چکیده:
Most, if not all, studies that have undertaken the analysis of the jurisprudential foundations of preventive crimes have addressed fundamental principles such as 'Sadd al-Dhara'i' (blocking the means), the obligation of the مقدمة واجب (prelude to an obligation), and the prohibition of the مقدمة حرام (prelude to a prohibition), etc., in the legal justification of these crimes. They have overlooked the fact that none of these can be accepted as a general and universal rule in justifying the prohibition of preventive crimes. What is important is examining the ultimate reason for the impermissibility of such crimes and, ultimately, providing a general criterion that can be comprehensive of all instances of these crimes while maintaining their preventive nature; because the lack of standardization in this regard can lead to the infringement of individual rights under the pretext of defending societal rights. The present writing introduces the institution of 'Hasbiya', which is among the matters that the Lawgiver never consents to abandon, as the most justifiable basis for preventive (deterrent) crime. Based on this foundation, the organization of society, the affairs of citizens, and generally the maintenance of order are placed within the framework of 'Amur-e Hasbiya'. Sometimes, this is realized by preventing the causes and preliminaries that provide the ground for committing subsequent crimes and greater corruption, and this is precisely where the core of these crimes lies. Thus, with this foundation, the preventive crime is transformed into a justifiable concept.
خلاصه ماشینی:
Based on this foundation, organizing society and citizens' affairs and, in general, maintaining order, are categorized within the framework of Hisbah matters, and sometimes by preventing the causes and precursors that facilitate the commission of subsequent crimes and greater corruptions Date received: 09/10/1396; Date accepted: 1397/07/12 Master's graduate in Criminal Law and Criminology, Razavi University of Islamic Sciences, via correspondence: are facilitated, they are realized, and this is precisely where the focal point of these crimes is located.
The importance of this discussion becomes clear because since these types of crimes are essentially without a victim, there is a fear that the legislator, under the pretext of protecting societal rights, may resort to multiple criminalizations and each time narrow the scope of individual freedoms and ignore them, especially since most of these behaviors consist of permissible acts; therefore, escaping this challenge requires providing a fair framework through a correct reading of authentic Islamic sources; because certainly, the Holy Legislator is not satisfied with the commission of causes and precursors that lead to crime.
However, from the perspective of Shia legal theorists (Usulists), the incompleteness of those arguments is not a matter of dispute; thus, considering that this reason does not reveal the words of the Infallibles (AS) and the refusal of Shia jurists to accept it as one of the methods of inferential operations in Sharia rulings, and given that the codified laws of the Islamic Republic of Iran are based on Imami jurisprudence, this reason is not acceptable as a foundational basis for preventive crimes.
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