Document Type : Original Article
Authors
1
PhD candidate in Criminal Law and Criminology, University of Qom, Qom, Iran.
2
professor in criminal law and criminology, faculty of law, Qom university, Qom, Iran.
3
Assistant professor, Criminal Law and Criminology, Faculty of law, University of Qom, Qom, Islamic Republic of Iran
10.22091/ijicl.2026.14729.1217
Abstract
This study is organized with the aim of explaining the relationship between liberty and criminalization in the two criminal law systems of Islam and the West, and seeks to examine, in a systematic manner, the fundamental question of the legitimate scope of criminal intervention in the domain of individual liberties. The central issue is under what conditions the legislator may remove human conduct from the sphere of permissibility and place it within a binding criminal rule, and to what extent such intervention must be governed by foundational principles, criteria, and constraints that limit penal authority. The findings indicate that in the Western system, liberty constitutes the primary normative foundation and the principal criterion for restricting criminalization, and principles such as legality, proportionality, and necessity play a regulatory role; whereas in the Islamic system, liberty is intertwined with duty and collective welfare (masalih naw‘iyya), and rules such as “no-harm” (la zarar) and “removal of hardship” (raf‘ al-haraj), as well as the protection of the five essentials (daruriyyat khams), determine the legitimate limits of intervention. The conclusion is that although both systems avoid penal expansionism, their normative foundations and justificatory logic differ, and this divergence is reflected at the level of criminalization criteria. Accordingly, the present study emphasizes the need to develop a measurable framework for criminal legislation and to strengthen the standing of liberty within criminal policy.
Keywords
Main Subjects
)