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Death Penalty

Can Hodud Punishments Be Carried Out in Our Time? Sadeq Larijani’s Polite Response to His Critics

Jalal Ya’qubi
Rooz Online /Translation by ABF
December 24, 2013
Newspaper article

In early December, after the UN General Assembly’s Third Committee’s initial resolution on human rights violations in Iran, Ayatollah Sadeq Larijani, Head of the Judiciary Branch stated: “One of the root causes of the claims made about the human rights issue is the fundamental difference between the West and the Islamic world on the matter. For instance, they have declared the implementation of Qesas null and void in some of the recent resolution’s provisions, whereas Qesas is the Koran’s express decree, and to want us to stop implementing a Koranic decree just because some resolution is passed is an unwarranted expectation.” Further adding that “there is a lack of knowledge about the fundamentals of Fiqh (Islamic jurisprudence) in certain provisions of the UN General Assembly’s Third Committee’s resolution”, he stated: “To say that the death penalty is carried out based on imprecisely defined crimes such as Moharebeh, which they have translated as enmity with God, indicates a lack of knowledge on the part of the drafters of the resolution.”

A few days later, Sadeq Larijani stated: “As we have declared before, many of the issues raised in claims of human rights violations, including opposition to the death penalty, is in fact opposition to Islam’s decree, because Qesas is an express decree of the Holy Koran.”

He said that “starting pseudo-intellectual movements” and “promoting relativism and indifference to religious dictates” was a means of cultural invasion and added: “When you remind these pseudo-intellectuals of Islamic principles, they say ‘which Islam are you talking about, because there are different interpretations of Islam’, whereas the real Islam is nothing but what the late Imam called ‘pure Mohammedan Islam’, that is, the Islam that contains [the elements of] strong faith, unity, glory, jihad, and defense, the true experts of which are seminary specialists and religious authorities who are the sources of imitation [by the rest of the Moslem population]. [And there are of course] firm and convincing responses to relativism in the realm of understanding and epistemology, and the subject has been discussed and analyzed [at great length] in its proper place.”

Larijani’s statements in defense of Qesas as well as the death penalty drew reactions from Iran’s intellectual circles. Dr. Mohammad Mojtahed Shabestari, who is one of the most well-known contemporary religious intellectualists, alluded to Larijani’s statements in an article entitled “The Chief Judge’s Great Fallacious Reasoning!” and wrote: “With the bully pulpit the Chief Judge has at his disposal, once in a while he flies off the handle and attacks intellectualist theologians who are proponents of human rights.”

Shabestari then addressed the Head of the Judiciary’s fallacious reasoning: “They say since the order of Qesas (capital punishment) exists in the Koran, then contemporary Moslems are obligated to carry out the death penalty without question. This reasoning is fallacious because you cannot deduce an obligation to carry out a certain decree in all eras just because that decree exists in the Koran. You cannot extract a “must (obligation)” from that “exists”. This very basic premise is the starting point of the theoretical differences between Iran’s religious intellectualists with the likes of the Chief Judge regarding Islamic decrees.” Emphasizing the point that “you cannot extract a rule from the Qesas verse if you don’t interpret it” Shabestari had asked: “The religious intellectualists’ very serious question from Foqaha (“Islamic scholars”) is this: why should they set aside their opinions and their methodological means of understanding and interpretation, and follow the views of the religious scholars?”

He had added: “Had Mr. Larijani stated ‘we have not allowed and we will not allow a new interpretation of Islam to take shape’ he would have said something that was one hundred percent true. But he misleads and says that Islam does not have different interpretations!”

At the same time, Kianoosh Razaghi wrote an article on the Rooz website entitled “Abolition of the Death Penalty is Opposition to the Koran” and emphasized: “Based on what we have understood for Imamiah criminal law, not only is the death penalty not concomitant with [and a necessity of] Islam itself, but suspension of its implementation during the Absence of the Innocent Imam is among the popular views held by Imamiah legal scholars.” He had noted: “Qesas is not the only instance of the implementation of the death penalty in Iran’s penal system… Therefore, criticizing the death penalty is not necessarily the equivalent of criticizing Qesas. One should not, therefore, fall prey to this fallacious reasoning and equate any opposition to the death penalty with opposition to Qesas.” Dividing capital punishment into three categories of Qesas, Hodud, and Ta’zir in Iranian laws, Razaghi had written: “But one must know that in Imamiah Fiqh, the opposite actually holds true. Most leading Islamic scholars, precursors or the more recent ones, hold that during the Absence of the Innocent Imam, implementation of hodud is not religiously permitted, and [that they must be] replaced with Ta’zir punishments. Ta’zir must, by definition, be less harsh than Hadd; that is, the death penalty is undoubtedly not among Ta’zir punishments and is definitely suspended during the Absence of the Innocent Imam. These scholars believe that when the Innocent Imam is actually present among us, he will know how to rule, but during the Absence we are not authorized to resort to Hodud. Ayatollah Vahid Khorasani and Ayatollah Mohaqeq Damad, who, incidentally, are both related to the Head of the Judiciary Branch by marriage, are among those scholars.”

A few days later, Ayatollah Larijani responded to the critics in a speech. Criticizing the way his words had been published, the Head of the Judiciary had said: “Unfortunately, the subject matter was published in a distorted fashion in certain media, especially western media that are always looking for excuses and posit clear and well-reasoned words [any way they want]. Unfortunately some domestic media also quoted me as saying opposing the death penalty is the equivalent of opposing Islam; I was talking about Qesas and Hodud, and executions in instances of Efsad fel-Arz.”

Larijani’s gripe about the inaccurate reflection of his speech was done when it was no less a source than “the Judiciary Branch’s Public Relations General Administration” that had quoted him, and even Fars News Agency, affiliated with the Revolutionary Guards Corps had chosen the title to his speech thusly: “Opposing the Death Penalty is Opposing the Commands of Islam”.

Alluding to “pseudo-Fiqhi discussions put forth by ‘certain individuals who pretend to have knowledge’ acting as proxies for others”, Larijani had then said: “Some of the critics who have questioned implementation of those Hodud punishments that result in the taking of life, and have claimed that the majority of religious legal scholars do not consider implementation of Hodud as permissible during the time of the Absence, have even mentioned Ayatollah Vahid Khorasani’s name and, saying that he is related to me by marriage, have stated that he does not believe in implementation of Hodud during the Absence, which is utterly false because he has [already] given his opinion in [the book] “Takmaleh Menhaj”, problem 177, the main text of which was written by the late Ayatollah Khoyi, and states Ayatollah Khoyi’s opinion, which is: ‘The ruler who has all the requisite religious conditions, is permitted to implement Hodud punishments until Appearance [of the Innocent Imam]’; he does not even believe in the principle of caution [where this is concerned]; it is therefore obvious that [Ayatollah Vahid Khorasani’s] fatwa is the same [as just stated].”

Denying the truth of the statement “the majority of religious legal scholars do not consider implementation of Hodud as permissible during the time of the Absence”, he then proceeded to cite passages from Ayatollah Abolqassem Khoyi’s [book] “Mabani Takmaleh Menhaj”, which incidentally proved that there was indeed disagreement regarding implementation of Hodud. He quoted Ayatollah Khoyi as having said: “…It is clear that suspension is different than a fatwa [declaring] prohibition, and even that does not constitute a fatwa to be definitive.”

He had added: “There are of course more recent religious legal scholars who believe in suspension, like the late Mirza-ye Qomi (based on what has been recounted), and the late Ayatollah Khansari, who, in certain passages of [the book] ‘Jame’ol Madarek’ disagrees with the arguments of those who believe Hodud to be permissible [during the Absence], but there is no precision as to whether a fatwa prescribing prohibition is issued and only states: ‘[Arabic text].’ But as we said, first, suspension is different than issuing a fatwa prohibiting implementation of Hodud during the Absence, and secondly, the [limited] number of those who prescribe suspension, does not make a definitive rule.” Of course, Larijani did not explain what the difference is between the necessity for suspension of implementation of Hodud and prohibition thereof.

He had further said: “To the gentlemen who propose the suspension of Hodud during the Absence: Assume that the Imam of Time appeared right now; would he not implement Hodud? One must also ask the question: Which of the scholars that these people claim support suspension of Hodud during the Absence, has said that implementing Hodud is inhuman?”

Larijani had then addressed Dr. Mohammad Mojtahed Shabestari’ statements and said: “One of those people who, unfortunately, has not acquired theological knowledge, nor has he acquired any other kind of scientific knowledge, claims that [I] have mixed up the rule in the Koran with the rule that must be implemented now. I must tell him, you have not even learned enough to understand that a rule is a rule, and we can’t say if it is to be carried out or not…. Of course, these gentlemen claim that the Koran’s rules are historical. This [seems like] a very simple sentence but it carries a lot of weight: To say that the provisions of the Koran are historical is to say that none of the rules contained in the Koran correspond to [the necessities of] the current era, not just Qesas, but prayer, fasting, pilgrimage, Zakat, and everything else is invalid. The corruption that such beliefs wreak on inherent and unquestionable evidence [of the invalidity of their statements] is evident and proven, but it is strange when they ask why we question their interpretation!”

This lengthy quote of the Head of the Judiciary’s speech was necessary to show his [lack of civility and] manners, as well as the logic of his statements. Sadeq Larijani once wrote a book on the critique of [the collection of articles by religious intellectualist Abdolkarim Sorush] “The Theoretical Constriction and Expansion of Shari’a” [meaning broad and narrow interpretation of religion in line with a particular era] and had said in its introduction: “If one puts together the scattered subject matters that are contained in the articles on constriction and expansion, one will deduce that there is no reason for divine laws and for referring to the Book and the Prophet’s [and his descendants’] Tradition , and that it is all meaningless. We’re not saying that that is what those articles are expressly saying or that they have been written for that purpose, God forbid, but we claim that that is the necessary deduction, even if he is not aware of it himself.” He had said: “If social sciences can determine our needs, and if human scientific knowledge has expropriated all understanding of the Book and the Tradition, then what good are the Book and the Tradition and what purpose do they serve?”

And in order to put forth an example of religious concepts that are beyond the realm of understanding, he had written: “We learned in Ahkam (“Rules”, a subject taught in Islamic seminaries) that going to sleep after Janabat [a state in which semen has been discharged and “Ghosl”, or religiously directed washing, has not been performed] undermines and offends the spirit and can cause other physical side effects; so let us not say that current sciences do not confirm such things; [if they don’t, then] they [modern sciences] should be interpreted in another fashion or be set aside all together.”

Sadeq Larijani’s logic in defending his Fiqhi (“Islamic jurisprudential”) interpretation, citing the secrets to “sleeping without washing after orgasm”, has now been polished with scientific “literature”. In order to remind everyone how oblivious Sadeq Larijani seems to be to what is going on in the realm of Fiqh, it is sufficient to allude to an article written by Ayatollah Seyyed Mostafa Mohaqeq Damad entitled “Hodud in Our Time: Implementation or Suspension?”, published in the summer of 1999 in the Legal Research Journal, in which he wrote: “The subject matter of implementing or suspending Hodud punishments during the Absence of the Innocents is one of the most talked about issues of Imamiah Fiqh. The subject is so controversial that it has divided the Imamiah legal scholars into two opposing camps where they present radically different opinions.”

In the section entitled “Supporters of Suspension and Their Reasons”, Mohaqeq Damad states some of the Imamiah scholars’ opinions regarding the necessity of suspension of the implementation of Hodud during the Absence, and emphasized: “Opponents of implementation of Hodud during the Absence, as was stated, other than precursors such as Ibn Zohreh or Ibn Idris, two seventh and eighth century [Hijri] great scholars, are headed by Mohaqeq and Allameh Helli.”

Citing both theories opposed to implementation of Hodud during the Absence, he then wrote: “The research shows that no scholar has issued any fatwa (religious decree) permitting this. Therefore, there is a very serious problem with the issuance of sentences implementing religious Hodud by most judges in our time.”

Ayatollah Mohaqeq Damad had then cited a Hadith (“Tradition”) ascribed to Imam Ali: “It is stated in this Hadith that [the Imam had said] ‘May no one who himself [may have committed an act which might remotely be] subjected to Hadd, carry out Hadd punishment’, upon which everyone had left. Is the situation in our time better than they were during Imam Ali’s time?”

He had asked: “Now, the main question is, what should be done with violators and perpetrators of crimes that carry Hadd punishments, if Hodud are to be suspended? Should they be left alone and set free?” He had answered: “If suspended, Hadd punishment is replaced by Ta’zir punishment. And it is obvious that, first, Ta’zir punishments change according to time, place, and social circumstances, and secondly, Hadd punishments such as the death penalty, stoning, amputation, and the like are very harsh, but Ta’zir is always less harsh than Hadd punishments.” (Legal Research, Spring and Summer 1999, Numbers 25 and 26).