The Foundations of Criminalization and the Scope of Discretionary Punishments

Abstract

Criminalization, or the prohibition of conduct with criminal sanctions, constitutes the most severe form of state intervention in restricting citizens’ freedoms and stands in opposition to the principle of liberty. In general, the three principles of harm, paternalism, and legal moralism are the foundational justifications that render state intervention in citizens' rights and freedoms legitimate and defensible, forming the legal bases for the criminalization of discretionary punishments (Ta’zir). In Islamic law, sins are also linked to one of the recognized interests in Islam, known as the five essential interests (Maṣāliḥ Khamsah). However, it must be noted that in Islamic legislation, the scope of sin does not entirely coincide with the scope of crime. The indeterminate nature of discretionary punishments in Islamic law and the authority granted to the Guardian Jurist (Vali-e Faqih) in defining discretionary crimes does not imply unlimited power. Rather, the criminalization of such offenses requires justification and considerations such as adherence to expediency and necessity. The Islamic Consultative Assembly (Majles) is also obligated to observe Islamic legal standards in this regard. This article examines the jurisprudential and legal foundations of the criminalization of discretionary punishments.