Reexamining the Relationship between

Roustaie, Mehrangiz; Kakavand, Mohammad

doi:10.22034/mfu.2025.142908.1518

Reexamining the Relationship between "Custom" and "Shar'" in Justifying Child Punishment and Discipline: A Case Study of Paragraph T, Article 158 of the Islamic Penal Code

Document Type : Original Article

Authors

¹ Assistant Professor, Department of Law, Faculty of Literature and Humanities, Malayer University , Malayer, Iran.

² Assistant Professor, Department of Islamic Studies, Faculty of Literature and Humanities, University of Malayer, Malayer, Iran.

10.22034/mfu.2025.142908.1518

Abstract

The inclusion of child discipline by parents and legal guardians in Paragraph T, Article 158 of the Islamic Penal Code, which despite fundamental differences, is mentioned in doctrine as a justifying factor for crime and in the recent statement of the legislator as a barrier to criminal responsibility, may not only expose the legislator to accusations of legalizing child abuse but could also lead to its reduction to a simple parental right by law enforcers and subjects. What is important in preventing such outcomes is the correct interpretation of the conditions that validate the legal character of this behavior. However, with the conditioning of child discipline justification to "conventional limits" (hadd-e muta'ᾱraf) and "religious limits" (hudūd-e shar'ī), and the ambiguity in their relationship with each other, such interpretation is not easily possible. Therefore, adding the condition of religious limits to conventional limits in the Islamic Penal Code of 2013 has not only failed to reduce the ambiguity in the criteria for child discipline as a legal matter but has also made it more difficult for the judicial authority to distinguish by combining these two criteria. Consequently, this research, based on a descriptive-analytical method, by referencing the law's differential-protective approach in dealing with children, argues that the conventional limit of discipline, which has contextual and interpretable criteria, should be qualified by lenient readings of religious limits, which have determinable instances, so that the institution of child discipline and punishment in various laws aligns with the broader trend of legal protections for children.

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