نوع مقاله : مقاله پژوهشی

نویسندگان

• یاسر تک فلاح ¹
• سید محمد حسن مومنی ¹
• سیدمحمدعلی امیری ²

¹ استادیار گروه فقه و مبانی حقوق اسلامی دانشگاه علامه طباطبائی، تهران، ایران

² دانش‌آموخته سطح چهار حوزۀ علمیۀ قم، قم، ایران

چکیده

از نگاه قرآن کریم و روایات، نسبت به رفتارهای گوناگون بشری احکامی انشا گردیده که برخی از آنها الزام آور است و انجام آن رفتارها خواه از جنس فعل و خواه ترک فعل، به دلیل نقض و مخالفت با احکام الزامی مستوجب عقوبت و مجازات­هایی گردیده است. ارتکاب رفتارهای مزبور که  مخالفت و نقض احکام شرعی است در ادبیات دینی با عنوان گناه، معصیت و جرم دینی شناخته می‎شوند و هر گاه در قانون جرم انگاری شوند از منظر قانونی نیز جرم به حساب می‎آیند. یکی از مسائل مهم بررسی ثبات و تغییر پذیری  معاصی شرعی، اعم از بخش جرم انگاری شده و غیر آن است. این پژوهش در صدد آن است که جرائم شرعی را  از جهت ثبات و تغییر و ادلّه آن با روش توصیفی-تحلیلی مورد کنکاش و واکاوی قرار دهد. جرائم و گناهانی که اولاً با فطرت اولیه و مصالح انسان منافات داشته باشد و موجب ضرر و فساد و افساد در حیات دنیوی و اخروی وی گردد و ثانیاً به حکم اولی جرم شناخته شده باشند، همگی ثابتند و دچار تغییر و دگرگونی نمی­شوند. در مقابل، آن دسته از معاصی که به نیازهای تغییرپذیر انسان مربوط باشد و عادت­ها و آداب و رسوم و عوامل دیگر در آن موثر باشد، جزء جرائم متغیر و غیر ثابت قرار می­گیرند.

کلیدواژه‌ها

• "تغیّر"
• "ثبات"
• "جرم"
• "عنوان اولی"
• "عنوان ثانوی"

موضوعات

• قرآن و معارف قرآنی

عنوان مقاله [English]

Criterion of stability and change in sins and Shariah crimes

نویسندگان [English]

• yaser takfallah ¹
• smohamad hasan momeni ¹
• SeyedMohammadAli Amiri ²

¹ Assistant Professor, Department of Fiqh and Basics of Islamic Law, Allameh Tabataba'i University, Tehran, Iran

² Graduate, fourth level of Qom seminary, Qom, Iran

چکیده [English]

rom the point of view of the Holy Qur'an, a crime is doing an act or speech that God has forbidden and there is a prescribed punishment for it, or it is the abandonment of an act or speech that is considered obligatory and its abandonment is considered to be punishable.
To be guarded that all examples of crimes are under the two general headings of forbidden acts or obligatory abandonment or, in other words, disobeying God's commandments and prohibitions of God Almighty and it can be said that the one who disobeys these orders and prohibitions deserves the punishment that will befall him in this world or the hereafter.
One of the important points in this discussion is the issue of stability and change in crimes. Criminal acts such as oppression, theft, lying, adultery, usurpation, etc., which are considered in the Qur'an and Islamic traditions (Ahadith) under the headings of sin, rebellion, crime, etc., are they fixed and unchangeable? This means that in any era and time, these titles are observed as a sin and a criminal act, and with the passage of time, the changes of age, habits, and customs have no role in it or it may be variable and have its own ruling in every situation and time? What is the criterion of stability and change in crimes?
In response, it should be said that there are two criteria for determining stability and change in crimes, each of which complements the other.
The first criterion for the stability and immutability of crime is its opposition to divine-human nature, Islamic orders and rulings are in harmony with the divine nature of man, which is created based on monotheistic tendency and man is the only being in this world who is dynamic, innovative and creative. He can be active in any way he wants and is not influenced by time and place requirements in such a way that he is deprived of his freedom. Human will is superior to everything. In other words, man often creates the requirements of his time, and it is not the case that time puts him under its control. On the other hand, Islam has laid down general laws, the principle of which does not find any difference due to the difference of complications, but has estimated their branches and details in such a way that it provides the interests of individuals and communities in different situations and cases and at the same time, that general law, the guarantor of the integrity of the monotheistic nature, which acts in order to protect it, is not abandoned, but in such a way that all the details revolve around the axis of the same law, such orders and prohibitions is the axis of fixed and constant human needs, which the difference and transformation of time and place do not cause a difference in them. On the other hand, in the Shariah of Islam, according to the real benefits and corruption, orders and prohibitions have been made, according to the teachings of the Qur'an and narrations, it is a natural religion. Therefore, the basis of religious laws has been divinely established in order to preserve and protect this divine nature. But the truth does not create an unmanageable bottleneck for human beings and human life. Rather, in the position of adapting to the social conditions and surrounding, environmental and temporal realities, special jurisprudential attention has been paid to the necessary requirements and requirements of these areas and the secondary titles as well as the necessities under the rule "necessities cause prohibitions to be lifted" have been carefully considered and in this way, specific examples of various requirements have been covered over time in the form of secondary titles and mandatory necessities, and at the same time, the principle of naturalness of the rulings has also been preserved.
Another criterion is the survival and truth of the general sentence; the ruling is for the stability and non-change of criminal acts if the title of the first ruling is true. But if, for any reason, it is placed in the scope of secondary titles, in this case, either their criminality is unstable and changeable, and so-called, they lose their status as actuality, or at least the right to be impeached is removed from them, and in any environment and a situation has its own rule based on the title of secondary importance. It should be noted that some of the rules and prohibitions of the Shari'ah which are considered a sin and a crime to oppose them are related to the changing needs of human beings and habits, customs, contracts, environment, and also the states of people have an effect on their implementation. The criminality of this kind of action is not fixed and variable and it is different for different people and situations.
According to the mentioned points, we come to the conclusion, that one of the characteristics of the Qur'anic-narrative teachings is that they strictly pay attention to the basic and fixed needs of man, as described, and subordinate the changing needs to the fixed needs. He has known and this characteristic is a miracle that has been used in the legislative structure of this Hanif religion.
Social regulations and what has been imposed on us from the living environment are covers that cover our reality and fixed and unchangeable elements; the greatness and uniqueness of the legislative system at the level of the Holy Qur'an is that while stating the fixed and unchanging rules and regulations, it has taken the initiative to establish general laws and basic orders that any group in any time and place can find desirable subjects and the way to perfection. And get their happiness and what causes them loss and corruption at that particular point in time, and recognize their duty. The Holy Qur'an and authentic narrations have laid down orders and laws in general for the establishment of justice and the interests of individuals and society, and the fact that it does not have a fixed form is because the interests and corruptions change due to different circumstances and environmental requirements.

کلیدواژه‌ها [English]

• : Change
• Stability
• Crime
• Primary Title
• Secondary Title