“This thought we have now is an European or an Eastern thought. We want to throw it off and have the thought of a human being [Insaan]; Our own thought, an Iranian one, an Islamic one!”, or "“All Institutions of The Islamic Republic should be Islamic and above all are justice and justice system that should be in conformity with Islamic criteria” (Sahifeh Nur. Vol. I. P. 52)". Through many such revolutionary rhetoric, by Ayatollah Khomeini and the sovereign clergy in after revolutionary Iran, the Islamization of criminal sentencing system has been put on the top of political agenda.
Anyway, the concept of human dignity which is regarded as the core of any human rights based criminal justice system of our time has been exposing a fundamental challenge to the criminal theory in Islamic jurisprudence. Specially it becomes a serious question when one focuses on the dilemma of accommodation and balance of the universal and the particular in Islamic law. "Pathways of Human Dignity, From Cultural Traditions to a New Paradigm, was the title of an international research conference organized by the European Science Foundation, which took place on 31 October - 4 November at the Vadstena Klosterhotel, Sweden. Here is an abstract of my presentation on Understandings of Human Dignity in Islamic Criminal Theory and Iranian Post Revolutionary Practice at this most interdisciplinary event:
There is at least two polarized conception of Human Dignity in the Islamic legal theory. The first and governing conception, until now, suggests that human dignity is a changeable legal attribute i.e. non inherent in the Being. It means a human being has dignity as long as he obey the Islamic rules or better said Allah’s convictions expressed in Islamic texts i.e. the Koran and sound Tradition of prophet and Imams (for Shia faith)
According to this understanding, Islamic punishments, including corporal punishments like death penalty, amputation, whipping and stoning, has no conflict with the conception of human dignity because when a person commits those offences punishable (like adultery punishable by stoning or whipping) by these divinely-commanded sanctions, he/she loses his/her Allah’s given dignity and even might descend into animality. For this reading of Sharia rulings the dignity is not a “right” rather it is a product of exercising religious duties. It seems the post revolutionary Iranian criminal justice system has been shaped due to this understanding.
But there is an alternative perspective among some progressive Muslim jurists, like Dr Abolhasan Banisadr, although they are still in minority in Muslim majority societies. They say the human dignity is rooted in freedom and choice and is an immutable right and inherent attribute not only for human being but also for all creatures. In this perspective, although human being might ignore his/her freedom and dignity and commits a crime but nobody and no law has right to violate his/her inherent dignity. Hence, punishment system should be restorative and compensating, and has aim to make things as right as possible. It should help the offender to remember his/her freedom and rights not vice versa. In this view, faith helps the offender to understand the perceive punishment as a kind of worship. Therefore, punishment, according to this religious discourse on human dignity, cannot itself violate the human rights, particularly cannot be degrading and humiliating. The advocates of this understating, as they criticize some modern cruel punishments like imprisonment in some modern societies like USA under cruel situations, reject corporal punishments as well. Instead, by referring to different verses of Koran they suggest different communicative, restitutive and restorative ways of justice.
In this presentation I highlighted both these versions of Sharia criminal law in the context of post revolutionary criminal justice in Iran and then try to evaluate the dominating version in the light of human rights standards and also realities of criminal justice in today’s Iran.
For a schematic view of the question of Human Dignity as related to Islamic Justice in Iran Download aspects_of_hd_in_iran.pdf
On Death Penalty and Human Diginty in Iran and Islam, Download Book on Death Penalty-Final edit sep2010
Download the New Draft of Penal Code of Iran New_Draft_of_the_Law_of_Islamic_Punishment_2007.doc