Criminal law and criminology
Taher Tohidi; Mohammad Ashouri
Abstract
By reflecting on social relations, the footprints of power will be revealed, and in other words, power has a fluid presence in all matters of human life. Human societies have accepted the power of Mehr by establishing a political system for the order of affairs, and by establishing various institutions, ...
Read More
By reflecting on social relations, the footprints of power will be revealed, and in other words, power has a fluid presence in all matters of human life. Human societies have accepted the power of Mehr by establishing a political system for the order of affairs, and by establishing various institutions, they have tried to manage their affairs. By accepting the principle of separation of powers in a society or sovereign territory, the legislative, executive and judicial institutions will work together in harmony, and it is obvious that these institutions will also be affected by the ruling political context. The institution of criminal legislation in every society will explain the legislative policies and determine the normative boundaries and protect the value models of the citizens, and without a doubt, the determination of this value territory is also a function of power considerations, the foundations of which are established in the general policy of the country. The fluid power in the public policy of a country will determine the direction of the criminalization and punishment processes in the context of legislative criminal policy and with this description, the influence of power on the criminalization and punishment processes will be revealed. Power has manifested itself in different forms and on this basis, the degree of influence on various categories in the administration of a society will also be different. Political power, military power, royal power or religious power, media power and other examples, depending on the type and nature of the ruling regime of a society, can affect the legislative framework and the regime of crimes and punishments against illegal behaviors. Therefore, it is reasonable to maintin that the legislative system will be affected by the context of the ruling power. Realizing that power, whether obtained through legitimate means or through force and domination over subordinates, ultimately affects the legislative system and the processes of criminalization and determining punishments, and this issue will be the beginning of a way to another research: how this affects the institutions responsible for determining crimes and punishments will be determined. On this basis, in terms of revealing the new discourse of influence of power in the hidden layers of the legislative policy of the countries, which in the future and in the hands of the governments, will become a power in the direction of controlling and restraining the subjects that make up the discourse of power, the present article has been written in order to present an answer to the important question of "How does power influence the processes of criminalization and punishment?" Undoubtedly, today, with the ever-increasing development of the "government" institution in its many forms, it has made people see more clearly the influence of economic, military powers at the national and international levels. In some cases, the influence of political power in the approval or non-approval of punitive laws is so obvious that the role of expediency can be clearly seen. Expediency in supporting and protecting the interests of a limited number of people or belonging to a specific group causes the approval of laws that are completely contrary to the criterion of "public interest" and makes the color and shape of some laws so clear that other than protection. It does not serve any purpose of special group interests. It should not be forgotten that in such cases, the law is passed in the name of protecting the interests of the general public of a society. In many cases, it can be seen that in authoritarian government systems, the people are not at all aware of the mass of approved laws, and the people's representatives are also under the direct influence of economic, military, and media power, etc.The question of "How does power affect the processes of criminalization and punishment?" is a question that needs to be analyzed due to the lack of research writings in the scientific bases of the country, and we have tried to understand its hidden layers with an analytical-descriptive method and using theoretical sources. In this regard, uncovering the role of power in the process of criminalization and that the system of crimes and punishments determined for them is itself a function of the foundations of the ruling power, is considered the achievement of the article, because it puts a seal of approval on the fact that; the type and even the amount of crimes are based on the ruling powers and their beliefs, and therefore, it is not always the case that the interest of the individual is the basis of criminalization, and the appeal to the concept of protection of the "public good" is itself a sign of the superiority of political power and its obvious influence in determining the system of crimes and punishments. In other words, in many cases, the political governments of countries act through the system of criminalization-punishment to maintain their power and in this way keep the citizens in the center of power.
Mehdi Jaliliyan; Ahmad Haji Dehabadi; Mohammad Ebrahim Shams Nateri; Mahdi Sheidaeian
Abstract
The response to the complicated issue of the scope of self-ownership has shed light on the issues like unnecessary cosmetic surgery, gender reassignment surgery, and organ transplant in the convicts of execution. From the viewpoint of Islamic jurisprudential doctrines, there are a myriad of disagreements ...
Read More
The response to the complicated issue of the scope of self-ownership has shed light on the issues like unnecessary cosmetic surgery, gender reassignment surgery, and organ transplant in the convicts of execution. From the viewpoint of Islamic jurisprudential doctrines, there are a myriad of disagreements over the subject of whether men are the owners of their organs or not. The resulted approach is that Islamic viewpoint, contrary to western ideologies which are humanistic, does not completely accept self-ownership. From the viewpoint of Islamic jurisprudence, freedom of men and their dominance on their body is an axiom but cannot expose them to unreasonable harm. From the standpoint of western legal theory, the proponents of self-ownership believe men are the owners of their organs and thus maintain that this law faces some limitations in the framework of natural law. Moreover, they hold that criminalization of unreasonable harm to self is not to be justified. In contrast, those who believe in the moral patriarchal theory object to self-ownership and justify the criminalization of such conducts. The present article analyzes the afore-mentioned standpoints through a descriptive method and then compares unreasonable cosmetic surgery in the criminal law of Iran with those of England andؤ
Yazdan Seyghal; Amir Irani
Abstract
Endangerment as a criterion for those behaviours that can potentially and potentially threaten the health and safety of individuals in the future is a criterion that considers the behaviour worthy of attention regardless of the outcome. This criterion can provide a comprehensive model in describing (wrongdoing ...
Read More
Endangerment as a criterion for those behaviours that can potentially and potentially threaten the health and safety of individuals in the future is a criterion that considers the behaviour worthy of attention regardless of the outcome. This criterion can provide a comprehensive model in describing (wrongdoing or criminalization) behaviours against health and safety, according to the basic philosophical principles in the principle of injury by referring to possible injuries and their classification. This article seeks to answer the fundamental question of how and by what approach can a significant number of immunosuppressive behaviours be envisioned as a criterion of risk in criminal law by explaining the income based on the description of the risk criterion. It seems that the Iranian legislature, by dividing the legal instances of risky behaviours, not only deviates from the goals of systematic description, i.e. social safety, but also pays attention to the need to separate instances of error from crime and systematic possible degrees of risk in regulations and adjust the position of criminal law in ensuring safety and preventing risky behaviours.
Roohollah Rahami; Fatemeh Mohseni Jeihani
Abstract
AbstractMany codes advocating public morals have been challenged during recent years. The decriminalization of immoral acts, as one of the most important aspects of modern criminal law, has been rooted in the arguments of scholars such as John Stuart Mill and Joel Feinberg on the state intervention in ...
Read More
AbstractMany codes advocating public morals have been challenged during recent years. The decriminalization of immoral acts, as one of the most important aspects of modern criminal law, has been rooted in the arguments of scholars such as John Stuart Mill and Joel Feinberg on the state intervention in individual liberties. These scholars by developing freedom restricting principles have advocated a kind of minimalist criminalization in the sphere of public morality. Moreover, the international human rights law system, in an effort to balance cultural diversity and universal values, has endorsed public morality as one of the permissible restrictions on unrestricted civil-political liberties. In fact, following developments in the performance of governments in the field of public morality, the international human rights system, by providing a progressive interpretation of the principles governing criminalization, reject the legal moralism has attempted to defend a kind of rights-oriented criminalization that protects the rights and freedoms of vulnerable people.
shayan akbari; Ahmad Fallahi
Abstract
Existentialism is a philosophical school that gives a special importance for two principles of "freedom" and "responsibility". Jean-Paul Sartre, with philosophical arguments, comes to the conclusion that "human is condemned to freedom" and thus perceives the deepest possible form of freedom for human. ...
Read More
Existentialism is a philosophical school that gives a special importance for two principles of "freedom" and "responsibility". Jean-Paul Sartre, with philosophical arguments, comes to the conclusion that "human is condemned to freedom" and thus perceives the deepest possible form of freedom for human. Given the freely-centered approach of existentialism and because the concept of freedom enjoys a distinguished standing in the school, involvement of idea and components of the school in the world of criminal law gives us a significant analysis and inferences. By examining the demands of existentialism in the field of criminalization and decriminalization, it is evident that any restriction of personal freedom is in confrontation and conflict with the principles of existentialism and accordingly, the theories of paternalism and legal moralism, according to this school of thought, are threatening the individual freedoms. According to the idea of existentialism, resort to criminalization is permissible when freedoms of individuals are subject to damage. In this regard, the scope of individual freedoms in criminal law is broader, it will be closer and more compatible with existentialist demands and vice versa, limitation and narrowing individual freedoms and extreme and maximum criminalization will be in contrast to criminal approach of existentialism.
Mohsen Eini
Abstract
Counterfeit medicine trafficking threatens public health, regardless of its harmful economic consequences and has determined the international community to effectively combat it. Criminalization of counterfeit medcine trafficking and similar behaviors, according to an international instrument is the ...
Read More
Counterfeit medicine trafficking threatens public health, regardless of its harmful economic consequences and has determined the international community to effectively combat it. Criminalization of counterfeit medcine trafficking and similar behaviors, according to an international instrument is the most important strategies to combat this phenomenon. However, at the regional level,Council of Europe Convention (MEDICRIME) has proposed, criminalize counterfeit medcine trafficking and similar behaviors and give appropiate response to it by Member States . In the Iranian law, “the act relating to medical, medicinal regulations” approved in 1955 with subsequent adhesions, without reference to medicine trafficking , attempted to organize medcine importation and exportation and combat medicine counterfeiting. However, the law on combating smuggling of goods and currency ,approved in 2014, has clearly criminalized medcine trafficking, regarded trafficking medcine - like other goods- as an economic crime and in the criminalization, it has considered no prominent role for public health. The article suggests to define the concept of counterfeit and illegal medicines and independent criminalization of trafficking counterfeit and illegal medcines such as substandard medicines which falls into the category of crimes against health, due to its harmful consequences on people’s health.
modjtaba jafari
Abstract
Being one of the sexual offences which today is criminalized in almost any countries, the crime of rape include an important element that is use of force by the offender to have a sexual relation with some one else. Accordingly, although the victim will certainly defend her self, but ...
Read More
Being one of the sexual offences which today is criminalized in almost any countries, the crime of rape include an important element that is use of force by the offender to have a sexual relation with some one else. Accordingly, although the victim will certainly defend her self, but ultimately this is the offender who overcome the defender and will reaches to his purpose. During the last decades that this behavior has been criminalised in the world, some questions have been leaved without any answer in the mind of the legalists and the public opinion. One of the most important question in this area consist of a concept concerning the "victim consent" in the crime of rape. In other word, the question is that what is the" victim consent"? and what we mean by the "lack of consent" as one of the principal elements of the crime of rape? In a wish of doing a critical analysis of the Iranian situation about the subject, we will try to reconstruct the Iranian rape law by flowing a comparative study between Iranian and England rape law. Our purpose will be to harmonise the positive law with the modern facts of society. This critical study will be finished by proposal of some necessary reforms in the Iranian rape law
Firouz Mahmudi janaki
Volume 3, Issue 9 , January 2015, , Pages 83-110
Abstract
Criminalization theory originally supports restriction of criminal law’s border. The question which has been risen is whether the construction of existing theories is about the interests and goals or rights? Examination of German doctrines “Legal Interests” which are goal-oriented and ...
Read More
Criminalization theory originally supports restriction of criminal law’s border. The question which has been risen is whether the construction of existing theories is about the interests and goals or rights? Examination of German doctrines “Legal Interests” which are goal-oriented and the comparison of it with current theory in the English-American philosophy – i.e. harm principle that inherently is behavior-oriented – clearly shows that: although this principle provides that the only or the most pivotal criteria for the criminal intervention of state is to prevent from harming others, German doctrines justify such an intervention on the basis of goals and protectable legal interests; since such theory has been based on violation of “right”. Even though, during the course of evolution, the concept of “Gut” has been gradually replaced by violation of interest in the German theory, understanding the legal interest under the circumstance of contradiction and opposition is truly based on the concept and theory of right. On the other hand, although the harm principle is originally based on the concept of harm, its foundation on the “interest” – albeit in the context of utilitarianism– drew it close to the German doctrines. However, growth of German theory in the context of philosophy of “right” provided a considerable distinction from measurement of interests inspired by utilitarianism in harm principle.
Akbar Vorurai; Reza saadati; hamid hashemi
Volume 3, Issue 8 , October 2014, , Pages 33-62
Abstract
In consistent behaviors against the public morality and chastity is undeniable in society (community) .But what seems o to be important, is the government s response against the behaviors. What behavior should be banned and which can be out the legal, are questions that should be answered in the ...
Read More
In consistent behaviors against the public morality and chastity is undeniable in society (community) .But what seems o to be important, is the government s response against the behaviors. What behavior should be banned and which can be out the legal, are questions that should be answered in the areas of law and moral philosophy. The legal system in west, is influenced by the ideas of liberal and less in clined to support moral behavior. On the contrary, criminal justice system in Iran plans more supportive of moral behaviors. Decriminalization and criminal inflation are the issues of judiciary and law enforcement agencies. Unfortunately, these two categories are discussed in criminology and sociology has been less expressed in Iran’s legal system. At last this study, examines the impact at moral in criminalization and Decriminalization in four areas in Islamic penal code.
Seyed Mahmud Majidi
Volume 2, Issue 6 , April 2014, , Pages 165-181
Abstract
According to the close relations between criminal issues and publicsecurity and order in one hand and different opinions in Islamic Law in themost of criminal matters on the other hand, adopting the proper approach bythe legislator has been greatly taken into consideration. Wise choice ofFatwa (religious ...
Read More
According to the close relations between criminal issues and publicsecurity and order in one hand and different opinions in Islamic Law in themost of criminal matters on the other hand, adopting the proper approach bythe legislator has been greatly taken into consideration. Wise choice ofFatwa (religious doctrines) which provide public security in the provisionsof retaliation in the new penal code by the legislator is clearly visible andobvious. This essay tried to express some appearances of legislator’sapproach such as: criminalization of killing a person who is supposed to bekilled according to the law (deserving death), criminal protection of victimsof murder, acceptance of blood money by avenger of the blood without themurderer’s consent, developing the guarantees of debts to treasury forprevention of its misuse by criminals, criminalization of killing the murdererby avenger of the blood without the court permission, and the consideringthe killing by mistake in victim’s personality as murder. These aspects mayshow increase of importance of public security by the legislator. It alsoincreases the hope among the law scholars that preference of Islamic lawopinions providing the public security by legislator is accepted as a generalmethod which can be taken into account during the enactment of othercriminal provisions.
Hussein Gholami
Volume 1, Issue 2 , January 2013, , Pages 41-65
Abstract
Defining the scope of criminal law and legitimated level ofintervention through criminal law over the rights and freedom ofcitizens as the most serious kind of such intervention, is a complicatedand difficult matter. The principle of criminal law as the last and theleast resort as a basic principle of ...
Read More
Defining the scope of criminal law and legitimated level ofintervention through criminal law over the rights and freedom ofcitizens as the most serious kind of such intervention, is a complicatedand difficult matter. The principle of criminal law as the last and theleast resort as a basic principle of this knowledge, technique andinstrument of social control, as emphasizes upon the destructiveresults of abuse of penal concepts, instruments and institutions, tries todetennine the appropriate level of intervention through criminal lawand provide the possibility of usage for other kinds of social controlinstruments and institutions. This article, as emphasizes upon thenecessity of considering this principle in more details, will discuss theconcepts, basics and implications of this principle for penal policy(criminalization and penalization).
Saeed Qomash
Volume 1, Issue 1 , October 2012, , Pages 137-158
Abstract
Studying the discussions of political philosophy, the law andanalysis of criminal laws all show that the criminalization can happengenerally depending on the principle of harm and three views ofpatriarchy, morality, and perfectionism. In perfectionism it is believethat for moral promotion and the development ...
Read More
Studying the discussions of political philosophy, the law andanalysis of criminal laws all show that the criminalization can happengenerally depending on the principle of harm and three views ofpatriarchy, morality, and perfectionism. In perfectionism it is believethat for moral promotion and the development of spiritual perfectionof man, using punishment is necessary. Since, today, humanitariandignity is accepted as a religious and human value, using punishmentfor promotion of moral personality is inconsistent with humanitariandignity. Therefore, humanitarian dignity can be considered as theprevention of developing criminalization
