At the beginning of this meeting, Dr. Hekmatnia said: The theoretical foundations of the laws in the country should be well presented and the principles of scientific and theological activity should be based on them; what is approved and ratified under the title of law has a central core called “chastity and veil”. In the meantime, several theoretical and legal consensuses are also occurring.
Is government intervention in favor of criminal law morally justified?
He stated: In the philosophy of law, regarding legalizing a case and creating a framework and specifying where is law and where is morality?! The boundary between law and morality must be clarified. Every legal case requires moral justification, but how to support the morality of society is another issue. Every legal issue requires moral and jurisprudential justification, but it is important to know where government intervention in favor of criminal law is morally justified?
The member of the Research Council of the Institute for Contemporary Jurisprudence Studies stated: “One thing is certain about this: if someone causes harm, all legal systems accept it as a matter of law. If the case is harassment, individual-centered legal theories come into play. Among these, there are titles that introduce human titles into the system. These are also justified morally.”
He said: “Two important issues have been raised by liberalism, one is whether the legal system should intervene in terms of rules where a person harms himself? The second issue is that if there is no harm and public order is not involved in the sense that it leads to public harm, should law provide criminal protection for the morality of society through moral justification or not?”
Hekmatnia added: “This is a very important challenge. Some say that law is free from morality in this area. These people are asked whether morality is not important to you? They say that the type of morality in this area is not important; This means that if a society perceives morality in a penal sense, it will rot from within; that is, the moral foundations will not be provided in a penal sense.
The prof. of the seminary and university stated: On the other hand, there are many people who enter criminal law in the field of ethics with structures. This difference is not a difference that has been resolved; that is, this issue is a point of disagreement. Ethics is like blood that flows in the veins, and as long as it circulates and connects us to life, no one realizes its value. Ethics greatly reduces the costs of society.
This member of the faculty of the Islamic Culture and Thought Research Institute added: For example, the fact that the severity of crimes decreases during the month of Ramadan is a sign that the moral atmosphere is also effective in the security and comfort of society. The importance of this issue becomes clear when if moral virtues in society fall apart, society will fall apart too.
He said: In the meantime, if we say that law enters the discussion of moral virtues and sometimes has executive guarantees, we have certainly not said anything wrong; but the debate is about how we can enter this field.
Our theory on chastity and sexuality is different from liberal literature
The member of the Farabi Law Faculty of Tehran University reminded: We clearly state that our view and theory on chastity and sexuality is different from liberal literature. They have the principle of freedom and we do not have the principle of freedom to establish sexual relations. We share one characteristic with them. If they do not accept the principle of chastity, they consider the moral principle to be the dominant one; for example, they consider sexual relations with incestuous people and children, etc., morally unacceptable; that is, in cases where it is promoted and contrary to freedom, we share liberal theories.
He said: Liberal systems say that there is no problem with free communication with the consent of the parties. They deal with the slightest reluctance with full severity. Like kissing with reluctance in one of the Western countries that affected the entire country and many officials resigned. They also deal with it severely when there is doubt.
Mr. Hekmatnia stated: In the literature of Islamic law, we did not accept free sexual relations, even with the consent of the parties, and we consider this to be adultery; because it disrupts our cognitive system. The important point is that we have accepted the principle of protection. This principle has a central core, which is the severe part of the work; for example, adultery with incest and with violence, adultery with one’s father’s wife, etc. is a central core. Its second core has a criminal discussion that is subject to the death penalty. Its later parts are also less sensitive, but it is a crime.
The former director of the Law Group of the Islamic Research Center of the Islamic Consultative Assembly said: This criminalization continues morally. The engineering of this area is very wise; that is, it specifies the first core and combines it with different layers and also expresses its derivatives.
He stated: Today, we should discuss the second layer of security; that is, the belt of chastity and hijab is a place where no physical contact is established, but psychological contact is established; That is, someone provokes another. The question here is whether we should enter into moral guarantees or create a criminal layer.
He stated: Today we need to discuss the second layer of security; that is, the belt of chastity and hijab is a place where no physical contact is established, but a psychological contact is established; that is, someone provokes another. The question here is whether we should enter into moral guarantees or create a criminal layer.
Hekmatnia stated: Where today is a serious topic of discussion, where the intention to provoke is not established and there is a carelessness and enjoyment of a person’s behavior; for example, on a highway, someone has removed her hijab and is not seeking to provoke anyone. Here, the discussion is that there is no contact, organization, or provocation. Here, the discussion is whether criminal law should enter or not?
The full Professor of the Islamic Culture and Thought Research Institute said: The discussion is that we have encountered such a phenomenon and we want to dedicate a policy with a program to this issue. The current hijab bill is a confrontation program; that is, what will be our program in facing this issue. This is definitely immoral, but what should our plan be for this area?
He stated: Assuming that this is a crime, if we want to determine a punishment for it. In this discussion, the issue of proportionality of the crime with punishment is not faced because the material element must be established in order to create proportionality, but in moral discussions, this cannot be achieved. So the philosophical concept of it is the subject of discussion. If we want to establish it, we must address the philosophy of punishment; that is, can we implement everything? Do we want to incapacitate at one time and do something that does not allow a crime? We must observe the principles of punishment.
A law that is not created by sitting together!
This prof. of the seminary and university then said: We must philosophically justify that providing service to a person without a hijab will close his business and what will be the limit of closure. All these cases must justify punishment. I wish this law had a philosophical and legal justification because a law that is not created by sitting together. It must have a justification.
The member of the Research Council of the Institute for Contemporary Jurisprudence Studies noted: Let’s assume that this law was passed everywhere. Now it is important where this law should be taught. If it has no basis, it is not defensible. It makes interpretation difficult even for the judge due to the lack of bases.
He continued: At present, we do not want to enter into the discussion of the hijab category. If we want to discuss the basis, if the field of criminal law enters the space of morality in a special sense. Where there is no physical contact and a person has committed a personal religious forbidden act, we must discuss the punishment and its severity, which requires the philosophy of criminal law. In another case, when we want to take affirmative action, we must look at the powers of the state and the rules and values of proportion, and if we do so, the state’s status will be clarified, and if we do this, the issue of its sovereignty will also come into play.
Mr. Hekmatnia added: Sometimes issues arise where there may not be an element of intent, and what should we do if a child or a non-Muslim does something or if a hijab is at the level of a general scholar of society? What is the criterion of disobedience to Allah and who is the ruler is an important point. If we raise the issue of the constitution, certain legal issues arise.
Some crimes must be proportionate and we must determine the punishment
He said: If in the case of criteria, if we want to measure the list of crimes in a category, we mean punishment, but this discussion must be understood in that context. Some crimes must be proportionally measured and the punishment determined. We also have proportional questions within the law regarding that topic.
This member of the faculty of the Islamic Culture and Thought Research Institute concluded: Can we seize the driver’s car as a passenger? For example, how can we deal with these issues. If a woman without a hijab is identified by a camera and is on a bus, can we suspend the bus company? These topics have both deep jurisprudential and legal issues that must be discussed in their place.
Prof. Najafi Bustan also presented his discussion and said: One of the basic principles in theoretical discussions is whether there is a difference between moral and legal issues in terms of punishment? That is, what is the relationship between moral and legal issues?
This prof. of courses outside the Qum Seminary added: If we differentiate between ethical and legal issues in terms of punishment, the question arises: Where does the field of criminal law lie? Sometimes we encounter contradictions that we cannot resolve. This element is also based on the fact that in Islamic law, punishment is prescribed for some matters and not for others.
He noted: If we say that in Islamic law, for any opposition to Islamic law or mandatory rulings that do not have a legal or criminal aspect, we open the hand of the government to intervene in any opposition to Islamic law, the issue will be much more open.
The member of the Scientific Council of the Culture, Art and Media Jurisprudence Group of the Institute for Contemporary Jurisprudence Studies said: The point is that if Islamic law says that for any offense, even if it is not considered a crime from a legal perspective, but has a punishment in Islamic law, is the government free to do anything?
The government can intervene in any crime, but the severity of the intervention of the government is a matter of debate.
Najafi Bustan added: The government can intervene in any crime, but the severity of the intervention of the government is a matter of debate, which should be discussed elsewhere.
He recalled: There is a narration from Muh. ibn Muslim that was asked about someone who drinks alcohol, and the Imam said that this person will be punished, but if someone is a habitual drinker, he should be dealt with severely because if we leave people alone and do not warn them, corruption will spread in society. These narrations have numerous narrations.
The prof. of the Qum Seminary recalled: We have many narrations that are relevant to different topics. We have various narrations that Imam Ali has punished individuals in cases where a legal crime has not been committed; that is, it has been stated that Imam Ali (‘a) would go around the market and if someone committed a violation, he would punish them on the spot. In the Shari’ah, criminalization can be determined for any sin.
He said: There are narrations that show that any violation of the Shari’ah law will be met with the legal treatment of the Shari’ah ruler. These narrations are also among the narrations that do not have any flaws.
The prof. of jurisprudence of Qum Seminary then stated: If we want to have discipline and punishment for every violation, could there be a problem? There will definitely be no problem, and if punishment is carried out, this problem will definitely be solved in the future. When criminalization of amputation in the case of theft was raised, no one would dare to steal. If the rulings are established correctly, no violations will occur.
Mr. Najafi Bustan emphasized in the end: In Islam, the ruler’s hand is open for any discipline and punishment for any sin, and if these topics are explained well, there will be no problem.
It is worth mentioning that at this scientific meeting, questions and answers were also raised between profs., experts, and students.