Feasibility of Invoking Cultural Norms in Mitigating or Modifying Hudud Punishments (According to Imᾱmῑ Jurisprudence, Iranian Criminal Law and Hanafi Jurisprudence)

Maali, Mahdia; Alishahighalehjoughi, Abolfazl

doi:10.22034/mfu.2024.141314.1427

Feasibility of Invoking Cultural Norms in Mitigating or Modifying Hudud Punishments (According to Imᾱmῑ Jurisprudence, Iranian Criminal Law and Hanafi Jurisprudence)

Document Type : Original Article

Authors

¹ PhD Student, Department of Jurisprudence and Criminal law, University of Motahhari , Tehran, Iran.

² Associate professor, Department of Theological Education, Farhangian University, Tehran, Iran.

10.22034/mfu.2024.141314.1427

Abstract

In contemporary societies, the coexistence and interaction of diverse cultures highlight 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. Despite the lack of evil motive in some crimes, considering cultural beliefs, especially in cases where malicious intent is absent, to some extent is desirable, provided these beliefs do not lead to criminal behavior. Accordingly, major legal systems typically consider such defenses when determining sentences.
Although the research background indicates that such defenses in the Iranian criminal justice system are primarily applicable to discretionary punishments (ta'zῑr), this research seeks to explore "whether cultural norms can also serve as a basis for mitigating or altering the fixed punishments (ḥudūd)?" Findings suggest that some mechanisms within the Islamic jurisprudential system are compatible with this concept. This indicates that crimes deserving ḥudūd 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 is offered. Using the descriptive-analytical method, in addition to the perspectives of both Imᾱmῑ jurisprudence and Iranian criminal law, this article examines the Hanafi jurisprudence regarding the issue to provide more comprehensive research outcomes.

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