واقعية النص الجنائي من منظور قانوني وشرعي

Abstract

The realism topic overgrows a big importance for its link to the doctrinal and practical texts side, where it poses a problematic tied to extent of the penal texts, effectiveness in application and the importance of understanding the reality when setting the legitimate or the legal provision in relation to the updates, the penal text nature differs and distinguishes between the legal rules and legitimate provisions including the assignment and the penalty sides according to its source either is the divine or the human will, each has its own characteristics and features which impose a set of obligatory restrains to be considered and committed when downloading the verdict and in the drafting of the text like: the necessity and the appropriateness, considering the interest and lifting the damage, the justice and the equality; perhaps more affirming and specific of these is the divine and legitimate restrain that gives the penal texts a true realistic feature. And we deduced that the penal text in the Islamic law is most realistic than in the common texts; where it gathers between flexibility and constancy, balances between the public and private interest, characterized by the punishment diversity and its appropriateness with the crime and its balanced theories of the reality those different from the legal view stood on the sensation and experiment, considered materialism and neglected the hiddenites.