نوع مقاله : مقاله پژوهشی
نویسنده
استاد، گروه فقه شافعی، دانشکده الهیات، دانشگاه تهران، تهران: ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Istiḥsān, as a method of juristic reasoning within ijtihād, has undergone significant semantic developments and has ultimately come to be understood as departing from general rules and analogical reasoning (qiyās) in favor of a stronger rule or analogy, or applying the stronger of two proofs (aqwā al-dalīlayn). This method of juristic reasoning, which is associated with the concepts of public interest (maṣlaḥah) and the objectives of Islamic law (maqāṣid al-sharīʿah), is applied where the implementation of general rules or general legal rulings leads to an outcome that is inconsistent with the spirit of the Sharīʿah and its overarching objectives. In such circumstances, istiḥsān serves to overcome a juristic difficulty and provide a solution to practical problems. Despite the emphasis placed by the Constitution of Iran on adherence to the officially recognized school of Islam, and notwithstanding the Imāmī consensus regarding the invalidity of istiḥsān, Iran's criminal policy has, in practice, been influenced by and, in certain instances, shaped through istiḥsān-based approaches. In numerous cases, its underlying principles and norms have been excluded from the application of general rules and subjected to different rulings in response to political and administrative considerations. This article examines the semantic transformations and conceptual development of istiḥsān and analyzes its influence on criminal policy in Iran. Employing a descriptive-analytical method, the study seeks to demonstrate one dimension of the pragmatism underlying the exercise of criminal-policy functions in Iran. The findings indicate that istiḥsān, understood as departing from general rules and resorting to practical solutions, has permeated various levels of Iran's criminal policy.
کلیدواژهها [English]
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