التأصيل الشرعي لمبدأ تفريد العقوبة في القانون العراقي

Abstract EN

The convenience of the punishment from the perspective of positive law refers to making the would-be imposed punishment quite compatible with crime's gravity and criminal offender's seriousness.

As for Islamic jurisprudence, this concept was not mentioned therein whatsoever, nor ancient jurists (Islamic law scholars) did refer to it under such a conception.

Consequently, they paid almost no attention in respect with establishing its origins and theorizing it thereupon, even though insignificant patterns of such concept had extensively been applied, as some of its additional models were being applied in a limited manner however.

The research at hand, has handled within its scope the discussion of the notion of punishment convenience commencement and it has been figured out that its characteristic features were primarily initiated through certain opinions basically presented by positivist-school of thought adherent jurists.

Thereafter, the research would have dealt with three patterns of punishment convenience according to law, namely: legislative convenience, judicial convenience, and executive convenience.

Then the study furthermore brought up the discussion of Islamic law (Sharia) roots of these (three) available patterns through basically referring to the Qur'anic verses, Prophetic traditions (hadiths), as well as certain opinions held by Islamic law scholars specifically that of the four Sunni schools of thought which were included in their scholarly discussions made about crimes and appertaining ordained punishments, especially chastising discretionary crimes therebetween.

In addition, the research has been underlining upon conducting a comparison between Islamic jurisprudential and legal opinions and provisions.

The study moreover persistently pursued to explain aspects of agreement and divergence between Islamic jurisprudential and legal resolutions in this regard