Jurisprudential (fiqhī) Feasibility of Transition from Corporal Punishments

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This article is published in the Persian journal of Fiqh, Volume 24, Issue 90, Winter 2018, Pages 39-70.

Jurisprudential (fiqhī) Feasibility of Transition from Corporal Punishments
Rahm Nobahar (Ph. D)
This article searches for jurisprudential (fiqhī) foundations that allow exemption from corporal punishments. It insists that all kinds of corporal punishments mentioned in Islamic texts were normal forms of condemnation in pre-Islamic era and they have only been ratified by Islam. Such laws cannot be understood as permanent parts of Islamic law. Rationally speaking, it is the objectives of the punishments which are relevant. Due to the instrumental nature of punishment, its form does not matter and therefore can be flexible. Moreover, neither punishment itself nor the related discussion is of the acts of worships (ībādāt). Therefore, the related laws should not be understood in terms of mysterious issues. The article also argues that corporal punishments in our time make many people averted from Islam. Considering the above-mentioned arguments and the vast authority of Islamic government over the implementation of punishments, it is permissible to cancel corporal ones. Furthermore, some characteristics of corporal punishments such as their inefficiency and their role in people’s aversion to Islam cast serious doubt on their religious permissibility. The alternatives of corporal punishments in case of their cancellation is not of the concern of this article.
Keywords: Islamic criminal law, Bodily punishments, stoning, lashing, amputation.

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