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Fraser2013.Pdf (3.034Mb) This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: • This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. • A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. • This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. • The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. • When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. Life and Limb Irreversible hadd penalties in Iranian criminal courts and opportunities to avoid them Antonia Fraser Fujinaga Doctor of Philosophy The University of Edinburgh 2013 Declaration I, Antonia Fraser Fujinaga, declare that this thesis is exclusively my own work and based entirely on my own research, and has never been submitted for any other degree or professional qualification. Antonia Fraser Fujinaga. April 2013. i ii 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. iii iv Acknowledgements. The fees for this project were paid by an Arts Faculty Award from the University of Edinburgh, for which I would like to express my gratitude. I am also grateful to the following individuals from the University of Edinburgh: my supervisor, Andrew J. Newman, for his patience and understanding; Kate Marshall; Alex Thomson; Linda Grieve; Elizabeth Goodwin-Andersson; Liam Forbes; Louise Wilson; Andrew Marsham; Anthony Gorman; Eberhard Sauer; Catherine Keltie; Janet Grant; and Cait Webb. Additionally I would like to thank Ziba Mir-Hosseini, Lindsay Farmer, and Ali Ansari for helpful advice. Then there are those who helped me to obtain primary materials, mostly inside Iran but sometimes by linking me to individuals in Iran. Though I am deeply indebted to them because my research would have been impossible without their assistance, I might create problems for them or their families by revealing their identities. I shall thank them individually, letting them know how crucial their help was and how much I admire them. Finally I would like to extend personal thanks to my parents; Niccolò Stiozzi Ridolfi; Monika Pohle Fraser; Saeko Yazaki; Rafiq Mahmood; Stephanie Solomon; Christine Haunz; my flatmates and other friends in Iran and Edinburgh; Marie Louise Wammen; Rebecca Stengel; and my husband’s parents and sister. They all supported me in various ways as I struggled with my research. As for my husband, Koh Fujinaga, he made innumerable photocopies, ordered countless interlibrary loans, never became angry, and never complained about frequent post-midnight dinners when I had to ‘finish a thought’. Without his affection, I would not have had the stamina to keep hacking away at this project when it seemed to be going nowhere. v vi Table of Contents. 1. Introduction. 1. 1. General nature of the project. 2. 2. Organisation. 3. 3. Sources and restrictions. 5. 4. The role of this project with respect to existing studies. 6. 5. Background information. 11. 5.1. Shi‘i law and basic terminology. 11. 5.2. State structures. 15. 5.3. Velayat-e faqih. 16. 5.4. The adoption of Islamised laws. 17. 5.5. Democracy and authoritarianism. 19. 5.6. A note on juristic texts. 25. Part I: Background. 27. 2. Hudud in the law. 29. 1. Shi‘i law and codified law. 29. 2. No crime without law. 30. 3. Judges and lawyers. 30. 4. Law codes, general regulations and appeals. 31. 4.1. The fragmentary nature of the penal code. 35. 5. Hudud in codified and Shi‘i law. 36. 5.1. Hadd crimes and their punishments. 37. Table: some aspects of hudud in the penal code. 39. 5.2. Repetition of hadd crimes and execution. 41. 5.3. Execution methods and protocol. 42. 6. Proof. 46. 6.1. Confession. 47. 6.2. Revocation of confession. 50. 6.3. Testimony. 50. vii 6.4. ‘Elm-e qazi: the judge’s ‘knowledge’. 54. 6.5. Evidence other than confession, testimony or ‘elm. 59. 7. Criminal responsibility. 59. 7.1. Bulugh. 60. 7.2. Doubt and ignorance; ignorance as a defence. 62. 7.3. Ikrah (coercion) and ezterar (distress). 64. 8. Haqq Allah and haqq al-nas. 67. 9. Suqut, repentance and pardon. 69. 9.1. Tabdil (commutation) and takhfif (attenuation). 75. Concluding remarks. 76. 3. Principles. 77. 1. Basic principles. 77. 2. The general (‘amm) and the particular (khass). 80. 3. Lenience. 81. 3.1. Against lenience. 82. 4. No investigation of crimes ‘against chastity’. 83. 5. The qa‘edeye darr’ or ‘axiom of removal’. 83. 6. Maslahat and other forces for accommodation. 85. 6.1. Qa‘edeye molazeme: the reasonability of commandments. 85. 6.2. Maslahat. 86. 6.3. The axiom against causing hatred of the faith. 89. 6.4. Hudud were intended to be applied sparingly if ever. 91. 6.5. Islam is compatible with human rights. 92. Concluding remarks. 95. 4. Crime-specific regulations. 97. 1. Extent of penetration and testimony to it. 98. 2. Mahduroldamm status. 99. 3. Zena. 100. 3.1. The punishment of children born through zena. 102. 3.2. Incest and rape. 103. viii 3.3. Rape and murder of underage girls. 105. 3.4. Ehsan. 109. 3.5. Marriage, coercion, and criminal responsibility. 116. 3.6. Pregnancy cannot prove zena. 118. 3.7. Stoning for adultery. 118. 4. Sodomy. 121. 4.1. Alternative punishments for sodomy. 123. 5. Theft. 124. 6. Moharebeh va efsad fi’l-’ard. 126. Concluding remarks. 129. Part II: Case studies. 131. 5. Theft cases. 133. Case 1: amputation sentence carried out. 133. Case 2: the dangers of collaborating with the authorities. 136. Case 3: who removed the loot? 141. Case 4: collaboration in theft prevents the hadd. 146. Case 5: patterns in written files also emerge in court. 147. Published rulings. 149. Concluding remarks. 150. 6. Sodomy cases. 155. Case 1: acquittal is replaced by a death sentence. 155. Case 2: blurred boundaries between haqq Allah and haqq al-nas. 158. Case 3: murder victim is claimed mahduroldamm through lavvat. 160. Case 4: execution of a minor despite invalid ‘elm and stay of execution. 162. Published rulings. 168. 1. Incidence of death sentences 169. 2. Rape versus consensual sodomy. 169. 3. Proof. 170. 4. Use of uncodified Shi‘i law. 171. ix 5. Rape claimants prosecuted. 172. 6. Haqq Allah. 172. 7. Double jeopardy and authorities’ involvement. 172. 8. Repentance. 173. Concluding remarks. 173. 7. Published zena rulings. 179. 1. Type of penalty: incidence and appeal result. 179. 2. Appeals and authorities’ involvement. 180. 3. Subjectivity and appeal bias. 181. 4. When are lawyers introduced? 182. 5. Evidence used. 183. 6. Ehsan. 185. 7. Rape, age and male bias. 186. 8. Use of uncodified Shi‘i law. 190. 9. Lenience in use. 190. Concluding remarks. 192. 8. Fornication cases. 195. Case 1: execution despite evidence of psychological disorders. 195. Case 2: death sentence for incest with rape claim and enkar. 202. Concluding remarks. 209. 9. Adultery cases. 213. Case 1: stoning sentence despite belief in valid marriage. 214. Case 2: interpretability of coercion in adultery. 218. Case 3: confession motivated by promises of lenience. 223. Case 4: commutation of stoning to hanging because of maslahat. 228. Case 5: hanging for rape takes precedence over stoning for adultery.
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