Islamic Legal Analysis

The Jurisprudential-Legal Nature of Custom and Its Reflection in the Substantive Criminal Laws of Iran

Document Type : Original Article

Authors

Mahdi Mo’meni 1
Yavar Jala`iyan Saleh 2

1 member of law faculty, Payame Noor University, Tehran, I.R.Iran

2 PHD Criminal law and criminology, Azad Eslami University, Semnan, Iran.

Abstract
Many early, late and contemporary jurists, including Imam Khomeini, have paid special attention to the importance of the role of custom. The place of custom and its dynamics in jurisprudential and legal issues is evident according to the element of time and place. The main question is what is the place of custom in substantive criminal matters? With the hypothesis that the special concept of custom in substantive criminal matters has drawn a special and distinct position for it from other fields of law. The aim is to analyze the concept of custom in the jurisprudential and legal aspects and to explain its validity in the realm of substantive criminal law - especially with regard to criminal responsibility and the determination of punishments. The research method is descriptive-analytical. The results indicate that although custom in criminal matters cannot be used as a jurisprudential or legal source of criminal law to document criminal prosecution or conviction, it is able to play a significant role in the three positions of creating legal rules, the position of interpretation and also the implementation of legal rules.

Highlights

The results of the research indicate that custom as a source of rights is an unwritten, general, permanent and at the same time evolving rule that arises directly from the will of the people and the government has less role in creating it. Custom is a set of rules that is created as a result of constant repetition (material element) and adherence to it (spiritual element) and penetrates into the minds of people to a degree that they are convinced, its observance is necessary and non-observance is ugly and guaranteeing. The conclusion that can be drawn from the definitions provided in order to provide a definition of custom in the term is that none of them is comprehensive and expedient in terms of being comprehensive. Types of custom divisions into general and specific, verbal and practical, correct and corrupt were expressed. Considering all the definitions, conditions such as antiquity, voluntariness and voluntariness, order and frequency, non-contradiction with the stipulation of the Shari'a and its successors, rationality, acceptability and binding, can be presented as criteria for validating custom and certain value of all definitions.

The authority of custom is disputed by the Imams and Sunnis. From the expressions and application of custom and habit in the words of the jurists, it became clear that Sunni scholars, especially the Hanafis, consider custom as a proof and consider it as a practical field. In contrast, Imami jurists often limit the authority of custom to such things as expressing the will of the parties to the transaction and interpreting the subject, recognizing the concept and discovering the Shari'a ruling, and do not give authority to custom in proving the rulings. In other words, they do not consider practical custom as one of the reasons for inferring obligatory rulings; Unless it is proved that what is now practiced by custom has been common since the time of the Infallibles (AS) and has not been forbidden by the Shari'ah. Although the role of custom has been rejected as the source and basis of validity of laws and rules and the only source of trust is the will of the shari'a, There is no doubt that he has been satisfied with the customary understanding and its principles in recognizing and implementing his rules and speeches. Therefore, the role of custom in jurisprudence and law is evaluated both in the position of inferring rulings and in the position of applying and enforcing significant rules. Custom affects laws in two stages, first in the stage of drafting criminal laws, and second in the stage of law enforcement. After the law has been approved by the legislature and public information has been issued, there are sometimes cases in which it is possible to define and identify its examples with the help of custom. Like what behaviors are against public decency or what kind of actions are typically deadly. Also explain the relative and customary concepts such as fraud, fiduciary duty, urgency, negligence, public morality, vagrancy. Thus, the reflection of custom in the various components of the material element of a wide range of crimes is clear. Custom also plays an important role in individualizing punishment by using legal permits such as mitigation and aggravation of punishment. The criminal court uses the capacities provided by law and individualizes the punishments in accordance with the custom of the society. Judicial custom and procedure also play an important role in recognizing and deburring the keywords used by the legislator in introducing examples of crime and complicity, defining the quantity and quality of justifiable causes of crime and factors eliminating criminal responsibility in the text of the law.

 

Keywords

custom
criminal law
substance
jurisprudence
law

Article Title Persian

ماهیت فقهی - حقوقی عرف و بازتاب آن در حقوق ماهوی کیفری ایران

Authors Persian

مهدی مومنی 1
یاور جلائیان صالح 2
1 member of law faculty, Payame Noor University, Tehran, I.R.Iran
2 PHD Criminal law and criminology, Azad Eslami University, Semnan, Iran.
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Islamic Legal Analysis
Volume 1, Issue 1 - Serial Number 1
August 2023
Pages 83-112