According to the information base of the Contemporary Fiqh Research Institute, the 246th scientific session of this institute was held on Wednesday, December 10, 2025, with the participation of professors, researchers, and those interested in penal fiqh. This session, organized by the “Fiqh of Judiciary and Punishment” group and featuring a presentation by Hujjat al-Islam wal-Muslimeen Ali Mohammadi Jurkuyeh and a critique by Dr. Shahrdad Darabi, Associate Professor at Islamic Azad University of Qom, took place in the institute’s conference hall.
At the beginning of the session, the session secretary, Hujjat al-Islam wal-Muslimeen Dr. Gholamreza Piyvandi, while welcoming the attendees, referred to the importance of the session’s topic and stated that the issue of criminalization in the domain of ta’zirat is “one of the most challenging topics in the legislative system of the Islamic Republic” and requires a precise rereading of fiqh foundations and their adaptation to the contemporary needs of society.
In the continuation of the session, Mohammadi Jurkuyeh began his remarks by explaining the position of determined and undetermined offenses in Islamic fiqh, reminding that the main difficulty in criminal legislation lies not in hudud and diyat offenses, but in ta’zir offenses; where there is no specific shar’i text, and the Islamic ruler must organize criminalization and punishment based on valid criteria.
The member of the Fiqh of Judiciary and Punishment group at the Contemporary Fiqh Research Institute, referring to the complexities of legislation in the Islamic Republic, said: “Our main problem is with undetermined offenses; where we must decide which behavior to consider a crime and what type and amount of punishment to determine for it.”
The presenter then explained in detail the three well-known criteria among jurists that have been raised over various centuries:
- Criminalization of every prohibited act
According to this view, every prohibited act or omission of an obligatory act that does not have a specified hadd can be subject to ta’zir. Jurists such as Abu Salah Halabi, Ibn Idris, Muhaqqiq Hilli, Allamah Hilli, and some contemporaries have accepted this opinion.
- Criminalization solely of major sins
Some jurists, relying on the verse “If you avoid the major sins which you are forbidden…,” believe that only major sins are capable of criminalization. The author of Jawahir, Ayatollah Khoei, and some others have strengthened this view.
- Criminalization in case of repetition after prohibition from evil
Another group believes that ta’zir should be applied only when the individual, after being prohibited from evil, insists on committing the prohibited act. Jurists such as Fadhil Hindi, Muhaqqiq Isfahani, and Ibn Fahd Hilli have raised this opinion.
Professor Ali Mohammadi Jurkuyeh critiqued the three well-known criteria and, through examination of narrations, usul foundations, and practical consequences of each of the three criteria, critiqued them. He emphasized that none of these criteria can serve as a binding basis for the Islamic ruler.
In part of his remarks, he said: “The narrations mentioned for the rule ‘ta’zir for every prohibited act’ at most prove the permissibility of ta’zir, not its obligation; therefore, it cannot be concluded from them that every prohibited act must be criminalized.”
The member of the Fiqh of Judiciary and Punishment group at the Contemporary Fiqh Research Institute also explained regarding the second criterion that reliance on the verse ﴾If you avoid the major sins which you are forbidden, We will expiate your (minor) sins and admit you to a noble entrance﴿ pertains to the Hereafter and cannot serve as a basis for negating ta’zir in this world.
Regarding the third criterion, he also emphasized that the narrations related to ta’zir in cases of repetition are “personal cases” and do not have general applicability.
In the final part of the presentation, Professor Mohammadi Jurkuyeh explained his proposed criterion as follows: “Criminalization in the domain of ta’zirat must be based on mafsadah; that is, wherever failing to criminalize causes social harm, disruption of public order, or threat to societal interests, the Islamic ruler can intervene.”
He added that the authority of the Islamic ruler in this domain is “permissive” rather than “obligatory,” and the distinction between determined and undetermined offenses itself indicates this very authority.
In the continuation of the session, Dr. Shahrdad Darabi provided a scientific critique of the presented view. While appreciating the presenter’s effort to reread the foundations of criminalization, he warned about the breadth of the concept of “maslahah.”
Darabi said in part of his remarks: “If we accept the criterion of mafsadah without a precise regulation, the scope of the ruler’s authorities may become excessively broad and lead to uncertainty in the criminal system.”
Dr. Darabi also emphasized that it must be specified that maslahah in this discussion “pertains to what level of social harm” and what mechanism exists for its detection.
The Associate Professor at Islamic Azad University of Qom, in another part of his critique, added: “The presenter’s proposal is executable only if we can provide objective indicators for detecting mafsadah; otherwise, the criterion remains ambiguous.”
The session continued with questions and answers from the attendees, and topics such as the relation of criminalization to Islamic criminal policy, the role of custom in detecting mafsadah, and the feasibility of compiling combined criteria were raised.
At the end, the session secretary, in summarizing the discussed topics, noted: “The Contemporary Fiqh Research Institute will pursue this topic through sessions and research projects to contribute to the compilation of more precise and effective criteria in the domain of ta’zir criminalization.”