الجريمة و العقوبة في الفقه الإسلامي : دراسة فقهية مقارنة بين الشريعة و القانون

الملخص EN

The term crime and its derivatives are repeated more than sixty times in the Holy Qur’an.

The concept of crime gives the meaning of iniquity and sin.

It includes all sins.

Most of the jurists went to say : the crime in the legal terminology is synonymous with the felony in the jurisprudential terminology.

Man-made laws agreed with Sharia in terms of the sentence on the basis that the act was considered a crime ; If this act harms the interests of the individual or society, but it differs with the Sharia in the scope of this foundation and its breadth and the ideas behind this basis, then Sharia, for example, is concerned with religion, morals, honor, and the mind guarding from what corrupts it.

On this basis, there were a penalties for apostasy or the crime of apostasy from religion, the penalty for adultery, drinking alcohol and the penalty for theft, and there are no such penalties in the man-made criminal laws.

The crime has three elements : (the legal element, the material element, and the moral element).

The criminal intent in Shari’a is not different from the law; Both of them require the presence of intent in intentional crimes, and are not required in non-intentional crimes.

The evidence for proving the crime in the sense of what is inferred by correct consideration in it of a practical legal ruling by way of definitive or preponderance of suspicion and the evidence if the possibility enters into it the invalidity of inference.

The crimes of adultery and theft are proven by acknowledgment and evidence in conditions of reason and choice of the acknowledged.

The basis for the legislation of punishment for the crime stems from the keenness of Islamic Sharia to compel people to obey its commands and prohibitions voluntarily obedience that emanates from the depths of the soul.

In achieving this voluntary obedience, Sharia relies on awakening religious feelings in souls, stirring up the meanings of faith in hearts, and reminding people of the Doomsday and indicating what in its commands and prohibitions of good and for benefit for people in the immediate and long term.

The penalties in Islamic law vary according to the extent of their targeting of the public interest, and to the extent that pays off corruption and achieves public safety.

Every crime must have evidence that proves its occurrence and entitlement to punishment, and that there are differences between hadd punishments, retribution and punishments ; Each term has its own legal and jurisprudential definition, with their ramifications into specific types and characteristics.

Neither Sharia nor law left the power to implement punishments absolute, but rather restricted them to a disciplined authority ; to establish the hadd punishments represented by the legal ruler and the authorized judge who gathers the conditions for implementing laws to maintain security and safety so as not to spread chaos that leads to the loss of rights and the dissemination of injustice.

There are differences between hudud, retribution, and punishment.

Each term has its own legal and jurisprudential definition, with their ramifications into specific types and characteristics Neither the Sharia nor the law left the authority to implement absolute punishments, but rather restricted them to a disciplined authority ; to establish the hadd punishments represented by the legal ruler and the authorized judge who collects the conditions for implementing the laws to maintain security and safety so as not to spread chaos that leads to the loss of rights and the dissemination of injustice ; and to ensure public safety that leads to the preservation of the public interest.