The Dual Nature of Criminal Justice in the Islamic Penal Code: Confrontation and Interaction Between Restorative and Non-Restorative Approaches in Hudud, Qisas, and Diyah Crimes

Abstract

Criminal justice in contemporary legal systems is generally conceptualized through two major paradigms: the punitive (non-restorative) model and the restorative model. The former emphasizes retribution, deterrence, and the preservation of public order, whereas the latter focuses on compensation for harm, restoration of damaged relationships, and the active participation of both victim and offender in resolving the consequences of crime. The Islamic Penal Code of Iran, particularly in the domains of hudud, qisas, and diyah crimes, embodies a structure that is commonly associated with severe and corporal punishments; however, at deeper normative and functional levels, it contains mechanisms consistent with the logic of restorative justice. The central problem of this study is to clarify the dual nature of criminal justice within this law and to analyze how restorative and non-restorative approaches both confront and interact across the three legal categories of hudud, qisas, and diyah. Specifically, the research examines whether these areas merely represent manifestations of retributive justice or whether they reflect a hybrid model of criminal justice. The research adopts a descriptive–analytical methodology based on documentary analysis, with data collected from Islamic jurisprudential sources, criminal law doctrine, and provisions of the Islamic Penal Code, and analyzed within the theoretical framework of restorative justice. The findings indicate that hudud offenses, more than other categories, are dominated by a non-restorative logic grounded in the concept of divine rights (ḥaqq Allāh), although institutions such as repentance and the suspension of hudud punishments under specific conditions create limited restorative openings. In contrast, qisas and particularly diyah, due to the central role of the victim or the victim’s heirs, the possibility of reconciliation, pardon, sentence conversion, and financial compensation, demonstrate substantial compatibility with restorative justice indicators. Consequently, the Islamic Penal Code cannot be characterized as a purely retributive system; rather, it represents an integrated or hybrid model of criminal justice. Accordingly, strengthening criminal mediation mechanisms, expanding reconciliation and pardon institutions throughout judicial proceedings, and adopting a restrictive and restoration-oriented interpretation of provisions governing the suspension or termination of punishment are recommended in order to enhance the coherence of this hybrid model and improve the effectiveness of Islamic criminal policy.