The Role of the Principle of Minimality in Criminal Law within Criminal Policy | ||
| فصلنامه پژوهش حقوق کیفری | ||
| Volume 13, Issue 48, October 2024, Pages 201-236 PDF (1.96 M) | ||
| Document Type: Research Paper | ||
| DOI: 10.22054/jclr.2025.82655.2712 | ||
| Authors | ||
| ali movahedi1; Ali Najafi Tavana* 2; Mohammad Ashouri3; parviz Zokaiyan4 | ||
| 1PhD student in Criminal Law and Criminology, Faculty of Law and Human Sciences, Chalous Branch, Islamic Azad University, Chalous, Iran | ||
| 2Assistant Professor of the Department of Criminal Law and Criminology, Tehran Central Branch, Islamic Azad University, Tehran, Iran | ||
| 3Full Professor of the Department of Criminal Law and Criminology, Science and Research Unit, Islamic Azad University, Tehran, Iran | ||
| 4Assistant Professor of the Department of Jurisprudence and Fundamentals of Islamic Law, Chalous Branch, Islamic Azad University, Chalous, Iran. | ||
| Abstract | ||
| Today, criminal law is often viewed as the primary solution for preventing and addressing many social disorders and deviant or antisocial behaviors. In Iran, following the Islamic Revolution, there has been a significant increase in the criminalization and punishment of various activities. The extensive volume of criminal laws, the nature and scope of criminal responses, and the growing prison population indicate that criminal law has become the default response for legislators in many situations. This approach is often referred to as maximal criminalization or security-oriented criminalization. In contrast to this perspective, the notion of minimal criminalization has gained traction in recent years. According to this view, criminal law should not be excessively broad, nor should it criminalize behaviors that are not essential for achieving the state’s binding goals. If other tools and measures can more effectively achieve these goals, criminalization or punishment should not be necessary. Thus, criminal law should be seen as a last resort, employed only when other measures are inadequate. The principle of minimal criminalization, alongside other fundamental principles such as the principle of innocence, necessity, and transparency, has been proposed as a constitutional principle. However, this principle has received limited attention from legislators, making its position in criminal policy highly significant. The concept of criminal policy—often associated with social control—is categorized into four models based on the relationship between crime, deviance, state response, and society: crime-state response, crime-social response, deviance-government response, and deviance-social response. These models give rise to various response patterns, including the state pattern, social pattern, integrated pattern, and zero pattern. Within the state pattern, two sub-patterns emerge: liberal society and the security-oriented government, each responding to crime or deviance in distinct ways based on their ideological foundations. Criminal policy based on the minimal principle advocates for the reduction or abolition of criminal law, replacing it with non-criminal alternatives. This approach favors removing deviant behaviors from the scope of criminal law and avoiding criminal responses for minor offenses. Measures like dejudicialization, decriminalization, and depenalization are central to this perspective. Governments, in turn, can choose between two criminal policies: a minimalist approach to criminalization and punishment, which prioritizes harm reduction, and a maximalist approach based on legal patriarchy, which focuses on strict government control over crime prevention. The Iranian penal system exemplifies the security-oriented government model, which is characterized by broad state intervention in both individual and social life. In this model, the government has the authority to intervene in various aspects of society, often leading to extensive criminalization across all spheres of human interaction. Since the Islamic Revolution, Iranian legislators have criminalized a wide array of behaviors, contributing to the inflation of criminal laws and increasing state involvement in the private lives of individuals. This view is reinforced by institutions such as the Council for Expediency of the System, the Executive Branch, the Assembly of Experts, and the Guardian Council, which expand the scope of criminalization. In contrast, the liberal model limits the scope of criminal law to behaviors that directly harm others and applies minimal intervention, avoiding state intrusion into individuals’ private lives. This model does not criminalize minor deviations from social norms, and it prioritizes the protection of personal privacy. Over the past two decades, as the prison population has increased and criminal cases have multiplied, the Iranian criminal justice system has begun to shift toward a more minimalist approach in criminalization and punishment. The primary outcomes of minimal criminal policy include the use of non-criminal responses before resorting to criminal procedures, as well as decriminalization and depenalization. This principle suggests that punishment should only be applied when other measures have proven ineffective. Additionally, if criminal processes are deemed necessary, a minimal criminal response should be adopted. The use of more severe punishments, whether in terms of their nature or severity, contradicts the principle of minimal criminal law. This article uses a descriptive-analytical method (library study) to present a criminal policy grounded in the minimal principle and compares it with rival policies to illustrate the evolving perspective on legal punishment and judicial sentencing. It explores the permissible scope of criminal intervention and social control, both criminal and non-criminal, as well as repressive and non-repressive methods, and examines the patterns governing them. | ||
| Keywords | ||
| Maximum criminalization; minimum criminalization; principle of minimal criminal law; criminal policy; criminal law | ||
| References | ||
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In Persian
ب. انگلیسی
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