Criminal law and criminology
Mahdi Sheidaeian; Masoud Hajiyani
Abstract
Contrary to common belief, there is no precise and universally accepted definition of punishment. In fact, many criminal laws, including those of Iran, do not provide a clear definition of punishment, with legislators and some thinkers often assuming it to be an obvious concept. Nevertheless, a variety ...
Read More
Contrary to common belief, there is no precise and universally accepted definition of punishment. In fact, many criminal laws, including those of Iran, do not provide a clear definition of punishment, with legislators and some thinkers often assuming it to be an obvious concept. Nevertheless, a variety of definitions have been proposed, most of which emphasize the element of pain and suffering, with many describing the "painfulness" of punishment as one of its central components. This research aims to redefine punishment within penal systems, using a descriptive-analytical method and library-based data, in order to answer the question: What is the true nature of punishment?
The goal of this article is to present a new reinterpretation of the concept of punishment—one that moves beyond the functional and formal aspects of conventional definitions and explores its conceptual and structural foundations. Through a comparative analysis of the concepts of punishment, pain, and violence, it is demonstrated that what is often regarded as an inherent characteristic of punishment—namely, "suffering"—is not a fundamental component, but rather a natural consequence of another action: violence. Violence is understood as an external, intentional act based on an unequal power relationship, aimed at harming, dominating, or imposing one’s will upon another. This structure is shared by punishment, with the key difference being that punishment, in contrast to general violence, is legitimized and formalized by the legal system. In other words, punishment should be regarded as legitimate, structured, and institutionalized violence, applied in the name of justice. Within this framework, "pain and suffering" are not essential to punishment itself, but rather result from its legitimate violence. Although this suffering may be justified by benevolent intentions such as deterrence, correction, or social relief, from a structuralist perspective, it does not alter the inherently violent nature of punishment.
Thus, the central hypothesis of this research is affirmed in two ways: first, pain and suffering are not constitutive elements of punishment, but its consequences; and second, the structure of punishment aligns closely with that of violence—differing only in its intentional, structured, and legally sanctioned application.
The redefinition of punishment, if taken seriously, is not merely a theoretical exercise; it directly impacts how we understand and organize penal systems, criminal policy, judicial reforms, and even the concept of "justice" itself. If we accept that punishment is inherently a form of violence, we are confronted with the difficult moral question of whether intentionally inflicting suffering on a human being, even under the guise of law, is justifiable. Moreover, this redefinition highlights that the consequences of punishment extend beyond the individual offender; society itself becomes complicit in the cycle of suffering and harm that punishment perpetuates. This challenges the stated goals of punishment and raises doubts about their actual effectiveness. It is possible that part of the persistent failure of punitive systems lies in the fact that punishment, at its core, is organized violence, and violence—whether it is employed in the name of deterrence, correction, or order—rarely yields constructive or restorative outcomes.
As such, attention is shifting away from punishment as the primary solution and toward the search for less violent, more humane alternatives. Restorative justice, which focuses on repair, reconciliation, and reintegration of both victims and offenders into society, offers one such alternative. This approach seeks to break the cycle of punishment and revenge. It is also aligned with ideas such as the "right not to be punished" and the "right to rational punishment," providing a theoretical framework for rethinking criminal policy. On a deeper level, redefining punishment necessitates addressing the root causes of crime—such as poverty, discrimination, and structural inequalities—that are often marginalized in traditional discussions of criminal justice.
In conclusion, if we regard punishment as a legal form of violence, then pain and suffering cease to be its "essence" and become instead the consequence of violence that is applied in a systematic and legitimate manner. Punishment, in this view, is a deliberate, structured, and institutionalized violence labeled as justice. Therefore, the final recommendation of this research is that any discussion of criminal justice must be accompanied by an awareness of the violence inherent in punishment. Efforts to minimize this violence at the levels of law, the judiciary, and enforcement should become a central concern for policymakers. Redefining punishment and acknowledging the violence it entails should be seriously considered in the pursuit of more effective and humane justice.
Criminal law and criminology
Mohammd Farajiha; Sanaz Ganjkhanlou
Abstract
This study addresses a significant gap in Iran’s criminal justice system concerning women who commit crimes under conditions of coercion and unequal power dynamics within marriage. "Marital coercion" refers to situations in which a woman is forced, through threats, intimidation, violence, or sustained ...
Read More
This study addresses a significant gap in Iran’s criminal justice system concerning women who commit crimes under conditions of coercion and unequal power dynamics within marriage. "Marital coercion" refers to situations in which a woman is forced, through threats, intimidation, violence, or sustained psychological manipulation by her husband, to engage in unlawful acts. While many legal systems worldwide recognize this form of coercion—either as an independent defense or within broader doctrines of duress, compulsion, or diminished responsibility—Iranian criminal law lacks an explicit provision for it. The only relevant legal framework is the general concept of duress, which imposes strict evidentiary requirements and fails to account for the gendered realities of marital power dynamics. As a result, the experiences of women coerced by their husbands rarely find adequate representation in judicial decisions.
Using a qualitative methodology, this research explores how Iranian judges interpret the criminal responsibility of women who commit crimes under marital coercion. Data were collected through in-depth interviews and document analysis, involving 21 female offenders or women at risk of offending, as well as judges from Tehran and Zanjan. Additionally, 10 criminal case files involving female defendants were reviewed. Thematic analysis of the interviews revealed judicial reasoning patterns, operational definitions of coercion, and judges' sensitivity (or lack thereof) to gendered dynamics within marital relationships.
Findings show that Iran’s criminal justice system rarely acknowledges the structural and relational contexts that lead women to commit crimes under coercion. Most judges view marital relationships as inherently non-coercive and interpret duress narrowly, focusing solely on physical threats of immediate harm. They generally do not recognize threats like divorce, economic dependence, social stigma, child custody, or psychological control as sufficiently serious to negate criminal responsibility. This perspective overlooks the lived experiences of women trapped in long-term, subtle, but powerful mechanisms of control that do not align with the male-centered, incident-based legal definition of duress.
A smaller group of judges acknowledges that coercion within marriage may drive women toward criminal behavior. However, they argue that the absence of explicit legal recognition of marital coercion prevents them from mitigating or eliminating criminal liability. These judges express that, without legislative backing, they cannot rely on gender-sensitive interpretations, even when they believe the woman had little or no autonomy in committing the offense. The lack of a clear legal provision forces them to treat coerced women in the same way as fully autonomous offenders.
A third, more pragmatic group of judges adopts a flexible approach. Although they cannot formally accept "marital coercion" as a legal defense, they use existing tools like mitigation, suspension, or postponement of punishment to issue fairer judgments in cases where a woman’s involvement in crime is clearly shaped by her husband’s coercive control. These judges exercise contextual interpretation, judicial discretion, and a recognition of the woman’s social, psychological, and economic vulnerability. This approach implicitly acknowledges the relevance of gender and power dynamics, even without explicit statutory guidance.
The women interviewed in this study often described experiences of physical abuse, emotional manipulation, economic control, threats to their children, and fear of social stigma—factors that made refusing their husbands’ demands seem impossible. Many had attempted to seek help from law enforcement or judicial authorities, only to have their complaints dismissed as private marital disputes. The failure of authorities to intervene in cases of domestic violence effectively silences women and reinforces the cycle of coercion. When these women later face criminal charges, their earlier victimization is rarely acknowledged, further marginalizing them within the legal system.
Analysis of case files reveals that the law’s gender-neutral approach to duress fails to account for the specific forms of coercion that women commonly face in patriarchal societies. Threats such as divorce, loss of custody, social humiliation, or homelessness may be legally dismissed as insignificant, but for many women, these threats carry significant psychological weight. Iranian courts often demand evidence of imminent physical harm, disregarding the cumulative nature of coercive control and its gradual erosion of a woman’s agency.
Comparative legal analysis shows that jurisdictions such as the United Kingdom, Canada, the United States, Hong Kong, and Scotland have increasingly recognized coercive control and marital duress as grounds for reduced or eliminated criminal responsibility. Doctrines such as the "battered woman syndrome" or diminished responsibility help courts contextualize women's behavior within abusive relationships. In contrast, Iranian law lacks any doctrinal or procedural mechanism to integrate these realities into judicial decision-making.
The study concludes that the failure to recognize marital coercion in Iranian criminal law results in significant injustices for women who commit crimes under conditions of domination, fear, and dependency. The absence of a gender-sensitive legal framework misidentifies victims as perpetrators and disregards the structural inequalities that shape women’s paths to crime. The research recommends that a doctrine of marital coercion, or at least the allowance for diminished responsibility in coerced cases, would enhance fairness in Iran’s criminal justice system. Until legislative reform occurs, judges can mitigate punishment by applying broader interpretations of existing legal concepts and exercising their discretionary powers.
The findings underscore an urgent need for legal reform and judicial training to incorporate gender-sensitive perspectives into criminal adjudication. Recognizing marital coercion would promote justice for women and support broader societal efforts to combat domestic violence, reduce coercive control, and protect vulnerable individuals within intimate relationships.
Criminal Sociology
Mostafa Noori; Bagher Shamloo
Abstract
When norms and interactions arise within a society, they are understood as social phenomena or social reality. Across different countries, these phenomena may take deviant forms, which societies often define as criminal behavior. Punishment, in contrast, is a complex and multifaceted concept that seeks ...
Read More
When norms and interactions arise within a society, they are understood as social phenomena or social reality. Across different countries, these phenomena may take deviant forms, which societies often define as criminal behavior. Punishment, in contrast, is a complex and multifaceted concept that seeks both to deter crime and to prepare individuals for rehabilitation. While extensive scholarship has examined the advantages and disadvantages of punishment from various perspectives, a more fundamental question remains: Do we fully understand the concept of punishment itself? Addressing this question is essential before engaging in deeper philosophical or theoretical debates. Given the sociological nature of punishment, this study proposes a distinctive and constructive definition influenced by eighteenth-century positivism. Although theoretical insights are valuable, adopting a scientific and objective approach to understanding punishment is of primary importance. By recognizing punishment as a social phenomenon, we can examine its relationship with broader social structures, particularly social solidarity. Generally, the penal system rests on two equally significant foundations: the authority of power and sovereignty, and social solidarity rooted in the collective conscience. Consequently, identifying the relationships between punishment and other social phenomena allows for a more accurate and comprehensive definition of punishment. Using a qualitative and interdisciplinary approach, this research examines the position of punishment among other social phenomena and analyzes its relationships with them, drawing on findings from sociology and criminal justice studies.
Introduction:
Crime and punishment are two fundamental social phenomena from which no society has ever been exempt, and they continue to attract increasing attention from legal scholars and sociologists. Although these phenomena are closely interconnected and form a causal relationship, they differ significantly in nature. Crime, despite being an inevitable and enduring element of human societies, is consistently regarded as a deviant and negative phenomenon. Punishment, by contrast, has been shaped by diverse philosophical foundations—including moralism, justice-oriented theories, utilitarianism, and social utility—and is generally perceived as necessary and positive. This characterization, however, does not imply support for the expansion or prescription of punishment.
The present study focuses specifically on the nature of punishment. Temporally and conceptually, it precedes inquiries into the logic of penalization and the mechanisms of criminalization. Consequently, discussions concerning the philosophy of punishment, its quantity and quality, and its legitimacy belong to subsequent stages of analysis and fall outside the scope of this research. Moreover, the issues addressed here are examined independently of the perspectives of penal reformers and the established schools of criminal law, such as the Classical, Positivist, and other traditions. This is due, first, to the study’s primary objective of deepening and analyzing the concept of punishment from a sociological standpoint, and second, to its departure from approaches that typically conceptualize punishment in purely philosophical or abstract terms—as deterrence, as the complete realization of justice, or as a corrective and rehabilitative instrument. Instead, this study adopts a distinct approach by offering a combined definition that initially addresses the objective dimensions of punishment and subsequently its abstract aspects.
Examining punishment through the lens of criminal sociology—independent of predetermined goals, officially declared policies, and dominant penal theories—allows for an analysis of its nature, functions, transformations, and the role of social forces in shaping penal practices (Javan Jafari, 2012: 1085). Accordingly, this study engages with the works of prominent Western sociologists who have extensively explored punishment and its relational context. Among these contributions, Émile Durkheim’s analysis holds a particularly authoritative position; therefore, a critical examination of his work is essential for developing a realistic understanding of punishment as a social phenomenon.
One of the most significant features of Durkheim’s approach, which distinguishes him from other social reformers, is his examination of punishment largely independent of its functions, goals, and intentions. For Durkheim, punishment should not be defined, as policymakers often do, as a deterrent mechanism for reducing crime, nor, as penal scholars typically do, as the official response of a competent authority to criminal behavior through formal penal techniques administered by the criminal justice system (Gholami, 2020: 20–22). Rather, he regarded punishment as possessing an inherent reality and authenticity within society. From this perspective, punishment is a meaningful institution through which social values are expressed and collective moral energies are released. More precisely, punishment does not serve a predetermined purpose, nor is it merely a means to achieve objectives such as crime reduction, prevention, or deterrence. Instead, it emerges as a social fact that exists by virtue of the nature of social life itself (Cladis, 2023: 45).
Accordingly, rather than interpreting punishment through preconstructed theoretical frameworks and then explaining it in those terms, this study emphasizes a direct engagement with the essence of punishment in order to understand it on its own terms. This approach minimizes interpretive intermediaries and seeks, as far as possible, to reach the core meaning of punishment as a social phenomenon.
Criminal law and criminology
Mostafa Yeganeh; َAbdolAli Tavajohi
Abstract
The criminal liability of a partner for committing the two crimes of aggressive appropriation and destruction of common property is an issue that has long been controversial in the Iranian legal system. The following study, focusing on the judicial practice of Tehran province over the past decade, faces ...
Read More
The criminal liability of a partner for committing the two crimes of aggressive appropriation and destruction of common property is an issue that has long been controversial in the Iranian legal system. The following study, focusing on the judicial practice of Tehran province over the past decade, faces the following questions: “How does the judicial practice of this province comply with the legislator’s opinion regarding the crime of aggressive appropriation of common property after the enactment of the Islamic Penal Code of 1392?” Also, “To what extent is the judicial practice of the targeted province regarding the crime of destruction of common property in line with the unanimous decision of the Court of Procedure No. 10 dated 21/07/1355?” The findings indicate that the situation of the judicial practice of Tehran province over the past decade regarding the crime of aggressive appropriation of common property by one of the partners is not desirable. Furthermore, considering the aforementioned unanimous ruling, the judicial procedure of this province regarding the crime of destruction of common property also lacks the necessary alignment with this ruling in some cases.
International Criminal
Heidar Piri
Abstract
Introduction
The rapid development and proliferation of Artificial Intelligence (AI) systems, particularly in military and security domains, represent a paradigm shift with profound implications for international law. While offering potential benefits in efficiency and capability, the autonomous nature ...
Read More
Introduction
The rapid development and proliferation of Artificial Intelligence (AI) systems, particularly in military and security domains, represent a paradigm shift with profound implications for international law. While offering potential benefits in efficiency and capability, the autonomous nature of advanced AI systems raises acute legal and ethical challenges, especially concerning accountability for serious violations of international law. The deployment of AI in armed conflict, such as through Lethal Autonomous Weapon Systems (LAWS), and its use in contexts that may facilitate international crimes, like genocide, war crimes, and crimes against humanity, necessitates a fundamental re-examination of traditional legal frameworks. Current international criminal law is fundamentally anthropocentric, built upon the principle of individual criminal responsibility which requires both a physical act (actus reus) and a guilty mind (mens rea). This framework struggles to accommodate entities that can act independently, learn from their environments, and cause significant harm without direct, predictable human intervention at the moment of the act. This article delves into the core legal dilemma: who can and should be held accountable when an AI system commits an act that constitutes an international crime? It explores the feasibility and necessity of attributing criminal liability directly to AI systems themselves, potentially by granting them a novel legal status such as electronic personality (e-person), as opposed to, or in conjunction with, holding the various human actors in their chain of development and deployment responsible.
Research Question(s)
This research is guided by the following primary questions:
In the context of international crimes, who can be held accountable for proscribed acts or crimes committed by AI systems? Are there any grounds for labeling them as criminals or granting the status of e-person?
What are the legal and philosophical grounds for, and obstacles against, granting autonomous AI systems a form of legal personality (e-personhood) to bear rights and obligations, including criminal liability?
Can the existing requirements for establishing criminal responsibility under international law, particularly the actus reus and mens rea, be satisfied by AI systems in their current or foreseeable state of development?
What alternative models of liability, such as holding programmers, manufacturers, military commanders, or states responsible, are available and effective under current international law, and what are their limitations?
What are the potential solutions and necessary legal reforms, including at the level of the ICC Statute, to address the accountability gap posed by AI systems capable of committing international crimes?
Methodology
The article has been performed based on the descriptive and analytical research method. The necessary data has been collected by library method. The research adopts a critical and forward-looking approach, analyzing the coherence and sufficiency of existing legal doctrines, identifying conceptual gaps, and proposing normative solutions based on logical reasoning, comparative analysis of analogous legal constructs (e.g., corporate criminal liability), and the functional demands of international justice.
Results
The investigation yields several key findings:
The Case for Electronic Personality and Direct AI Liability:Arguments for granting AI systems a form of legal personality is compelling, drawing parallels with the historical extension of legal personhood to corporations. Proponents argue that highly autonomous AI, capable of independent analysis, decision-making, and learning, possesses a functional equivalence to the rational agency required for responsibility. The concept of "electronic responsibility" is presented as a necessary tool to prevent human actors from evading liability by hiding behind the complexity and autonomy of machines.
Significant Legal Obstacles:The path to direct AI criminal liability is fraught with major hurdles under current law:
Anthropocentric Foundations:The Rome Statute and the general principles of international criminal law are firmly rooted in human agency. Terms like "person" are interpreted as natural persons.
The Mens ReaRequirement: The most formidable barrier is the mental element. While an AI system can arguably satisfy the actus reus (the physical act), attributing intent, knowledge, or recklessness—subjective mental states tied to consciousness, moral understanding, and foresight—to a machine remains deeply problematic both legally and philosophically.
Lack of Legal Personality:AI systems currently lack recognized legal personality in international law, a prerequisite for being a subject of rights and duties, including criminal liability.
Punishment Incommensurability:Traditional penal theories (retribution, deterrence, rehabilitation) lose meaning when applied to non-human entities that cannot feel guilt, suffer, or be morally reformed.
Analysis of Alternative Human Liability:In the absence of direct AI liability, the focus shifts to human actors. However, attributing responsibility to programmers, manufacturers, operators, or military commanders is often hampered by practical and legal difficulties: the problem of many hands, the challenge of proving individual mens rea for unforeseeable autonomous actions, and the potential lack of "effective control" required for command responsibility when dealing with learning systems.
The article concludes that a multi-pronged approach is needed:
Strict Liability Models:The ICC and international criminal law may need to embrace forms of strict or no-fault liability for situations involving autonomous systems, moving away from mens reaas an absolute central pillar for certain contexts.
Regulation and Prohibition:Strengthening IHL compliance through rigorous legal reviews of new weapons (Article 36, AP I), enhancing precautionary measures, and potentially negotiating treaties to limit or ban certain types of autonomous weapons.
Statutory Reform:For direct AI liability to become viable, the Rome Statute would require amendment. Articles 1 and 25(1) could be revised to explicitly extend the Court's personal jurisdiction to legal persons or electronic persons, and a new framework for electronic responsibility would need to be codified.
Ethical and Technical Safeguards:Implementing robust ethical guidelines for developers, incorporating IHL rules directly into AI training (law encoding), and creating reliable fail-safe mechanisms for deactivation.
Conclusion
The advent of AI systems with significant autonomy presents one of the most profound challenges to the international criminal justice system. While the theoretical appeal of holding AI directly accountable, grounded in its capacity for autonomy, independent analysis, decision-making, and a functional approximation of intentionality, is as compelling as arguments for extending legal personality to other non-human entities, it is currently precluded by foundational legal principles. The core impediments are the irreconcilable absence of a mens rea in AI and the lack of an established legal personality, making the imposition of direct criminal responsibility neither theoretically coherent nor practically feasible under the extant anthropocentric framework. Consequently, in the near term, the most viable accountability mechanisms must focus on reinforcing the responsibility of the myriad natural and juridical persons involved in the construction, programming, training, and deployment of AI systems for their malfunction or unlawful outcomes. However, this human-centric approach is itself severely constrained by traditional mens rea requirements, creating a significant liability gap and risking an anomaly where international criminal law becomes ineffective in addressing harms caused by this technology, thereby undermining human rights protection and international justice.
To bridge this gap, a dual-path strategy is essential. Immediately, it necessitates strengthening preventive International Humanitarian Law (IHL) regulations and rigorously applying existing models of human responsibility across the AI lifecycle. Simultaneously, for the future, the international legal community must engage in proactive and principled reform. As AI evolves towards greater sophistication, the pressure to reconceptualize legal personhood will intensify. The ICC will only be able to effectively prosecute crimes involving autonomous AI agents if it embraces legal innovations such as strict liability and other alternative models of fault-based liability, which have so far been marginalized. Ultimately, ensuring accountability and preventing impunity for the gravest crimes may require international criminal law to transcend its strict anthropocentrism and incorporate a functional, graduated model of electronic responsibility. This represents a seismic shift in legal philosophy, demanding careful preparation and reasoned debate to develop the unique formula necessary for a future where the law keeps pace with technological agency.
Criminal law and criminology
Kamran Mahmoudiyan
Abstract
One of the most fundamental and yet challenging issues in the philosophy of criminal law is understanding the relationship between morality and law, and determining the limits of the moral legitimacy of criminalization. In this context, Aristotelian moral philosophy—centered on concepts such as ...
Read More
One of the most fundamental and yet challenging issues in the philosophy of criminal law is understanding the relationship between morality and law, and determining the limits of the moral legitimacy of criminalization. In this context, Aristotelian moral philosophy—centered on concepts such as eudaimonia, virtue, and justice—provides important theoretical resources for grounding the principles of criminalization. However, common interpretations of Aristotle often suggest that he advocates a complete overlap between individual morality and legal regulation. A careful examination of his works, particularly within the framework of justice theory, reveals a clear and essential distinction between moral faults and legal faults.
This study critically reexamines Aristotle’s conception of justice as a form of virtue, to clarify this distinction and explore its implications for the foundations of criminalization. The central question of this article is to investigate Aristotle’s theory of justice in relation to virtue, and to derive its implications for criminal law. The objectives of the study are: first, to explore the relationship between individual virtue and social justice within Aristotle’s ethical-political system; second, to analyze the role of key Aristotelian ethical concepts—such as good intention, the mean, practical wisdom (phronesis), and justice—in determining the limits of legislation; and third, to clarify the fundamental distinction between moral faults and legally punishable acts from Aristotle’s perspective. Ultimately, the study aims to establish the criterion of “harm to others” as the cornerstone of the legitimacy of criminalization in the Aristotelian framework.
The research employs an analytical-critical methodology, drawing primarily from Aristotle’s key texts, particularly the Nicomachean Ethics and Politics. The methodology involves conceptual analysis of virtue ethics, logical deduction of its implications for criminal law, and critique of reductionist interpretations of Aristotelian justice. An interdisciplinary approach, bridging moral philosophy and the philosophy of criminal law, is also utilized.
The findings indicate that Aristotelian ethics, with its emphasis on eudaimonia as the ultimate goal of human life, conceives virtue as a dispositional state grounded in conscious choice and situated within the mean between extremes. The full realization of virtue requires the simultaneous presence of good intention and right action, meaning that ethical judgment ultimately depends on the agent’s motivation. Key concepts in this ethical system—such as the mean, which is context- and person-dependent, and practical wisdom (phronesis), the capacity to discern the right course of action in particular circumstances—are inherently agent-centered and situational. Consequently, Aristotelian ethics cannot directly provide a basis for fixed legal rules, since determining the right action requires the judgment of a virtuous agent (phronimos) in a specific context, and cannot be reduced to universal principles.
Justice, in this framework, serves as the bridge between virtue and law. Aristotle distinguishes between general (universal) justice and particular (specific) justice. General justice refers to complete virtue in relation to others and conformity with the law, thus defining the scope of legislation and criminalization. Particular justice, on the other hand, is divided into distributive justice—concerned with the allocation of resources and positions based on merit—and corrective or rectificatory justice, aimed at restoring balance after harm has occurred. Crucially, from Aristotle’s perspective, the domain of law is defined by the criterion of “harm to others.” In other words, legitimate legislation is not intended to guide individual morality, but rather to preserve collective well-being and prevent harm to others. This criterion establishes a clear boundary between moral faults—concerned with individual character—and legal faults or punishable acts.
The study demonstrates that Aristotle does not conflate individual morality with law. Certain acts, such as murder, theft, and adultery, may be regarded as “pre-legal” or “intrinsically wrong” because they inherently disrupt human relations, regardless of positive law. Therefore, the central criterion for criminalization in the Aristotelian framework is objective harm to others, or the undermining of the common good and the conditions necessary for societal flourishing. This perspective explicitly rejects legal paternalism, which involves government intervention solely for individual welfare without harm to others.
Although practical wisdom is an individual attribute, mechanisms can be devised to institutionalize it within legislation and adjudication. The legislator, acting as a phronetic agent, can identify and criminalize public vices—collective patterns of behavior harmful to society—while considering the common good and citizens’ flourishing. Likewise, judges can assess intent, conscious choice, and situational factors through practical wisdom to determine the extent of criminal liability. Thus, virtue theory informs not only the definition of criminal acts but also the assessment of legal responsibility.
In conclusion, Aristotelian virtue ethics, despite being agent-centered and context-sensitive, provides a coherent moral foundation for criminalization through the lens of justice and the central criterion of “harm to others.” In this framework, legitimate criminal legislation rests on two pillars: first, the criminalization of intrinsically harmful pre-legal acts, such as murder and theft; and second, the criminalization of public vices that objectively undermine collective welfare and citizens’ potential for flourishing. This approach, by avoiding both moral relativism and legal paternalism and by clearly distinguishing between individual ethics and law, offers a balanced and coherent solution to the problem of criminalization. In this model, the practical wisdom of legislators and judges replaces rigid, inflexible rules without leading to subjectivism or arbitrariness in law.
)
