Reappraisal of the Nature and Evidences of Waging War (Muḥāriba) in Crimes against Public Order
Journal Title: فقه و اصول - Year 2014, Vol 46, Issue 96
Abstract
In Islamic penal law, most of the crimes against national and social security are gathered under the title muḥāriba (waging war); whereas, in jurisprudence, there is disagreement about the nature and criteria of muḥāriba and the concept of arms in muḥāriba. However, by research and delving into evidences derived from jurisprudential texts, a true definition of this category can be achieved, according to which muḥāriba would be the intention to intimidate people by using whatever that frightens and panics them, causing disorder in society. According to this viewpoint, the title muḥāriba, is semantically expanded to include armed and unarmed, contrary to the fact that according to article 183 of Islamic Penal Law, the legislator has regarded muḥāriba as subject to be armed. Nevertheless, there are certain crimes among those against public security that according to the jurisprudential evidences, are true instances of the crime of muḥāriba and the basic components and elements of this group of crimes fully conform to the crime of muḥāriba. However, in crimes against public security, the legislator has considered only a limited number of these crimes as muḥāriba; in some he has not made any reference to the crime perpetrated as being muḥāriba, and in others has looked at this title with suspicion. Similarly, in some cases, he has set the anti-government activities and the intention to confront the ruling system as the criterion for judging as muḥāriba.
Authors and Affiliations
Sayyida Qudsiya MūSavī Mashhadī, Sayyid MuḥAmmad Mahdī QabūLī DurafshāN, MuḥAmmad ḤAsan Ḥā’Irī
Keywords
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- EP ID EP184497
- DOI 10.22067/fiqh.v46i16.12727
- Views 96
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