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
Abstract
This study is organized to explain the relationship between liberty and criminalization in the twocriminal law systems of Islam and the West, and seeks to examine, in a systematic manner, thefundamental question of the legitimate scope of criminal intervention in the domain of individualliberties. The central issue is under what conditions the legislator may remove human conductfrom the sphere of permissibility and place it within a binding criminal rule, and to what extentsuch intervention must be governed by foundational principles, criteria, and constraints that limitpenal authority. The findings indicate that in the Western system, liberty constitutes the primarynormative foundation and the principal criterion for restricting criminalization, and principlessuch as legality, proportionality, and necessity play a regulatory role; whereas in the Islamicsystem, liberty is intertwined with duty and collective welfare (masalih naw‘iyya), and rulessuch as “no-harm” (la zarar) and “removal of hardship” (raf‘ al-haraj), as well as the protectionof the five essentials (daruriyyat khams), determine the legitimate limits of intervention. Theconclusion is that although both systems avoid penal expansionism, their normative foundationsand justificatory logic differ, and this divergence is reflected in the level of criminalizationcriteria. Accordingly, the present study emphasizes the need to develop a measurable frameworkfor criminal legislation and to strengthen the standing of liberty within criminal policy.
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