نوع مقاله : مقاله پژوهشی
عنوان مقاله English
نویسندگان English
The concept of discernment (Tamyīz) in the discourse of jurists and legal scholars has consistently served as the dividing line between two categories of children. However, the question remains: what are the criteria for determining a child’s discernment? Using a descriptive–analytical research method, this study seeks to clarify the criteria of discernment and to determine its precise standard based on jurisprudential findings and cognitive sciences. Factors such as age, being in the stage of Murāhiq (early adolescence), the correct performance of an act, the child’s physical growth, and ultimately the child’s understanding and cognition are among the commonly cited limits and indicators of discernment. Nevertheless, the fundamental criterion of discernment is cognitive in nature. Accordingly, when a child is able to recognize the nature of actions, distinguish benefit from harm, and differentiate between good and bad, he or she has attained the level of understanding and discernment in question. Age and other indicators of discernment thus function merely as presumptive signs of this understanding. This cognitive capacity distinguishes the child from those in earlier developmental stages; hence, according to narrations, such a child is deemed ready to learn what is lawful and unlawful and is capable of complying with certain religious rulings. Article 91 of the Islamic Penal Code identifies three criteria: understanding the nature of actions, discerning moral good and evil, and comprehending the social consequences of one’s conduct. Based on these criteria, non-discerning minors, due to their lack of understanding of the nature of actions, fall outside the category of discernment. Discerning minors, however, in addition to understanding the nature of actions, also perceive moral good and evil; therefore, “their acts of worship are legally valid.” Yet, because they lack an understanding of the social consequences of their actions, their transactions—except for gratuitous acquisition—are void and without legal effect under Articles 1212 and 1215 of the Civil Code. Similarly, in criminal matters, and for the same reason, children are exempt from criminal responsibility pursuant to Article 146 and the substance of Article 91 of the Islamic Penal Code.
کلیدواژهها English
