ضمان تأديب المتعلم بالضرب في الفقه الإسلامي دراسة مقارنة بقانون الجزاء الكويتي

Abstract

Purpose: The aim of the study is to address the phenomenon in educational institutions, namely, corporal punishment administered by teachers to students. This method of punishment sometimes even reaches the stage of torture. In fact, that type of punishment has become intended for itself rather than as a means of education and discipline. The study deals with corporal punishment that goes beyond the usual and undeserved limits, particularly that which has a tangible impact. It delves into the matter from a Fiqhi (Islamic Jurisprudential) and legal point of view. The study reviews Islamic jurists’ opinions regarding the impact of corporal punishment on students and weighting their opinions. The study also mentions the conditions for civil liability, as well as disciplinary controls and comparing that with the Kuwaiti penal code..

Methodology: The study is based on the inductive methodology of extrapolating texts and opinions in Islamic Fiqh (Jurisprudence) on the issue of discipline-related liability. The study, then uses the descriptive analytical methodology to describe the real status of the reality of discipline, its types, related liability, analysis of Fiqhi opinions in relation to the matter, and finally the comparative methodology in comparing opinions in Islamic Fiqh.

Findings: The study reaches an overall result that teachers who discipline their students are liable for all damages, even if the punishment is mild and not typically one that causes injury. This is the opinion of Abu Hanifa and Al-Shafi’i. Furthermore, there is a considerable consensus with the Kuwaiti penal code in the conditions of discipline and the liability that entails. The study is distinguished over others in that it compliments some aspects in previous studies through legal comparison. Moreover, the opinion weighted in the study is contrary to previous studies.

The researcher recommends the need to carefully select the teacher through an interview under the supervision of specialists in education and psychology. This is in addition to the need for continuous monitoring of the teacher's performance. If the student is entitled to corporal punishment, it must be carried out under administrative, psychological and educational supervision, while adhering to Islamic Shari’a disciplinary controls.