Feasibility of Changing the Punishment for Moharebeh to Ensure the Principle of Acceptability Based on a Reinterpretation of Jurisprudential Foundations

Abstract

Examining the legal capacities or the feasibility of modifying the punishment for Moharebeh and aligning it with the principle of acceptability based on jurisprudential perspectives is the primary objective of the present study. The central question is what obstacles exist in modifying the ruling on Moharebeh to make it compatible with the principle of acceptability, and what mechanisms can be employed to achieve such modification? The findings indicate that the ruling on Moharebeh, due to factors such as the imposition of the death penalty and amputation of limbs, has not yielded desirable outcomes in society or in the international arena. From a jurisprudential perspective, ensuring the principle of acceptability necessitates that in the evidentiary phase, the ruling on Moharebeh should be contingent upon proving war against God, the Holy Prophet (PBUH), and the disruption of public security and tranquility through armed violence, so that establishing its occurrence is not easily feasible. During the adjudication phase, in line with the view of Imam Khomeini (RA), the concept of weapon should not be overly broad, and items such as stones, sticks, and canes should be excluded from the definition of a weapon to prevent any public act involving the use of a weapon from being classified as Moharebeh. In the execution phase, employing the principle of discretion (takhyīr), which allows for mitigated punishments in severe crimes when the weapon used by the offender is a stick, stone, or cane, plays a significant role in enhancing the acceptability of the punishment for Moharebeh. Moreover, substituting punishments such as exile (nafy al-balad) for the death penalty, crucifixion, or amputation—penalties that are currently regarded as notorious and uncommon from a human rights perspective—has a crucial role in ensuring the principle of acceptability based on a jurisprudential outlook. The present study is descriptive-analytical in nature and has been conducted based on library sources.