Feasibility of Invoking Cultural Norms in Mitigating or Modifying Hudud Punishments (From the Perspectives of Imamiyyah Jurisprudence, Iranian Criminal Law, Hanafi Jurisprudence

Document Type : Original Article

Authors

1 motahari university

2 farhangian university

10.22034/mfu.2024.141314.1427

Abstract

In contemporary societies, the coexistence and interaction of diverse cultures have highlighted the importance of invoking cultural norms as a form of defense in criminal cases. Defendants often attempt to justify their actions and seek to mitigate or avoid punishment by appealing to their cultural backgrounds. Recognizing cultural beliefs, especially in cases where malicious intent is absent, is considered desirable, provided these beliefs do not lead to criminal behavior. Major legal systems typically consider such defenses when determining sentences.
Despite prior research indicating that such defenses in the Iranian criminal justice system are primarily applicable to discretionary punishments (Ta'zir), this study seeks to explore whether cultural norms can also serve as a basis for mitigating or altering the fixed punishments (Hudud). The findings suggest that some mechanisms within the Islamic jurisprudential system are compatible with this concept. This indicates that Hudud crimes may also, from various perspectives, be subject to cultural defenses. Consequently, a novel and culturally-informed interpretation of this significant aspect of Islamic criminal law can be offered. This article employs a descriptive-analytical method and examines the perspectives of both Imamiyyah jurisprudence and Iranian criminal law. Additionally, it incorporates viewpoints from Hanafi jurisprudence to provide more comprehensive research outcomes.

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