PRINCIPLE OF

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ISSN: 2588-4824

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Journal: MAQALAT WA BARRASIHA Year:2003 | Volume:36 | Issue:73 (3) Page(s): 41-56

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Title

PRINCIPLE OF "DAR' " AND COMMENTARY OF PENAL TEXTS

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Abstract

One of the principles which governs penal jurisprudence is the "dar" (literally: pushing aside). According to it, an order cannot be issued to punish someone in case of doubt, whether this doubt concerns the prohibition of the act itself, the reality of the act, the responsibility of the defendant for this act, or the knowledge that the defendant had of this prohibition when he committed his act. The principle of "dar'" has its origins in sayings of the Islamic Tradition. The attribution of the sayings to The Legislator Šāre' is not proved; nonetheless, the multiplicity of the ways it has been transmitted, the unity of the sources relating to it and its relation with the objectives of The Legislator explain why this principle has been accepted by a vast number of jurists (faqīh), who used it in their commentaries and to enforce the penal texts. As long as the doubt concerns the existence of a text, or the meaning of a text or its relation with the case the judge deals with, it remains only a matter of commentary. It favors the defendant for the punition he should get. In fact, the principle of "dar'" resembles very much to the principle found in traditional penal systems, that says that the defendant is to be given the benefit of the doubt when it comes to an ambiguous text; but, despite the success of this principle to protect the defendant, the "dar'" weakens the application of the sentence decided by the judge and therefore is open to criticism.

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APA: Copy

OMIDI, J.. (2003). PRINCIPLE OF "DAR' " AND COMMENTARY OF PENAL TEXTS. MAQALAT WA BARRASIHA, 36(73 (3)), 41-56. SID. https://sid.ir/paper/13705/en

Vancouver: Copy

OMIDI J.. PRINCIPLE OF "DAR' " AND COMMENTARY OF PENAL TEXTS. MAQALAT WA BARRASIHA[Internet]. 2003;36(73 (3)):41-56. Available from: https://sid.ir/paper/13705/en

IEEE: Copy

J. OMIDI, “PRINCIPLE OF "DAR' " AND COMMENTARY OF PENAL TEXTS,” MAQALAT WA BARRASIHA, vol. 36, no. 73 (3), pp. 41–56, 2003, [Online]. Available: https://sid.ir/paper/13705/en

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