Abstract
Discretionary is Chastisement and Punishment that its type and amount has not been determined in the law and Fiqh (Islamic law), and is at the discretion of ruler, or in more correct word, is at the discretion of the judge; Since, according to Article 4 of the Iranian constitution, the laws should be originated from Fiqh, arranged discretionary in Islamic Penal Code and Fiqh is same in many cases. This article tries to investigate discretionary characteristics in the Penal Code and Fiqh; and answer to this problem that, prescribed discretionary in law and Fiqh, to what extent are aligned and have similar dimensions to aforementioned characteristics.
Highlights
In the current world, in accordance with scientific and technical developments in social levels, expansion, diversification and emergence of new crimes have been undeniable, and is increasing each day; so that, the world involved in evils, wickedness and different criminality
Discretionary is Chastisement and Punishment that its type and amount has not been determined in the law and Fiqh (Islamic law), and is at the discretion of ruler, or in more correct word, is at the discretion of the judge; Since, according to Article 4 of the Iranian constitution, the laws should be originated from Fiqh, arranged discretionary in Islamic Penal Code and Fiqh is same in many cases
By studying the Islamic penal code, we find that the amount of discretionary lashing is one of the following items: A) To 74 lashes
Summary
In accordance with scientific and technical developments in social levels, expansion, diversification and emergence of new crimes have been undeniable, and is increasing each day; so that, the world involved in evils, wickedness and different criminality. Jurists, from the past to present, have investigated various jurisprudential issues, and explored them through accurate legal reasoning (Ijtihad), there are little researches on discretionary despite its importance. The most obvious reason of this policy is that the realization of the objective discretionary is in the territory of ruler's powers, and practically is depended to the authority of Imam and the formation of political system based on Imamat; and since in the past, cruel and unjust rulers were responsible of the government, the Shiite jurists considered entering the political affairs and having responsibility in judicial acts as helping cruel. Peer reviewing law books reveal that, punishment in Islam is divided into several categories and groups, which are: Islamic punishments, blood money, retaliation, and discretionary; the last one, i.e. discretionary, in different directions has certain divisions; on the one hand, it can be legal discretionary punishments and governmental discretionary punishments. They are discretionary and detaining punishments which were the basis of Islamic Penal Code in 1991, and On the other hand, they are determined and absolute discretionary that are imposed by Islamic Penal Code in 2013, and has introduced orders to specify the differences between these two discretionary
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