İslam Hukuku'nda şahıslara karşı müessir fiiller ve cezaları
Physical injuries and their punishments in Islamic criminal law
- Tez No: 20788
- Danışmanlar: DOÇ. DR. İBRAHİM ÇALIŞKAN
- Tez Türü: Doktora
- Konular: Din, Religion
- Anahtar Kelimeler: Belirtilmemiş.
- Yıl: 1992
- Dil: Türkçe
- Üniversite: Ankara Üniversitesi
- Enstitü: Sosyal Bilimler Enstitüsü
- Ana Bilim Dalı: Temel İslam Bilimleri Ana Bilim Dalı
- Bilim Dalı: Belirtilmemiş.
- Sayfa Sayısı: 311
Özet
Özet yok.
Özet (Çeviri)
SUMMARY PHYSICAL INJURIES AND THEIR PUNISHMENTS IN ISLAMIC CRIMINAL LAW Bodily intgrity which is the most importanat personality right is guarantied by law as an indispensable right. For the violance of these rights very heavy corporal and pecuni ary punishments are given in Islamic Law. The act that heavy pnishments are stipulated for these crimes in because of the right that is violated is very important. As a result of the crimes against bodily security, either they loss their life or their bo dily integrity is violated. In spide that both are dealt with under the title of felony: (al- ginâya) the former is called crime against the life:“al-ginâya ala'n-nafs”, the latter is na med“al-ginâya alâ mâ dûne'n-nafs”in the sense of physical injury. Physical injury in a global sense means the whole violances which is commited by some one to anothers body, violating his soul-body integrity without raching to killing him. According to the importance of the physical subject of the violance and the gravity of the physical subject of the violance and the gravity of the unjust offence, physical inju ries are classified from the lighest to the heaviest in detail. The sources of judicial regulations pertaining to the physical injuries are the Qur'an, the Sunna of the Prophet and the opinions of Islamic jurists and court interpreta tions of laws. It is appearent that in the punishment of this crimes, the moral element (subjective criteria) is regarded as basic. For the physical injuries which is classified in two catagories according to its being intentional or unintentional, different pnishments are taken into consideration. Intentio nal physical injuries are consciously and willingly performed actions. The free will of the offender (libre arbitre) is fully directed to an action as well as to its results in this sort of physical injuries. The principal punishment that is stipulated to this crime by the Qur'an and the Sun na of the prophet is retaliation (qtsas) which is based on the principle of the correspondan- ce of the punishment to the crime (tnukâbala bi'l-misl). Yet in order to judge for the retali ation, some conditions must be met. Some of them (these conditions) related to offen ders, and others to victims and some otherones pretain to the criminal act. 291To express in main titles they are; the cases in which the offence is performed consi- ciously; the offender has the liability of being punished (namely criminal capacity that in a human being which involves primarily the ability to distinguish right from wrong); the innocence of the victim; that is, his being under the protection of the law-; The offence is unjust; the fact that there is not any relationship between the offender and the victim (al- magnî aleyh); their legal status is equal; the physical subject of the guilt and the punish ment is similar; the possibility of implementing the retaliation in full sense. In the lack of the pre-conditions of retaliation or in the existence of the causes which makes the offensi ve act legal or permissible (mubah), rather than a prohibition, the heavy punishment of retaliation either becomes pecuniary punishment or it gets totally abandoned. The Sunna of Prophet and the scientific and jurisdictional judgements of Islamic Ju rists consist of the sources for the legistative regulations pertaining to unintentional of fences. Because of the absence of intentional offence at the unintentional offences, for the physical unjuries, fiscal punishment is stipulated here rather than physical punishment. The legal amount of compensation which is determined by the law-maker (the Prophet),, for the physical loss to which the victim is exposed, is called diyet (ad-diya) or more pro perly erş (irsh). The amount of Compensation determined for the total loss of orgnas such as hand, foot, eye, ear, nose as well as senses like mind, seeing, hearing and speaking is the same as for the killing. This amount is 100 camels or equalently 1000 gold cains of di nars or 10.000 (for some Islamic Schools of law 12.000) silver coins of dirham. In light physical injuries, the amount of compensation is not determined by the text rather it is determined by judge or an, expert appointed by judge himself. The amount of compensation here is determined setting up a proportionate anology to the amount which is determined for the heavy physical injuries by the text (Sunna). This is called hu- kumat al-Adl or shortly al-hukûma. In unintentional physical injuries the state of faute (imprudence al-hata') is consie- dened as a valid legal reason. Since offender does neither have any criminal intent nor any guilty will. This is the reason why the compenstaion is paid by asaba who has a blood- relationship or accupational link with the ofender, and by the persons and accupational institutions called âkile in order to help the offender. Thus, both victim and the offender is protected. The compensation is met by the state (Bayt al-Mâl) in the cases which the âki le cannot afford to pay it. The state it self therefore is considered as âkile. Accordingly with its institutions such as akile and similar ones basically established for social solidarity, Islam offers a proper ground that necessary for a social-legal state. 292
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