Comparative Criminal Jurisprudence

Comparative Criminal Jurisprudence

The legitimacy of contractualization of criminal law in Imamiyya jurisprudence

Document Type : Original Article

Authors
1 PhD in Criminal Law and Criminology, Allameh Tabatabaei University, Tehran, Iran
2 Assistant Professor, Shahid Motahari University, Tehran, Iran
10.22034/jccj.2026.551071.1776
Abstract
The theory of contractualization of criminal law is a strategy that is based on agreement between judge and offender. This agreement is expressed through words or actions, and as a result, prosecution or punishment is set aside at different stages of trial, before or after, or the amount of punishment is reduced at the stage of issuing sentence and its execution. Postponement of sentence, suspension of prosecution, suspension of execution of sentence are examples of contractualized criminal law in Iranian penal system that have been studied to a limited extent. Changing the criminal justice system in order to promote contractualized criminal law depends on examining the prevailing jurisprudential limitations, for this purpose, the main issue of this research is to examine the position of aforementioned solutions in Imami jurisprudence. The authors examine the question of to what extent the use of these strategies is limited in terms of limits and punishments. The findings indicate that sovereign's authority to prevent offender from confessing and accepting repentance clarifies the scope of using aforementioned strategy in hadd crimes. The sovereign's broad authority in applying punishments also indicates permissibility of implementing principle of having a position to prosecute, abandoning or reducing punishment, ordering alternative punishments to imprisonment, suspending the execution of punishment, and conditional release. A brief comparison between Imami jurisprudence and the laws leads to the conclusion that Imami jurisprudence has outlined the scope of the sovereign's authority in concluding an agreement with the offender more broadly than the Iranian penal system. Of course, the specifics governing criminal policy in Islam do not accept some common contractual criminal law solutions such as plea bargaining, and changing the criminal justice system in order to increase the aforementioned solutions will only achieve a desirable result if these solutions are used in a localized manner.
Keywords


Articles in Press, Accepted Manuscript
Available Online from 11 July 2026

  • Receive Date 04 October 2025
  • Revise Date 01 July 2026
  • Accept Date 11 July 2026
  • Publish Date 11 July 2026