Comparative Criminal Jurisprudence

Comparative Criminal Jurisprudence

The Jurisprudential and Legal Legitimacy of Guardianship in Qisas in the Jurisprudence of Islamic Schools and Iranian Law

Document Type : Original Article

Authors
1 Associate Professor, Department of Fiqh and Fundamentals of Law, Razavi University of Islamic Sciences, Mashhad, Iran. (Corresponding Author)
2 Assistant Professor, Department of Fiqh and Fundamentals of Law, Razavi University of Islamic Sciences, Mashhad, Iran.
3 M.A, Department of Fiqh and Fundamentals of Law, Razavi University of Islamic Sciences, Mashhad, Iran.
10.22034/jccj.2025.467160.1600
Abstract
“Suretyship in property matters is a unanimous and agreed-upon subject whose validity and legitimacy have been confirmed in the jurisprudence of Islamic schools and Iranian law. However, suretyship in criminal matters is a controversial and debated issue. The present study, using a library-based method and a descriptive–analytical approach, investigates the legitimacy of ‘suretyship in Qisas,’ meaning the possibility of employing the institution of suretyship in the case of an accused or convicted person subject to Qisas, from the perspective of the jurisprudence of Islamic schools. Research findings indicate that ‘suretyship in Qisas,’ particularly according to Imamiyyah jurisprudence, is valid and legitimate, and Qisas is not subject to the rules that prevent the application of suretyship in Hudud (such as “No suretyship in Hudud”). Accordingly, it appears that the guardian of the victim’s blood right (wali al-dam) in Qisas can, in return for his right, accept suretyship. Iranian law is silent on the permissibility or non-permissibility of suretyship in Qisas, and this issue has not been extensively discussed in legal literature. Therefore, based on Article 167 of the Constitution, which obliges judicial authorities to refer to the fatwas of jurists in cases where the law is silent, it can be said that Iranian law also considers such suretyship legitimate. In summary, suretyship in Qisas, from both jurisprudential and legal perspectives, is valid and legitimate.
Keywords

Volume 5, Issue 3
Summer 2025
Pages 1-17

  • Receive Date 05 January 2025
  • Revise Date 11 March 2025
  • Accept Date 19 April 2025
  • Publish Date 23 September 2025