These days after a new case of stoning_in_iran we see a rising critical debate in Iran on Sharia criminal sanction
system and its application in the today's societies. Mr Jafar Kiani was stoned
to death last month in a village in north-west Qazvin province. Under
Iran's Law on Islamic Punishment adultery is a capital offence, punishable, indeed after being proved through a special and strict criminal procedure, by stoning. This time the Iranian Judiciary has also officially confirmed that a "man" has been stoned to death for adultery.
As the BBC World News reports, this is the first time that the Judiciary of Iran has confirmed such a sentencing in five years.
To my daily observation,
together with in the last days' mass
executions of so-called “Arazl va Aoubash” (a non legally defined term
invented by Iranian police to describe violent criminals)in Iran
might bring the number of executions carried out in the Islamic republic so far
this year to at least
160, most of
them by hanging and
in public. (Here you can see the images of latest public hanging in Iran)
Iran, according to Amnesty International, continues to have one of the highest rates of executions in the world. Amnesty International has recorded at least 120 executions since the beginning of 2007, suggesting that by the end of this year the total number of executions could exceed the total of 177 executions that Amnesty International recorded in 2006.
The shocking_details_of_STONING (sangsar)_case_in_Takistan was so hard to be believed that this time one even can hear dissent voices from the inside of Hawzeh. Ayatollah_Musavi Bojnurdi, a high ranking Muslim jurisprudent, here argues that stoning is an invalid, non-Koranic tradition. In this interview he obviously claim that in 1981 Ayatollah Khomeini has had issued an official circular by which he prohibited the judges to implement stoning. The problem, however, with his remarks is that, firstly, this circular is still for many observers of Iranian criminal justices system unclear and inaccessible; and secondly, if Ayatollah Bojnurdi, who himself was a member and actor of the then the Supreme Judicial Council of Iran for about seven years (1980-1987), was aware of this circular, why then he reveals this very important fact now, in 2007!; thirdly, if Ayatollah Khomeini has had issued such decree why there are several cases of stoning sentencing upheld in 1980s in Iran.
A recently published view point/fatwa (Montazeri_on_stoning.doc here) by Ayatollah Montazeri concerning the sentence of stoning is readable. By using the terminology of Sharia criminal law, he obviously rejects the possibility of application of the stoning sentence in contemporary societies of Muslim majority countries like Iran. But the most readable is the new Fatwa of Ayatollah Saanei, a reformist jurist so-called Grand Ayatollah (Marja')in Shia, a former member of the Council of Guardian 1980-1981 (Showrai-e Negahban) and Iran's Prosecutor General from 1982-1985, in which he explicitly states: "in our time i.e the time of absence of 12th Imam, and according to jurisprudential views of some noted Ulama like Mirzay-e Qomi, the implementation of Hudud crimes/punishments are subject to doubt and might be suspended. They should be replaced by Ta'zir category". This fatwa is also accessible here!
On the question of Stoning in Sharia and Iran's today the Shahrvand-Emrooz Weekly has recently interviewed Ayatollah Mohammad Hassan Marashi Shushtary, a prominent Shia criminal jurisprudent and the former deputy of judicial affairs of the Head of Judiciary. In this interview he supports the traditional doctrine of Non-Applicability of Hodud, including stoning and other corporal punishment, in our time. This weekly has also published two other readable pieces on the case of recent Stoning in Takestan; the first one is a good descriptive report on details of the day of sentencing in Takestan written by V. Khalili and Shiva Zarabady, and other is a critical analysis from legal, social and Sharia perspective on this kind of sentencing titled "Sang-Saar"by Mr E. Baghy.
Further, an English article with the title of Adultury and Quranic Punishment by Prof. Asghar Ali Engineer, a prominent Muslim Indian intellectual and scholar who greatly defends pluralism among Indian Muslim society, is very instructive as well. In this essay he clearly shows that the stoning is agaisnt the Qoranic rules on punishment. (Download adultery_and_quranic_punishment.doc)
Anyway, I personally believe that the problem with the traditional and political Sharia criminal law as practiced in Iran today is deeper than changes in some fatwa or issuing new decrees to make it compatible with the modern thought. This is a matter of differing paradigms of law. I myself have done my PhD on this fundamental question and would like to put an abstract of that work below:
The question of the Stability and Change is considered as one of the fundamental questions of all legal systems. On the one hand, law calls for stability, continuity and order and on the other, its field of application, i.e. the human society, and its subject matter, i.e. men and their interrelations, and their relations with nature are subject to constant change. Although it is impossible to separate the immutable from the mutable in practice, the mingling of the two leads to a lot of fallacies. Thus their theoretical distinction is an absolute and scientific necessity. In any case, creation of a logical and reasonable balance between these two aspects of the relations between law and society is considered one of the most significant objects of any developed legal system.
The mutual relations of social changes and legal changes are considered as the most complex and controversial question in Islamic jurisprudence. On the one side, the Muslims societies face the religious sacred Texts, including the Book (Koran) and sound Traditions (Sunna), and on the other side, they have to accommodate themselves to the vast manifestations of modernity and its rapid social, cultural, economic and political changes, particularly as the intensive process of globalization, which have embraced these societies. So the vital question, which is raised due to the increasingly developments and changes of the modern society, is how the Muslims can remain devout Muslims while enjoying a reasonable and efficient criminal justice in the modern world.
To my view, even by presuming the universality and eternality of Islam as a Religion before God, one can try to find a theory for this question in the context of the modern Iranian Society. My inquiry, however, shows that the question of Stability and Change can never find a reasonable answer so far we are in the traditional and also governmental reading of Islam. Because that the classical Fiqh is based on the several ontological, theological, epistemological, anthropological, linguistical and hermeneutical assumptions and presuppositions which are not compatible with the contemporary understanding of human being from Criminal Justice. Therefore the chief way to make the Islamic Criminal Justice compatible to the exigencies of modern Muslim societies is rethinking and renewing Fiqh assumptions. To do so we should transfer from the letters of Sharia to its Spirit. Through a hermeneutical reading of John Rawls’ theory of Justice, particularly his Original Position Argument, and considering Habermas’ theory of Ideal Speech Situation-where power is absent- we suggest a new theory of the Goals of Sharia (meanly the Towhid as the meaning center of Islamic sacred texts, the Freedom, the Equity and the Responsibility as ultimate goals) in order to distinguish the Immutable from the Mutable.
To modernize Islamic Criminal Justice as to be compatible with progressive international human rights standards all criminal institutions and rulings which are not really serving those ultimate goals of the Sharia are illegitimate. But the most important question is that in case some rulings of Islamic Criminal Justice proved not to be compatible with those ultimate goals, how can we change or reform them, and on which bases this change takes its legitimacy? According to our theory all laws, such as retaliation (Qisas), specified compensations for injuries (Diya), the execution of Apostates, the Stoning of Adulterers, the Liability of the murderer’s male relatives for his offence, cutting the thieves’ hands, and whipping sexual offenders could be changed because these laws are not desirable per se. As the history of Islamic Criminal Law shows all of them are basically a matter of ratification of pre-Islam Arabian community. Therefore they were just means towards reaching final goals of Sharia.
To determine whether a criminal ruling of Islam is mutable or immutable and to answer the question about the domain of the Mutable and the Immutable, or in other words the question of how to link the immutable elements with the mutable ones, I suggest the Hermeneutical Experience of Sharia texts, by which the Islamic Criminal Justice can be translated due to space and time exigencies into a System of Rights, instead of the premodern system of religious obligations.
Last but not least; for the full text of my PhD thesis on this question click here!