Journal of Criminal Law and Criminology

Journal of Criminal Law and Criminology

Empirical Approach to Punishment in Iranian Criminal Law

Document Type : Original Article

Authors
Rahim Nobahar 1
Mohammad Javad Kebriti Kermani 2
1 Associate Professor, Department of Islamic Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran.
2 Ph.D. Student in Criminal Law and Criminology, Faculty of Law, Shahid Beheshti University, Tehran, Iran.
10.22034/jclc.2021.269744.1461
Abstract
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.
Keywords
Islamic criminal law
fiqh
empiricism
valid conjecture
A Group of Researchers. Encyclopedia of Principles of Jurisprudence. 1st ed. Qom: Research Institute for Islamic Sciences and Culture, 2010. (in Persian)
Ansari, Morteza. Fara’id al-Usul. Qom: Majma‘ al-Fikr al-Islami, 1998. (in Arabic)
Ansari, Morteza. Matarah al-Anzar. Qom: Al al-Bayt, 1983. (in Arabic)
Ardebili, Mohammad Ali. General Criminal Law. 2nd ed. Tehran: Mizan, 2013. (in Persian)
Asghari, Alireza, Alimorad Mohajeri, and Hossein Sanaei. “Blocking from the Perspective of Ayatollah Shobeiri Zanjani.” Imam Mohammad Baqer Jurisprudential Center, 2015. Accessed 2019. (in Persian)
Babaei, Iraj. “Theoretical Foundations of the Law and Economics Approach.” Legal and Political Research 23 (2007): 13–60. (in Persian)
Basiri Gonabadi, Ali Akbar. “Public Enforcement of Punishment in Jurisprudential Sources and Iran’s Criminal Regulations.” Fars News Agency, 2008. (in Persian)
Borujerdi, Seyyed Hossein Tabatabaei. A Commentary on Kifayat al-Usul. Qom: Ansarian Institute, 1991. (in Arabic)
Bourdeau, Michel. “Auguste Comte.” The Stanford Encyclopedia of Philosophy, Summer 2018 Edition, edited by Edward N. Zalta. (in English)
Davies, Gareth T. “The Relationship between Empirical Legal Studies and Doctrinal Legal Research.” Erasmus Law Review 13, no. 2 (2020): 1–33. (in English)
Eisenberg, Theodore. “The Origins, Nature, and Promise of Empirical Legal Studies and a Response to Concerns.” Cornell Law Faculty Publications, Paper 974 (2011). (in English)
Hassani, Seyyed Hamid Reza. An Introduction to the Ijtihadi Paradigm of Practical Knowledge. Qom: Research Institute of Seminary and University, 2018. (in Persian)
Homan, Matthew. “Continental Rationalism.” Internet Encyclopedia of Philosophy (2019). (in English)
Isfahani (Fazel Hindi), Mohammad ibn Hasan. Kashf al-Litham wa al-Ibham ‘an Qawa‘id al-Ahkam. Qom: Islamic Publications Office, 1995. (in Arabic)
Khomeini, Ruhollah Mousavi. Tahrir al-Wasila. Qom: Dar al-‘Ilm, n.d. (in Arabic)
Khurasani, Mohammad Kazem. Kifayat al-Usul. Qom: Al al-Bayt Institute for Heritage Revival, 1989. (in Arabic)
Markie, Peter. “Rationalism vs. Empiricism.” The Stanford Encyclopedia of Philosophy, Fall 2017 Edition, edited by Edward N. Zalta. (in English)
Mill, John Stuart. Auguste Comte and Positivism. London, 1865. (in English)
The Holy Qur’an. (in Persian)
Weisberg, Robert. “Empirical Criminal Law Scholarship and the Shift to Institutions.” Stanford Law Review 65 (2013): 1400–1371. (in English)
Journal of Criminal Law and Criminology
Volume 9, Issue 18
February 2022
Pages 199-226