The Necessity of Limiting the Prison Punishment Based on the Difference of Imprisonment (Habs) and Prison (Sijn) in Juridical Literature and References

Document Type : Original Article

Authors
Gholam Hosein Elham 1
Amir Vatani 2
Mahboubeh Hasanzadeh 3
1 Associated Professor of the Department of Criminal Law at Tehran University
2 Assistant Professor of the Department of Law at Kharazmi University
3 PhD Student of Fiqh and Islamic Law Foundations at Kharazmi University
10.30497/fiqh.2017.2278
Abstract
In religious texts, prison is not considered as a main punishment, but it is as an exceptional tool that is applied just in necessary conditions. The holy legislator allows the application of prison punishment just in a few cases and never considers this issue as a major tool in punishing the criminals. Despite this fact, the legal system in Iran has predicted prison as a punishment for most of criminals and this causes harsh consequences that are resulted due to the increase in the jail population; therefore, the prison-based damages has forced the legal scientists to find a solution for solving this widespread problem. Whereas the main reason of this problem in prison and unusual growing of this punishment in the judicial system of state is ignoring the opinion of sharia which is resulted from the confusion in two concepts: imprisonment (Habs) and prison (Sijn). In this paper, by surveying juridical literature and references, we want to approve the difference between the concepts imprisonment (Habs) and prison (Sijn) and then, by criticizing the legal system of Iran for taking a distance of these concepts and neglecting the opinion of Islam legal system about the limitation of application of prison, we try to take a step towards reforming and refining the rules and reducing the prison punishment in criminal system of the state.
Keywords
Crime
Punishment
imprisonment
prison
ta
zir

  • Receive Date 01 June 2017
  • Revise Date 06 August 2017
  • Accept Date 10 January 2018