Foundations of Penal Orientation and Its Manifestations in the Iranian Criminal Justice System

Abstract

Throughout the history of criminal law, the criminal policies of various societies have adopted different approaches in response to criminal phenomena. Each of these approaches has emerged from specific factors and circumstances that have prevailed over societies at different times, and they are rooted in theoretical foundations that may lean toward either harshness or leniency in the treatment of offenders. Broadly speaking, these approaches can be categorized into three models: punitive, clinical, and social support. In the model referred to as the punitive model, the central focus is on punishing the offender who has knowingly and intelligently chosen the path of criminal conduct. Thus, the punitive model, with its emphasis on retribution, distinguishes itself from the other two models. The punitive model holds particular importance due to its earlier emergence and the fact that it has been the preferred model of criminal policy for numerous reasons. The revival of this model and the regression from the other two models in many societies confirm its enduring significance. In the context of the Iranian criminal justice system as well, despite the official adoption of a de-penalization approach, there are still instances where policies are explicitly punitive in nature. Given the importance of this issue, the present article adopts a descriptive-analytical and library-based method to examine the theoretical foundations of penal orientation and its practical manifestations in the Iranian criminal justice system. The findings indicate that the theoretical foundations of penal orientation fall into two broad categories: deontological theories, which emphasize the moral function of punishment, and utilitarian theories, which stress the benefits of enforcing punishment. Accordingly, the foundations of penal orientation are shaped by at least three major theories: retributivism, deterrence, and incapacitation. The first theory stems from deontological thought, while the latter two are rooted in utilitarian reasoning. In Iran’s criminal justice system, evidence of penal orientation can be observed in several legal enactments, such as the Law on the Protection of Promoters of Virtue and Preventers of Vice (2015), the Plan for Intensifying the Fight Against Violent Crimes (2011), the Law on Combating the Financing of Terrorism (2015), the Law on the Punishment of Individuals Engaging in Unauthorized Audio-Visual Activities (2007), and the Islamic Penal Code (2013).