نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشآموخته کارشناسی ارشد حقوق کیفری، دانشگاه شهید بهشتی، تهران، ایران
2 دانشیار دانشکده حقوق، دانشگاه شهید بهشتی، تهران، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Introduction
Despite its fundamental position in the philosophy of criminal law, the offence principle has received less independent attention compared to the harm principle, and comprehensive examinations of it are scarce in Iranian legal literature. This article aims to reinterpret and elucidate the concept and function of the offence principle as a basis for criminalisation, critically analysing the perspectives of scholars such as Feinberg, von Hirsch, and Simester, and, employing a comparative approach, examining the position of this principle in Iranian criminal law. Joel Feinberg, inspired by and critiquing Mill's ideas, proposed the "offence principle" as a complement to the harm principle. He argues that in certain cases, psychological, moral, or cultural offences, even in the absence of physical harm, can be so severe as to justify state criminal intervention.
The Offence Principle as a Basis for Criminalisation Mohammad Sabetipour
From this perspective, the offence principle seeks to clarify the boundary between individual liberty and the necessity of criminal intervention in more subtle and less tangible domains.
In Iranian criminal law, although the principles of criminalisation have not been explicitly formulated based on liberal theories, numerous instances exist in which criminal intervention has been predicated not on material harm but on a form of social or cultural "offence"—such as the criminalisation of insult, dissemination of obscenity, propaganda against sanctities, or disturbing public decency. These examples demonstrate that religious, moral, and cultural values hold a central position in Iran's criminal policy, and the sole criterion of harm is insufficient to explain them.
Method
This research has been conducted using a descriptive-analytical approach with a comparative method. In the first step, the theoretical framework of the offence principle in the philosophy of liberal criminal law was elucidated through an examination of the works of scholars such as Joel Feinberg, Andrew von Hirsch, and A.P. Simester. Subsequently, by referring to jurisprudential sources, Iranian criminal laws, and the literature on criminal policy, the position and function of this principle in Iran's legal system were assessed. The research data were collected through library-based methods and examined through conceptual and critical analysis to determine the relationship between the offence principle and the foundations of criminalisation and criminal policy in Iran.
Results and Discussion
The research findings indicate that the offence principle has received less independent theoretical attention in Iranian criminal law literature and has often been analysed in the shadow of the harm principle or moral considerations. The predominance of moralistic, security-oriented, and expansive criminal approaches has prevented this principle from becoming established as an independent basis for criminalisation. Nevertheless, the examination of certain legal instances reveals that there is potential capacity for utilising the offence principle in shaping criminal policy, particularly in the area of conduct which, although lacking direct harm, nevertheless disrupts public order, social peace, and human dignity. Furthermore, the comparative analysis undertaken in this research has succeeded in more precisely clarifying the conceptual boundary between the offence principle and the harm principle, and in elucidating the distinct functions of each in justifying criminal intervention.
Volume 18, Issue 3, Autumn 2026
Conclusion
The research findings suggest that a reinterpretation and institutionalisation of the offence principle could contribute to a more rational Iranian criminal policy and to the restriction of unjustified criminal interventions. The application of this principle alongside the harm principle, while maintaining a balance between individual liberties and public interests, would facilitate the design of more proportionate criminal responses. In this regard, a revision of certain criminal provisions, the development of theoretical discussions in legal literature, and the utilisation of liberal criteria for criminalisation could lead to enhanced efficiency of the criminal justice system and more effective prevention of offensive and harmful conduct.
کلیدواژهها [English]
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