The Theory of Gradation in the Punishment of the Muharib: A Novel Reading from the Perspective of Imam Khomeini

محمدیان, علی

doi:10.22034/matin.2026.549550.2391

The Theory of Gradation in the Punishment of the Muharib: A Novel Reading from the Perspective of Imam Khomeini "A Proposal for the Amendment of Article 283 of the Islamic Penal Code Enacted in 2013"

Articles in Press

Document Type : Original Article

Author

علی محمدیان

Associate Professor, Department of Jurisprudence and Islamic Law, Bozorgmehr University of Qaenat, Qaen, Iran.

10.22034/matin.2026.549550.2391

Abstract

The punishment for muhārabah (waging war against God), as one of the Islamic hudud, is stipulated in Article 282 of the Islamic Penal Code (IPC) in four forms: execution, crucifixion, cross-amputation of limbs, and exile. According to Article 283, the choice of any one of these is left to the discretion of the judge. This article aims to explain and evaluate the jurisprudential foundations of the aforementioned legal article by conducting a comparative analysis of the two existing theories in Imami jurisprudence: the theory of 'absolute judicial discretion' (takhyr) and the theory of 'gradation based on proportionality' (tartib). Despite the explicit provision in the IPC of 2013 granting the judge broad discretion in selecting one of the four punishments, this study, using an analytical-inferential method and relying on Imami jurisprudential sources, critiques the challenges arising from an extensive interpretation of Verse 33 of Surah Al-Ma'idah. By adopting the perspective of Imam Khomeini in Tahrir al-Wasilah, it presents the alternative theory of 'gradation' as a reasonable and logical proposal. According to this theory, applying any of the mentioned punishments is contingent upon their qualitative and quantitative proportionality with the type and severity of the muhārib's criminal conduct.

Keywords

Muhārabah

Theory of Gradation (Tartib)

Theory of Discretion (Takhyir)

Imam Khomeini

Islamic Penal Code

Subjects