İSLÂM HUKUKUNDA SUÇ-CEZA DENGESİNİN ADALETLE İLİŞKİSİ
Öz
Uygulama noktasında farklı algı ve yorumlar olsa da adalet kavramı, başlangıçtan günümüze her din ve düşünce sisteminin oturduğu ana zemini teşkil etmiştir ya
da bu iddia hemen hepsinin temel vazgeçilmezi olmuştur. Adalet, toplumu teşkil eden bireylerden tutun da milletler arası ilişkilere varıncaya dek olmazsa olmazlardandır. Bütün ilişkilerin hukuksal ve ahlakî bağlamda meşruiyet kazandığı zemin, şüphesiz adalettir. Bireysel ve toplumsal ölçekte adaletin gözetilmemesi durumunda, ülkenin sosyal ve hukuksal düzeninde kargaşa yaşanacağı açıktır. Bireylerin adalete güvenleri zedelendiğinde kolektif adalet yerine, kişisel öç ve intikam almalar gündeme gelir ki bunun da toplum barışını derinden yaralayacağı açıktır. Fert ve toplum düzenini bozan ve bir fesat unsuru olduğu kabul edilen suçların, özel ve genel maslahatın korunması ve devamlılığı için birtakım yaptırımlara tabi tutulması zaruri bir durum olarak karşımıza çıkmaktadır. Tarihi süreçte siyasî, sosyal ve çeşitli düşünce akımlarının etkisiyle şekillenen ve uygulanan cezalar adalet ve hakkaniyet açısından sorgulanmıştır. Bunda cezaların fail ve mağdurlar açısından çeşitli kısıtlama ve
mahrumiyetlere yol açan niteliğinin payı büyüktür.
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BALANCE OF JUSTICE AND PUNISHMNET IN ISLAMIC LAW
Öz
Although there are different perceptions and interpretations with respects to application, the concept of justice has been the mainstay of almost every religion and thought system from the beginning to the present day; this claim is one of the most common values that has been looked upon as the most essential and indispensable element for most of them. Justice is a sine qua non in every facet of life, from an individual level to international relations. The ground on which all relations are legitimized in legal and moral context is undoubtedly justice. It is clear that there will be turmoil in the social and legal order of a country if justice is not observed on an individual and social scale. Instead of collective justice, personal vengeance and retaliation surface when justice is lost to functionality and when individuals’ trust in justice is harmed, making it clear that this deeply damages community peace and cohesion. In historical times, in almost every society, it has been crucial that crimes which disrupt individual and social order and crimes that are accepted as an element of mischief, are subject to sanctions for the protection and continuity of private and general charge. However, it is essential that these sanctions do not constitute a violation of the law and comply with the stated objectives under any circumstances. In historical processes, the punishments that have been shaped and applied by the influence of political, social and various currents of thought have always been questioned in terms of justice and equity. Undoubtedly, the quality of the penalties leading to various restrictions and deprivations in terms of perpetrators and victims has a large part to play.
Islam emphasized at every opportunity that the guilty should not be punished other than the punishment he deserves while executing the punishment, and that the person should not be tortured even if the response is according to the retaliation principle. It is observed in various events in the history of Islam that it is not permissible to respond in the same way even if the persecutor is an enemy.
One of the reasons for its existence is that Islam, which has turned towards the aim of establishing justice among people, expressed the observance of justice at different stages and practices in almost every stage of the punishment applied against religious crimes. If some individual exceptional practices are left aside in the historical process, care has always been taken to protect the existence of the principle of justice in the stages of proof, trial and punishment of the criminal.
The purpose of the punishment is to ensure justice. However, this also requires that the penalty for the crime committed be sufficient to provide justice in terms of crime-punishment balance.
In Islam, the crime and punishment balance is a requirement of justice. “The Kısas (retaliation) and the Hadd punishments” determined in the Qur’an and the Sunnah are the only option penalties that are not given the right of discretion to the judge in terms of reduction or bonding to another penalty. In case these punishments are unfairly given, it will cause injuries that cannot be compensated, and the related judiciary and the doctrine of law developed in parallel with this, showed the diligence in favor of the criminal in the establishment of the crimes, provided them, and adopted the justice in the punishment as a general principle.
In “Kısas Penalties” The proportion and equivalence between crime and punishment are seen concretely. Therefore, it can be said that the type of punishment in which justice emerged in the most pronounced manner is “Kısas Penalties”. Because the punishment executed on the offender has to be similar / equal and equivalent to the offender’s harm and the action he has committed.
This is also the case in the Ta‘zîr (“the bastinado”) penalties. Because these penalties differ according to the crime committed. The competent authority can not engage in arbitrary practices, by the way of ignoring the principle of justice in the punishment to be applied and the general principles of crime-punishment.
In “hadd penalties”, Although there is no direct proportion between the punishment and the harm suffered by the victim, it will be seen that there is a balance of crime and punishment here, too. The equivalence between the crimes and penalties requiring limits is not sought in material and tangible amounts, but between the injustice caused by the crime and the punishment envisaged.
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