The Role of the Exercise of a Right in the Crime of Defamation under Islamic Jurisprudence and the Legal Systems of Iraq and Iran

Abstract

The crime of defamation (Qadhf) is an offense that infringes upon the reputation and dignity of individuals. It has garnered significant attention in Islamic jurisprudence and criminal law due to its gravity and direct impact on personal lives. However, this protection is not absolute, as a statement or action may occur within the framework of exercising a legally or religiously sanctioned right—such as the right to file a complaint, present a defense, engage in litigation, or report crimes. This raises the question regarding the effect of the “exercise of a right” in negating or mitigating criminal liability for defamation, as well as the regulations governing this practice to prevent it from becoming a pretext for harming others.

This study examines the role of the “exercise of a right” in the context of defamation within Islamic jurisprudence and the legal systems of Iraq and Iran. It explores how the exercise of a right acts as a factor influencing the establishment or scope of criminal liability, particularly when the action takes place within the parameters of a legitimate right. The study aims to delineate the jurisprudential and legal basis for the exercise of a right and its effect on defamation, while conducting a comparative analysis between Islamic jurisprudence and Imami (Shia) jurisprudence on one hand, and the Iraqi and Iranian legislative frameworks on the other, to uncover their points of convergence and divergence.

The study concludes that both Islamic and Imami jurisprudence categorize defamation as a prohibited act subject to accountability when its religious conditions are met. However, they also consider the intent of the perpetrator and the circumstances surrounding the statement—such as the exercise of the right to testify, file a complaint, or seek redress—implying that not every imputation affecting another’s honor necessarily constitutes the Hadd (fixed penalty) for defamation if the necessary religious criteria are absent. Iraqi legislation aligns with this approach by protecting certain instances of the exercise of a right, provided the action remains within legally defined limits. Conversely, the Iranian legal system is more explicitly linked to Sharia principles and Imami jurisprudence, treating defamation as a Hadd crime regulated under the Islamic Penal Code.

The comparison reveals a consensus across all four frameworks on the necessity of distinguishing between unlawful assaults on human honor and dignity and statements made in the exercise of a legitimate right, as well as avoiding the broad criminalization of acts that lack the necessary intent or constituent elements of the crime. The divergence appears primarily in the legal and religious foundation of the “exercise of a right,” its scope of application, and its consequences. Islamic and Imami jurisprudence rely on religious texts and jurisprudential principles; Iraqi law relies primarily on general and special legal statutes; while Iranian law synthesizes positive legislation with the Sharia-based origins of Hadd crimes, giving it a unique regulatory approach to defamation. The study employs a descriptive-analytical and comparative methodology, analyzing and contrasting jurisprudential and legal texts to determine the effectiveness of the “exercise of a right” in negating criminal liability for defamation.