Document Type : scientific
Authors
1
Department of Law, Hamadan Branch, Islamic Azad University, Hamadan, Iran.
2
Department of Law, Hamedan Branch, Islamic Azad University, Hamedan, Iran.
Abstract
Asignificant issue in the realm of sentencing, both in positive law and Islamic law, is the philosophical question of the "justification of punishment." Alongside the normative ethical justification of punishment, its political justification, referred to as "political legitimacy," is also considered. In criminal law, regarding the punishment of imprisonment, this question arises: by what reason and authority does the government deprive individuals of their liberty through the punishment of imprisonment, and what is the origin and source of this punishment? Therefore, the main focus of the present research is whether, regardless of the efficacy or inefficacy of imprisonment, its origin and source possess legitimacy? This article examines and answers this question using a descriptive-analytical method, drawing on library resources and references to authoritative jurisprudential sources. The result of this research is that this punishment has no divine origin, because in Islam, imprisonment and prisons do not hold a specific status and have been used as a precautionary measure without having a punitive nature. Although some jurists, citing narrations and verses regarding imprisonment, consider it legitimate and regard it as a religious punishment, from the perspective of the authors, although in contemporary society from the sociology of punishment perspective—because society has moved beyond corporal punishments and, on the other hand, Iranian society is not yet receptive to the implementation of modern punishments—the existence of this punishment in society is necessary, this punishment lacks existential legitimacy in Islam and is devoid of a divine origin and source.
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