RE-EVALUATON OF COMPETENCE TO TRIAL WITHIN THE FRAME OF TERMS BULUGH AND RUSHD: CRIMINAL MAJORITY

Abstract

In this article, the discovery in terms of sexual maturity (bulugh), which is considered necessary for liability in Islamic law, and the concept of majority (rushd), which are mostly in the field of financial law, are examined and considerations regarding the relationship between them are included. As a result of the doctrine review regarding these two concepts and related provisions, it is seen that the views on the subject are not closed to interpretation and are suitable for re-evaluation with current data. Human behavior has spread over a wide field. As it will not be possible to address all of these behaviors in one article, our study is limited to criminal law. In the article, after surveying the classical opinions about criminal capacity and the data revealed by positive sciences such as the endocrinology, development psychology, clinical psychology, juristic psychology the idea of sexual maturity and contentment in criminal law was questioned; it is presented that it is possible to produce a concept in the form of criminal majority and an on the content. In the study, both the legal approach of determining the age for criminal capacity and preventing criminal investigation to the individual before this age and the approach to leave the determination of criminal responsibility to the judge were used. In studies on the development stages and characteristics that we use, the development of sexual average is identified as about 14 for particular of Turkey. It starts to become stable after completed the age of 14 with spiritual disorder. Skills such as managing behavior and acting independently are observed in later stages of development due to the latest maturation of the frontal lobe, which is the executive center of the brain. In our paper, in the light of these information the issues of criminal capacity and remission were handled. This paper comprises an assesment of relationship between the terms bulugh (puberty), demanded for religious and legal responsibility in Islamic law and rushd, mostly appearing in financial law by examining each term and highlighting their meanings. As a result of the doctrine review regarding these two concepts and related provisions it is concluded that judgemenets in relation to the terms are open to interpretation and re-evaluation in consideration of current data. Yet, different perspectives from fiqh and kalama re available. Within the framework of fiqh bulugh means sexual maturity and qualifies a person for responsibility. Whereas form a kelamic point of view an intellectual maturity is accredited. Given an example, Sharif Jurjani asserted that the contracting level of an individual would change in accord with each single subject of mind. This approach could provide a basis for the idea of assigning particular responsibility/liability criteria for particular human action. Narratives on Surah Nisa's sixth verse and its revelation were effective in restricting the meaning of the term rushd to being able to master property whereas its semantic fieald is wide enough to encompass the meaning the ability of conducting properly in every situation or life aspect. Scholars of the classical era were adopting the idea that bulugh and rushd would occur concurrently. The codification movement getting under way in the nineteenth century points to an alteration in the notion and to a general acceptance of revoking sexual maturity as essential for rushd. Ahwal ash-Shahsjja and Duraru'l Hukkam shows some examples of this alteration. An approach to rushd like the fuqhaha's, expecting it after a physical substructure is felicitous, but confining the term to a fiscal space imlies 'not to accept a person as an adult' which in our opinion does not corralate with reality. Yet, indicators of bulugh accepted by scholars like the first menstruation, wet dream, pubic hair are affected by many factors such as genetic or environmental factors, nutritional habits, drugs, visiual and audical stimulants etc. Moreover, they indicate signs for the onset of an intellectual development rather then an intellectual developmental completion. Thus, presenting such symptoms as an unvarying over time criteria and as standing for everyone in all religious-legal responsibility areas does not seem convincing. Over the course of transition to a modern society, fundemantal changes taking place in our individual and social lives have altered the intellectual framework of some notions in our minds. The perception of childhood and minor- adult discrimination have taken their share as well. Since notions have been experiencing such a significant transition, it is crucial to reevaluate issues related to them. Grounding responsibility on sexual responsibility in all extensions may not bring problems in societies where sexual maturation promotes intellectual-behavioral maturity, and are not open to undergo any chang. But it is a fact that due to various reasons such as the extention of compulsory education to eighteen, parenting styles, social security and inernational protocols etc. Individuls exhibit a delayed maturation in our current world. Thus, it is inevitable to consider an intellectual and psycho-social maturity accompanied by sexual maturity for responsibility. We suggest here to set out some criteria, taken into consideration concurrently with sexual maturity, for liability in marriage, commercial and penal law etc. This study just examines criminal capacity because an addressing of all criteria related to these areas would go beyond the limits of this paper. The mental maturation present in the person is also reflected in person's actions. In that case, we need to do in the first step is to examine whether individuals who are called teenager who have reached carnal maturity behave with full knowledge and willpower. The average age of puberty in Turkey's conditions are identified as 14. Respectively, the incidence in other ages is 15, 13, 16 and 12 years. Since the occurrence of puberty at an earlier or later age is quite low / exceptional, we have analysed the behavior of individuals between the ages of 12-16 and the factors affecting will in these behaviors. These effects may be based on such as cognitive, hormonal, neural and cerebral elements or environmental and socializing situations. In our opinion, it is preferable to set a final age limit for criminal liability to be investigated and to present some indications that indicate responsibility for individuals before this age and leave discretion to the judge. Accordingly, it is possible to determine the final age in which the criminal responsibility will be investigated as 14 age. Because in those who complete this age, cognitive development almost reaches the level of an adult, emotional distress begins to stagnate, the person accepts the physical and spiritual change and goes into adaptation. For individuals who have completed the age of 14 will not be obliged to carry out additional research for the determination of criminal liability-unless there are strong symptoms for the contrary situation. However, if it is determined that the management center of the brain has not reached sufficient maturity in terms of control and since it is the last maturing department, it can be considered as a reason for the alleviation of punishment if it is determined that these characteristics of individuals after 14 years of age have a direct effect in the crime committed. The two most important issues that will guide us for the existence of a criminal capasity in those who have not completed the age of 14 are to gain the ability of abstract thinking and to fully understand that their action is a crime and not accepted by the society. It will be suitable to give compensation penalties instead of the punishments applied on the body such as hadd and qisas, If the penal majority is fixed without realizing puberty. Because physical strength is also taken into consideration in Islamic law. There is no obstacle for these people to receive the necessary punishment for crimes requiring financial penalties. Because financial punishment is based on the financial asset (zimmah) of the person and not the realization of the puberty. If puberty exists, but criminal majority does not exist, this situation should be considered as suspicion and punishments applied on the body should be turned into compensation. However, this does not prevent the judge from applying measures (ta'zir).