criminal liability of duress in Crimes related to bodily harm

Document Type : Academicm and Research

Authors

1 Assistant Professor in Criminal Law&Criminology/ faculty of law/ University of Judicial Sciences and Administrative Services/ Tehran/Iran

2 Assistant Prof of Islamic Law,, Faculty of Judicial Law, University for Judicial Sciences and Administrative Services, Tehran, Iran

Abstract

The absence of the prohibition of committing the crime of bodily harm in case of duress and consequently non-Qisas of the one who was in duress, it gives rise to jurisprudential and legal issues regarding the possibility of Qisas of One who causes duress and proof of the Blood money is based on the assumption of non- Qisas and also the person responsible for paying the Blood money. In this research, which was carried out with a descriptive and analytical method and with the evaluation of jurisprudential evidence, the result was obtained that it seems that due to the non-commitment of a crime by One who causes duress and non-attribution of crime to him, it is not possible to believe that he plays a more important role than one who commits conduct. a search in the laws of western countries also indicates that in some cases, one who causes duress was not convicted of the main crime, but another crime, such as the crime of incitement or accessory, was considered for him. Also, according to the rule of not wasting Muslim blood and also the independence of the Blood money from the Qisas, in some situations it seems necessary to pay the Blood money of victim by one of these two party. On the other hand, it seems that the payment of the Blood money is the responsibility of who was in duress and of course, considering that the cause of this waste of money is of one who causes duress, another person can take the money from her after paying the Blood money.

Keywords

Main Subjects

References

In Persian
Ibn Fahd Hilli, Jamal al-Din, Ahmad ibn Muhammad Asadi, 1407 AH (1986 CE), Al-Muhadhdhab al-Bari’ fi Sharh al-Mukhtasar al-Nafi’, Qom: Islamic Publications Office affiliated with the Society of Seminary Teachers of Qom.
Ahsā’ī, Ibn Abi Jamūr, Muhammad ibn ‘Alī, 1405 AH (1984 CE), ‘Awāli al-La’ālī al- ‘Azīziyah, 4 volumes, Qom: Dar Sayyid al-Shuhada Publishing.
Imam Khomeini, Sayyid Ruhollah Musavi, 1409 AH (1988 CE), Tahrir al-Wasīlah, 2 volumes, Qom: Institute of Dar al- ‘Ilm Publications.
Emami, Sayyid Hasan, 1399 (1979 CE), Civil Law, Tehran: Islamic Publications.
Iravani, Baqir, 1426 AH (2005 CE), Introductory Lessons in Jurisprudential Principles, 2 volumes, Qom: Dar al-Fiqh for Printing and Publishing.
Bayati, Mohammad Hossein, 1395 (2016 CE), The Jurisprudential Foundations of Islamic Penal Law: The Book of Retribution, Part One: General Articles, Tehran: University of Justice Publications in collaboration with Jungle and Javadaneh Publishing, First Edition.
Tabrizi, Gholam Hossein, 1372 (1993 CE), Principles of the Reformed, Mashhad: Tous Printing.
Tabrizi, Jawad ibn Ali, 1426 AH (2005 CE), Revision of the Foundations of Rulings – The Book of Retribution, Qom: Dar al-Siddiqah al-Shahidah, peace be upon her.
Tarhini Ameli, Seyyed Mohammad Hossein, 1427 AH (2006 CE), The Jurisprudential Foundation in Explanation of Rawdah al-Bahiyyah, 9 volumes, Qom: Dar al-Fiqh for Printing and Publishing.
Haji Dehabadi, Ahmad, 1391 (2012 CE), Rules of Criminal Jurisprudence, Qom: Research Institute of Hawzah and University.
Haji Dehabadi, Ahmad, 1396 (2017 CE), Crimes against persons (Murder), Tehran: Mizan legal foundation.
Hurr Ameli, Muhammad ibn Hassan, 1409 AH (1988 CE), Wasa’il al-Shi’a, 30 volumes, Qom: Ahlulbayt Institute, peace be upon them.
Hosseini Nasab, Seyyed Mustafa, Study on the Jurisprudence of Laadhar, Session 7/27/1402, manuscript reports by Saleh Montazeri.
Khamenei, Seyyed Ali, Study on the Jurisprudence of Laadhar, Tehran: Rahiyab: Notebooks on Jurisprudential Studies by His Eminence, Book of Retribution: pp. 513–524 and p. 562, Sessions 90–92 (November 1999) and Session 97 (November 2000).
Khamenei, Seyyed Ali, 1398 (2019 CE), Educational Treatise 2: Rulings on Transactions, 11th Edition, Tehran: Publications of Fiqh-e Rooz (affiliated with the Publications of the Islamic Revolution).
Khwansari, Sayyid Ahmad ibn Yusuf, 1405 AH (1985 CE), Jami’ al-Madarik fi Sharh Mukhtasar al-Nafi’, 7 volumes, Qom: Ismaili Foundation.
Khoei, Sayyid Abul-Qasim, 1391 (2012 CE), Foundations of Takmila al-Minhaj, Volume 2, edited by Alireza Saeed, Tehran: Khorsandi Publications.
Rouhani Qomi, Sayyid Sadiq Hosseini, 1412 AH (1991 CE), Fiqh al-Sadiq, peace be upon him (by Rouhani), 26 volumes, Qom: Dar al-Kitab – School of Imam Sadiq, peace be upon him.
Rouhani Qomi, Sayyid Mohammad Hosseini, 1413 AH (1992 CE), Muntaqa al-Usul, Reports by Abdolsaheb Hakim, 7 volumes, Qom: Office of Ayatollah Seyyed Mohammad Hosseini Rouhani.
Sobhani Tabrizi, Jafar, 1431 AH (2010 CE), Al-Mabsut fi Ilm al-Usul, 3 volumes, Qom: Imam Sadiq Foundation.
Sabzvari, Seyyed Abdol-Ala, 1413 AH (1992 CE), Muhadhdhab al-Ahkam (by Sabzvari), 30 volumes, Qom: Al-Manar Foundation – Office of His Eminence Ayatollah.
Shahid Thani, Ameli, Zayn al-Din ibn Ali, 1410 AH (1990 CE), Rawdat al-Bahiyya fi Sharh al-Lum’a al-Dimashqiyya (annotated – Kalantar), 10 volumes, Qom: Davari Bookstore.
Sahib Jawahir, Najaf, Muhammad Hassan, 1404 AH (1984 CE), Jawahir al-Kalam fi Sharh Shara'i' al-Islam, 43 volumes, Beirut: Beirut: Dar Ihya' al-Turath al-Arabi Publishing House.
Sadeghi, Mohammad Hadi, 1394 (2015 CE), Crimes against persons (Physical damages), Tehran: Mizan legal foundation.
Allamah Hilli, Hassan ibn Yusuf ibn Mutahhar Asadi, 1413 AH (1992 CE), The Rules of Rulings in Knowing the Halal and the Haram, 3 volumes, Qom: Islamic Publications Office affiliated with the Society of Seminary Teachers of Qom.
------------------------------,, 1413 AH (1992 CE), Different Views of the Shi’a on Sharia Rulings, 9 volumes, Qom: Islamic Publications Office affiliated with the Society of Seminary Teachers of Qom.
Allameh Majlisi, Muhammad Baqir ibn Muhammad Taqi Isfahani, 1413 AH (1992 CE), Bihar al-Anwar, 33 volumes, Beirut: Foundation for Printing and Publishing.
Fazel Abi, Hasan ibn Abi Talib Yusufi, 1417 AH (1996 CE), Kashf al-Rumuz fi Sharh Mukhtasar al-Nafi’, 2 volumes, Qom: Islamic Publications Office affiliated with the Society of Seminary Teachers of Qom.
Fazel Lankarani, Muhammad Movahedi, 1421 AH (2000 CE), Detail of Sharia fi Sharh Tahrir al-Wasila – al-Qisas, Qom: Fiqh Center of the Imams (peace be upon them).
Fazel Hindi Isfahani, Muhammad ibn Hassan, 1416 AH (1995 CE), Revealing the Uncovered Rules of Judgments, 11 volumes, Qom: Islamic Publications Office affiliated with the Society of Seminary Teachers of Qom.
Falahzadeh, 1401 AH (1980 CE), Teaching Fiqh, Qom: Ma’rouf Publishing.
Qabalah Khoyi, Khalil, 1390 (2011 CE), Translation and Commentary on the Foundations of Takmila al-Minhaj – Retribution, Tehran: SAMT.
Qabalah Khoyi, Khalil, 1391 (2012 CE), Rules of Jurisprudence: Penal Section, Volume 1, 6th Edition, Tehran: SAMT.
Qiassi, Jalaloddin, Qaemfard, Seyyed Mohsen, 2014, Rethinking Criminal defenses of Necessity and Duress in Dubious Cases, journal of Comparative Studies on Islamic and Western Law, Number 4.
Kulaini, Abu Jaafar, Muhammad ibn Yaqoub, 1407 AH (1987 CE), Al-Kafi (Islamic Edition), 8 volumes, Tehran: Dar Al-Kutub Al-Islamiyyah.
Ganji, Mahdi, Study on Jurisprudence, Session 8/30/1400, Rahiyab: Notes on the Advanced Jurisprudence Course, available on the internet site.
Mohaqqiq Damad Yazdi, Seyyed Muhammad, 1382 (2003 CE), Lectures on the Principles of Jurisprudence, Reports of Seyyed Jalal al-Din Taheri Isfahani, 3 volumes, Isfahan: Mubarak Publishing House.
Mohaqqiq Damad Yazdi, Sayyid Mustafa, 1406 AH (1985 CE), Rules of Jurisprudence, 4 volumes, Tehran: Center for Islamic Sciences Publishing.
Madani Kashani, Haj Agha Reza, 1410 AH (1990 CE), The Book of Retribution for Jurists and Elites, Qom: Islamic Publications Office affiliated with the Society of Seminary Teachers of Qom.
Marashi Shoushtari, Seyyed Mohammad Hassan, 1427 AH (2006 CE), New Perspectives on Law, 2 volumes, Tehran: Mizan legal foundation.
Marashi Najafi, Seyyed Shahab al-Din, 1415 AH (1994 CE), Retribution in the Light of the Quran and Sunnah, 3 volumes, Qom: Publications of the Library of Ayatollah Marashi Najafi (may God sanctify his secret).
Moravve Jazayeri, Seyyed Mohammad Jafar, 1416 AH (1995 CE), Guidance of the Student in Explaining Al-Makasib, 7 volumes, Qom: Dar al-Kitab Foundation.
Montazer Qaim, Mahdi, 1400 (1980 CE), Texts of the Jurisprudence of the Two Martyrs, Tehran: SAMT and Judicial Sciences and Administrative Services University.
Mir Mohammad Sadeghi, Hossein, 1401 (2021 CE), offences against physical integrity of persons, Tehran: Mizan legal foundation.
 
 
Send comment about this article
CAPTCHA Image
Comparative Studies on Islamic and Western Law
Volume 12, Issue 3 - Serial Number 45
September 2025
Pages 64-84

Files

Share

How to cite

Statistics