Life and limb: irreversible hadd penalties in Iranian criminal courts and opportunities to avoid them
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Date
04/07/2013Author
Fraser Fujinaga, Antonia Desideria Leask
Fraser, Antonia Desideria Leask
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Abstract
This is a study of hudud - Islamic 'fixed penalties' - as they appear in Iranian law and
courts. It first presents the codified laws and underlying elements from Twelver Shi‘i
law (as interpreted by the Iranian legal community) governing the penalties of
stoning for adultery, amputation of four fingers for theft, and execution for sodomy
and certain variants of fornication (illicit carnal congress between unmarried males
and females). It subsequently observes how these laws and concepts are used in
practice by analysing previously unavailable court documents pertaining to theft,
sodomy, fornication and adultery trials. It thereby seeks to discover opportunities for
avoiding these hadd (singular of hudud) penalties, which are termed ‘irreversible’
because they change the condemned irrevocably by killing or maiming them.
The material collected suggests several patterns characterising the application of
hudud in Iran. The law itself provides so many opportunities for lenience that in most
cases, irreversible penalties could theoretically be avoided. However, the law is often
so vague that judges have enormous discretion about how to interpret and apply it.
This is exacerbated by the fact that the codified law is underlain by Shi‘i texts which
jurists, judges and lawyers acknowledge as the true and authoritative source of law.
The law’s vagueness necessitates recourse to these texts, but different texts and
interpretations thereof can be used in court, leading to unpredictable sentencing.
Furthermore, in the cases analysed it was commonplace for laws to be contravened
outright. Socioeconomic forces also affected, or were revealed by, some of the cases.
As well as many opportunities for lenience, the law contains fundamental obstacles
to it, many of which are difficult to abrogate in an ‘Islamic Republic’ because they
originate from authoritative Shi‘i texts. Some jurists suggest ways to overcome even
these, one being Khomeini’s doctrine whereby state interests can override Islamic
orthodoxy to protect the Muslim community and hence Islam itself.
The project serves as a ‘handbook’ of codified Iranian hadd law in light of its
underlying Shi‘i concepts as understood by Iranian legal specialists. Through a
systematic analysis of hadd cases, it shows how these ideas are applied in practice,
and could also have practical applicability in the field of human rights.