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Paper Information

Journal:   PRIVATE LAW STUDIES   SUMMER 2010 , Volume 40 , Number 2; Page(s) 139 To 158.
 
Paper: 

"PREVENTIVE PUNISHMENTS": THEORETICAL CHALLENGES AND PRACTICAL CONSTRAINTS

 
 
Author(s):  HOSSEINI S.M.*
 
* DEPARTMENT OF CRIMINAL LAW AND CRIMINOLOGY, FACULTY OF LAW AND POLITICAL SCIENCE, UNIVERSITY OF TEHRAN
 
Abstract: 

Making up a new category of punishments under the title of "Preventive Punishments" has been the subject of a long debate since 1368when, during the first decade of the Islamic Republic of Iran the issue of "discretionary punishment" was at stake. This was because the discretionary nature of such punishments on the hand and absence of the concept of Limitation under Shi'a jurisprudence one other hand has led to a conflict between the perpetual natures of these punishments once introduced as law and the concept of limitation. The invention of this title for punishments of certain crimes, alongside the concept of "discretionary punishments" was seen as an escape route from this above conflict and "jurisprudential" deadlock. In this short paper, we have come to the concussion that making up "Preventive Punishments" alongside the "Discretionary Punishments" does not have a basis under the Islamic jurisprudence and does not find any support from the fatva issued by the Founder of the Islamic Republic, Imam Khomeini, peace be upon him. The concept of preventive punishments not only suffers from the lack of a normative basis and legitimacy, but it also lacks the cohesion and in practice could not be distinguished from the discretionary punishments and has led to may contradictions and confusions. This unjustified initiative to a great deal has undermined the legislative process of the criminal justice system of Iran. Therefore, the abolition of the concept of preventive punishments as a counterpart for discretionary punishments is recommended. In fact the concept of discretionary punishments has the potential to accommodate any social and legal consideration, including the issue of limitation without the need for making up a new category of punishments and we can stay within the framework of law.

 
Keyword(s): PREVENTIVE PUNISHMENTS, DISCRETIONARY PUNISHMENTS, THEORETICAL CHALLENGES, PRACTICAL CONSTRAINTS, LEGISLATIVE SAGACITY
 
 
References: 
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Citations: 
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+ Click to Cite.
APA: Copy

HOSSEINI, S. (2010). "PREVENTIVE PUNISHMENTS": THEORETICAL CHALLENGES AND PRACTICAL CONSTRAINTS. PRIVATE LAW STUDIES, 40(2), 139-158. https://www.sid.ir/en/journal/ViewPaper.aspx?id=191479



Vancouver: Copy

HOSSEINI S.M.. "PREVENTIVE PUNISHMENTS": THEORETICAL CHALLENGES AND PRACTICAL CONSTRAINTS. PRIVATE LAW STUDIES. 2010 [cited 2021July30];40(2):139-158. Available from: https://www.sid.ir/en/journal/ViewPaper.aspx?id=191479



IEEE: Copy

HOSSEINI, S., 2010. "PREVENTIVE PUNISHMENTS": THEORETICAL CHALLENGES AND PRACTICAL CONSTRAINTS. PRIVATE LAW STUDIES, [online] 40(2), pp.139-158. Available: https://www.sid.ir/en/journal/ViewPaper.aspx?id=191479.



 
 
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