Document Type : Original Article
Associate Professor, Department of Islamic Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.
Ph.D. Student in Criminal Law and Criminology, Faculty of Law, Shahid Beheshti University, Tehran, Iran.
Empiricism, as a philosophical school, has been influential in various fields of science through suggesting experiential method. The usage of this method in criminal law is also being expanded. Due to the religious foundations of law in Iran, it is necessary to recognize the possibility of using empirical method in Iranian criminal law system. According to some articles of Iranian constitution using advanced human experiences and trying to advance them in order to achieve the goals of the Islamic Republic of Iran is necessary. Among the sources of Islamic law is binā al-oqalā i.e. common sense or manner of the wise people and there is no doubt that wise people rely upon experience. Even though experiential studies don’t result in surety and certainty they bring credible conjecture and Islamic view recognizes credibility of such knowledge. In practice, Iranian legislator has paid attention to the findings of experiential studies less and more in all types of punishments like had(prescribed punishment), qisās(retaliation), diyah(blood money or compensation) and ta’zīr(discretionary punishment). The legislator's benefit from empirical findings in Iranian criminal law, however, has not been based on statistical and precise studies. This shortcoming, in its turn, has resulted in a huge number of changes which have not been based on considering the previous experiences.