520 |
|
|
|b This research tackles the elements of penalty of slander in Islamic jurisprudence and the substantive law by explaining the general foundation of the penalty of slander, represented by showing the definition of slander and determining the interest protected by this penalty and also by explaining how to prove the slander and its punishment. The supposed element in the penalty of slander is represented in each of the following: the committer of the slander under the conditions of being adult and sane, regardless of the state of the committer of the slander of being free. Muslim, or chaste. The penalty of slander relates even to the slave, the disbeliever, and the one without chastity. The supposed element in the one accused of adultery is represented under the conditions of being a free Muslim, innocent of committing adultery, whereas the substantive law does not require conditions for the one accused of adultery, as the substantive law generalizes the conditions, requiring only one condition of the person accused of adultery for that penalty to be designated. The physical component of the slander is expressed by demonstrating the attribution and the words used in the slander. Although the Islamic Jurisprudence did not explain the element of attribution, we have figured out the implicit necessity of having it through what the Islamic jurisprudence has discussed from the elements of the physical component, especially the words for which the penalty must be fulfilled. These words play a vital role in showing that the committer of the slander had attributed the incident of fornication or sodomy to the accused person, whether these words came in the shape of a metaphor or in a direct way. In the multiplicity of the physical component, the Hanafis. Malikis and Shaafais imposed a single penalty on the committer of slander. The Hanbalis differed, as they had two views. The first one requires a single penalty, whereas the second one requires a penalty for each committal of slander. Concerning the descriptions of the slander, i.e. what is being suspended under a condition or had been suspended for a while, the Hanafis and the Hanbalis do not abide by them unlike the Malikis and Shaafais. This last view agrees with the substantive law. The Hanafis unified the rule about the person who shares in transmitting the slander and the person who commits it. Unlike the Hanafis. Who distinguished between the person who transmits the slander as news; he will not be penalized, and as for the person who transmits the slander to cause strife, he will be like the committer of slander himself, so he will be penalized. The substantive law is the opposite regarding this case as it punishes on the slander from any source without discrimination. Regarding the condition of publicity. Shafais require publicity to affirm the penalty, in contrast to the Hanafis; that is. The Shaafais agree with the substantive law, which requires publicity in the physical component.
|