نوع مقاله : مقاله پژوهشی
نویسنده
گروه فقه و حقوق جزا، مؤسسه عالی فقه و علوم اسلامی، قم، ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Context & Objective: The determination of blood money (diyah) for the paralysis (shallal) of body parts is a fundamental issue in Islamic jurisprudence and the Iranian Islamic Penal Code of 2013. Article 564 of this code stipulates that paralyzing any organ with a fixed diyah requires the payment of two-thirds of its full value. This article aims to critically analyze the jurisprudential foundations of this rule and evaluate whether a uniform two-thirds rule is supported by primary religious sources or if a more categorized approach is necessary. The discussion explores the linguistic and technical definitions of paralysis—defined as the loss of an organ's primary function due to injury—and investigates the divergence between the prominent Imami view and alternative Sunni or contemporary Shiite perspectives.
Method & Approach: The research adopts a doctrinal approach based on classical and contemporary jurisprudential texts. It evaluates the linguistic roots of paralysis to establish its legal scope as the total loss of an organ's primary benefit. The methodology involves a comparative analysis of primary religious evidence including the Sahih of Fudayl ibn Yasar and the narrations of Yunus and Zarif. Furthermore, the study scrutinizes the validity of the alleged consensus (ijma) and the principle of Tanqih al-Manat to determine if the rules governing hands and feet can be generalized to all other bodily members.
Findings: The findings indicate that the two-thirds rule in Article 564 is largely derived from specific narrations regarding the fingers but has been inappropriately extended to all organs. While the prominent view supports fractional compensation religious evidence suggests that paralysis resulting in the total loss of an organ's primary function—such as in the eyes ears or tongue—warrants a full diyah. The analysis reveals that the current legislative framework creates ambiguity and lacks proportionality. Specifically, the study finds that for many bodily members where no specific fixed diyah is mandated the law should rely on Arsh which is an unfixed compensatory amount determined by expert opinion and forensic medical assessment rather than a fixed legislative fraction.
Conclusion: The study concludes that the generalized application of the two-thirds rule in Article 564 of the Islamic Penal Code is jurisprudentially inconsistent and requires reform. The author proposes a quadruple categorization for legal clarity: two-thirds diyah for the paralysis of fingers; full diyah for the paralysis of hands and feet based on specialized narrations; full diyah for major sensory and functional organs where paralysis equals total loss of utility; and Arsh (the non-fixed blood money determined by experts) for all other members not explicitly covered by religious texts. Such amendments would ensure the law aligns with the principles of justice and the detailed requirements of Islamic legal tradition.
کلیدواژهها [English]
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