Comparative Criminal Jurisprudence

Comparative Criminal Jurisprudence

Comparative Analysis of the Concept of Ihsan of Spouses and Its Jurisprudential Effects from the Perspective of the Five Islamic Schools with a Focus on the Islamic Penal Code of 1392

Document Type : Original Article

Authors
1 PhD in Criminal Law and Criminology, Farabi Campus, Qom, Iran
2 Master of Criminal Law and Criminology, University of Judicial Sciences and Administrative Services, Tehran, Iran
10.22034/jccj.2026.534356.1737
Abstract
This study conducts a comparative analysis of the conditions for the establishment and termination of ihsan (marital chastity) of spouses from the perspective of the five Islamic schools of jurisprudence (Imamiyyah, Hanafi, Maliki, Shafi’i, Hanbali) and the Islamic Penal Code of 1392 (2013). The objective is to examine the conditions of ihsan, identify the commonalities and differences among the schools, and elucidate its jurisprudential effects with reference to legal and religious evidence. The main research question is: What are the criteria for the establishment and termination of ihsan in Islamic schools, and how do these differences impact the application of hadd punishments? Employing a descriptive-analytical method with a comparative approach, this study analyzes the concept of ihsan, its conditions of establishment (such as maturity, sanity, valid marriage, consummation, accessibility, and freedom), and the causes of its termination (such as divorce, travel, imprisonment, and apostasy). The findings indicate that all schools agree on the application of the hadd punishment of stoning for a muhsan (chaste married person), but significant differences exist in the conditions of ihsan. For instance, Imamiyyah limits ihsan to permanent marriage, while Sunni schools, due to their rejection of temporary marriage, consider only permanent marriage valid. Additionally, Hanafis, unlike other schools, do not require sanity as a condition for ihsan. The Islamic Penal Code of 1392, influenced by Imamiyyah jurisprudence, defines accessibility (tamkin) strictly for men but more broadly for women. These differences, rooted in jurisprudential methodologies and interpretations of religious texts, affect the nature and severity of hadd punishments. The results of this study can contribute to the enrichment of comparative Islamic jurisprudence and the reform of Islamic penal laws.
Keywords


Articles in Press, Accepted Manuscript
Available Online from 11 August 2026

  • Receive Date 13 July 2025
  • Revise Date 12 May 2026
  • Accept Date 11 August 2026
  • Publish Date 11 August 2026