Abstract: Among the conditions discussed in jurisprudential and legal sources regarding the nature of theft or its punishment is the requirement of secrecy, known as khufyah. The role assigned to khufyah in these sources varies: in some, it is considered a requisite for the very occurrence of theft, that is, without it, theft does not take place at all, while in others, it pertains only to a specific form of theft, namely the one punishable by ḥadd. Accordingly, the primary question is whether khufyah is a condition for the occurrence of theft in general, or only for the theft subject to ḥadd punishment. Furthermore, for the material element of theft subject to ḥadd to be realized, in addition to the act of taking, that is, the unlawful appropriation, it must also involve the violation of a secure enclosure. Thus another question arises: ‘To which element does the condition khufyah relate? Must the condition of secrecy apply to both components of the material element of theft (the act of taking and the violation of security), or only to one of them, and if so, which one?’ This study investigates both the role and the object of the qualifying khufyah. The data for this research have been collected through a library-based method, using lexicographical sources, both Shīʿī and Sunnī jurisprudential and narrative texts, as well as opinions of legal scholars, examined through a descriptive-analytical approach. The findings indicate, first, that khufyah is a constitutive condition for the commission of the crime of theft; without it, theft cannot be said to have occurred. Second, the object of this condition is solely the act of taking rather than the violation of the secure enclosure. These conclusions, therefore, stand in contrast to both the approach and the explicit text of the current Islamic Penal Code of Iran. [ABSTRACT FROM AUTHOR]
Processing Request
No Comments.