Comparative Criminal Jurisprudence

Comparative Criminal Jurisprudence

A Study on Anesthetizing the Organs in Performing Physical Punishments

Document Type : Original Article

Author
Associate Professor, Department of Jurisprudence and Fundamentals of Islamic Law, Faculty of Literature and Humanities, Central Tehran Branch, Islamic Azad University, Tehran, Iran. (Corresponding Author
10.22034/jccj.2025.357417.1082
Abstract
The exploration of the reason for punishment can be examined in two areas: infrastructure (fundamentals) and achievements and consequences (objectives of punishment). In imposing any punishment, attention should be paid to its effectiveness in eliminating this abnormal characteristic of the offender and restoring the offender's competence, because the goals of punishment are to restore the offender's conscience, establish public order, implement criminal justice, and rehabilitate the offender. In view of these objectives, the execution of Hadd (except for Theft and Moharebeh) is accompanied by torture and suffering to a reasonable extent, and in the case of apostasy, the choice of painful punishment is left to the ruler. In the execution of the Hadd for Moharebeh and Theft, the legislator pursues goals other than inflicting pain and suffering, which are the prevention of repetition of the crime and a lesson for others, so the judge can execute the punishment with insensitivity. Due to the unity of the conditions, the implementation of the Ta’zir punishment is like the Hadd punishment. In retribution, similarity in the amount of the crime and in the tolerance of pain to the usual amount is necessary, and it is not necessary to observe uniformity in other characteristics of the crime, because firstly, the amount of pain cannot be measured; secondly, the threshold of pain tolerance in humans is different; thirdly, retribution of an unhealthy limb against a healthy one is legitimate; fourthly, in cases where retribution increases the crime or leads to the death, it is excluded. In Article 444 of the new Islamic Penal Code, the insensitivity of the offender is declared to be a victim’s rights.
Keywords

Volume 4, Issue 2
Spring 2024
Pages 173-187

  • Receive Date 31 January 2024
  • Revise Date 17 April 2024
  • Accept Date 21 April 2024
  • Publish Date 21 June 2024