responsibility
In the first chapter, the author divides crimes into public (*haqq Allah*) and private (*haqq al-nas*). In public crimes, the forgiveness of the plaintiff does not affect the dropping of the punishment, but in private crimes, the plaintiff's forgiveness leads to the waiver of punishment (pp. 20-21). After explaining the difference between *hadd* and *ta'zir* in Islamic jurisprudence (p. 21), Forghani divides crimes into crimes of commission (positive crimes) and crimes of omission (negative crimes), considering positive causation (such as forcing a child to slap another person) as a positive crime (p. 23).
Unlike ancient criminal law, in the religious and civil laws of Iran, criminal responsibility is not entirely lifted from children and the insane, and discipline (*ta'dib*), as an educational response, is used for them (pp. 25-29). In jurisprudence, *ta'dib* is a light punishment for the non-pubescent (p. 31) and in the Islamic educational system, it is applied as a last resort after going through stages such as feigning ignorance, reminding, advising, reprimanding, deprivation, shunning, and warning (pp. 43-59). After quoting narrations and the views of Shia and Sunni jurists on raising children (pp. 61-72), the author makes the measure of a child's discipline dependent on the extent of the crime and their physical and mental strength, and considers the determination of its method and amount to be the responsibility of the religious judge (p. 72). Forghani does not see such a light punishment in conflict with the Hadith al-Raf' and believes that the Hadith al-Raf' does not include civil liabilities (such as blood money) and only intentional crimes are lifted by the Hadith al-Raf' (p. 77), although even in intentional crimes, financial liability is not lifted (p. 92).
Lifting Religious Obligation from Children and the Realization of Rational Judgment
In the second part of the book, some delinquent behaviors of children (lying, cursing, backbiting, and gambling) are examined from a psychological and educational perspective. For this purpose, the author first explains the meaning of each sin, then in some cases, states their types, causes, solutions, and related verses and narrations, and explains the evidence for their prohibition (pp. 98-153). According to the author, although the prescriptive prohibition of these sins is lifted from children due to the Hadith al-Raf', their rational reprehensibility still exists, and the child deserves to be reprimanded (p. 120).
Non-Application of Prescribed Punishments (Hudud) to Children
The third part occupies half the volume of the book and consists of ten chapters. In the first chapter, after stating the four types of punishments in Islam (*hudud*, *ta'zir*, *qisas*, and *diyat*), Forghani defines each of them and explains their benefits (pp. 156-160). From the second to the tenth chapter, he examines a number of punishments related to children.
Punishment for Adultery, Sodomy, and False Accusation
In the second, third, and fourth chapters, the author examines the punishment for adultery, sodomy, and false accusation, respectively. According to Forghani, if any of these crimes are committed by children, the prescribed religious punishment (*hadd*) is not applied to them; rather, the child is disciplined according to the judge's discretion. To state the ruling on the matter, he cites narrations and the views of jurists (pp. 167-184). According to the author, the religious judge considers the child's age, and the time and place of the sin in determining the measure of discipline (pp. 168-169).
Punishment for Theft
In the fifth chapter, Mansour Forghani, after examining the punishment for theft and stating the rulings and conditions for implementing the *hadd* on adults (pp. 185-193), examines its punishment for children. According to the author's report, there are two categories of narrations regarding theft by children:
- According to a number of hadiths, if a child commits theft, their sin is forgiven in the first and second instances. In the third instance, they are given a discretionary punishment (*ta'zir*), and in the fourth, the tips of their fingers are cut. If the child steals for the fifth time, a part lower than their fingertips will be cut (pp. 193-195).
- Based on another category of narrations, in the punishment for theft by children, their age is considered, and in some cases, their hand is cut off (p. 196).
Given the terms "*sabi*" (boy) and "*ghulam*" (male youth) used in the two previous categories of narrations, the author has considered the punishments mentioned in those narrations to be specific to boys. Regarding theft by female children, he refers to another narration according to which Imam Ali (a) flogged a prepubescent girl who had committed theft for discipline, and then released her (p. 199). By examining the narrations, the author has concluded that in none of the narrations is the implementation of the full *hadd* for theft (cutting off all fingers) mentioned (pp. 205-206).
Punishment for Apostasy
In the sixth chapter, after explaining the ruling on apostasy and its types for adults, the author examines the ruling on apostasy for children. After quoting the statements of jurists, he concludes that the apostasy of a discerning or non-discerning child is not given consideration, and the judge disciplines them to prevent their action in the future. After stating the opposing view, he considers it to be without evidence and in conflict with the Hadith al-Raf' (pp. 206-214).
On the occasion of the discussion on apostasy, Mansour Forghani, in the seventh chapter, examines the acceptance or non-acceptance of the Islam of a discerning child. The views of jurists on this matter are not uniform; some have issued fatwas for the acceptance of their Islam and a group for its non-acceptance. After examining the views and their evidence, the author has preferred the view of the jurists who have accepted the Islam of a discerning child (pp. 215-228).
Punishment for Murder, Retaliation, and Blood Money
After explaining the types of murder and the meaning of retaliation (*qisas*), the author explains the different views of jurists on the punishment for murder by children, along with their evidence (pp. 231-244). Following the view of most jurists, Forghani believes that the punishment of retaliation is not applied to a prepubescent child who commits intentional murder, and the opposing narrations are anomalous (*shadhdh*) and are not heeded (p. 236). Regarding the blood money (*diyah*) for murder or other injuries, he considers the payment of blood money to be obligatory on the *'aqilah* (paternal relatives). According to him, if the child does not have an *'aqilah*, or the *'aqilah* refuses to pay the blood money, or is unable to, the payment of blood money will be the responsibility of the offender themselves (pp. 276-277).