Identification and Status of Customary Punishments in Iranian Law with Reference to French Law

Abstract

Customary punishments have always existed at the intersection between formal legislation and socially accepted behaviors. In criminal law, the principle of legality of crimes and punishments has restricted the role of custom; however, in some legal systems, custom continues to be invoked as a supplementary or interpretative source. The authors of this article, using a descriptive–analytical method and library-based tools to explain a comparative analysis of Iranian and French law regarding customary punishments, reached the following conclusions: First, in Iran, instances of customary punishments include governmental ta’zir (discretionary punishments) and supplementary punishments, which are applied by judges with consideration of custom and social conditions. In France, instances of customary punishments consist of the limited use of custom in the interpretation of laws and the determination of certain mitigating or aggravating circumstances in specific cases. Second, the common aspects of Iranian and French law in the field of customary punishments include efforts to limit the role of custom in the determination of punishments and emphasis on the principle of legality of crimes and punishments. Third, the differences between Iranian and French law include the influence of jurisprudential foundations in Iran and secular foundations in France, the more significant role of custom in ta’zir and governmental regulations in Iran, and the greater flexibility of the Iranian system in response to social conditions in contrast to the greater predictability and judicial security of the French system.