A Reflection on the Structure of Criminal Legislation in Imami Jurisprudence and the Legal System of the Islamic Republic of Iran

Sadati, Seyed Mohamad Mahdi

doi:10.22034/jclc.2026.2072929.1258

A Reflection on the Structure of Criminal Legislation in Imami Jurisprudence and the Legal System of the Islamic Republic of Iran

Document Type : Original Article

Author

seyed mohamad mahdi sadati

Assistant Professor of Criminal Law and Criminology, Faculty of Law and Political Science, Shiraz University, Shiraz, Iran

10.22034/jclc.2026.2072929.1258

Abstract

The legal system of the Islamic Republic of Iran rests on two foundations: divine legitimacy and popular acceptability, with the theory of Velayat-e Faqih (Guardianship of the Jurist) constituting the basis of its divine legitimacy. However, the absence of a sustained historical experience of Shi‘i governance over many centuries, together with the novel character of a substantial part of contemporary criminal-law issues, has meant that contemporary Islamic criminal fiqh (jurisprudence) lacks sufficient coherence. At the institutional level, the structure of criminal legislation in Iran remains influenced by the model of ‘urfi (non-Shar‘i) legislation inherited from the Constitutional era, and no systematic mechanism has been devised for continuous ijtihad in the processes of criminalization and penalization. In the long term, this situation carries the risk of the gradual predominance of non-Shar‘i criminal legislation and its departure from Islamic foundations.
Using a descriptive-analytical method and drawing on theoretical studies, the semantic implications of Qur’anic concepts, the Sunnah, the views of Imami jurists (the Twelver Shi‘i school), the interpretive opinions of the Guardian Council, and the prevailing practice of criminal legislation, this article seeks to answer the following question: to what extent is the structure of criminal legislation in the legal system of the Islamic Republic of Iran consistent with the foundations of Imami fiqh and the requirements of the political theory of Velayat-e Faqih, and what structural deficiencies and contradictions have caused its deviation from Islamic principles and the Constitution?The findings show that, in practice, criminal legislation is confronted with serious institutional and conceptual contradictions. The principal contribution of this study lies in expanding the Qur’anic concept of qada’ (judicial authority) and demonstrating that criminal legislation falls within its scope and is inherently juristic-governmental in nature. The analysis also highlights the role of the Guardian Council and the practical deadlock of the Islamic Consultative Assembly in the field of criminal legislation. The article concludes that the continuation of the current structure is incompatible both with the jurisprudential foundations of Imami fiqh and with the requirements of Velayat-e Faqih. A fundamental revision of the institutional design and the structure of criminal legislation, based on collective, transparent, and accountable ijtihad, is therefore necessary in order to preserve religious legitimacy, ensure the effectiveness of criminal law, and prevent the gradual metamorphosis of the Islamic system.

Keywords

Legislative Deadlock

Criminal Legislation

&‌‌lsquo

Urfi (Secular/Non-Shar&‌‌lsquo

i) Legislation

Islamic Criminal Fiqh

Institutional Design

Judicial Bill.&‌‌emsp

Subjects

Islamic Criminal Law

1. Ajdani, Lotfollah (2006). The Ulama and the Iranian Constitutional Revolution. Tehran: Akhavan Publishing. (in Persian)

2. Aghababaei Taghanaki,A. , Mousavi Mojab,S. D. and Habibzadeh,M. J. (2025). Customization of the law in Iran's criminal system: reasons, effects, consequences. (e728691). Research and development in criminal law and criminology. Doi: 10.22034/jclc.2025.2058826.1187 (in Persian)

3. Abolhamd, Abdolhamid (2004). Iranian Administrative Law. Tehran: Toos Publications. (in Persian)

4. Parvin, Khairollah; & Darvish Motavali, Meysam (2013). The Observant Sources of Sharia in the Legislative System of the Islamic Republic of Iran. Islamic Government, 18(1), 115–136. (in Persian)

5. Torkaman, Mohammad (1983). Treatises, Declarations, and Correspondence of the Martyred Sheikh Fazlollah Nouri. Tehran: Rasa Cultural Services Institute. (in Persian)

6. Tavazoni-Zadeh, Abbas (2006). A Reflection on the Impact of the Theory of Sovereign Acts and Administrative Acts on the Legal Regime Governing State Organizations and Administrative Reform Programs in Iran. Majles and Strategy, No. 51, 57–100. (in Persian)

7. Hattab, Abu Abdullah (1992). Mawahib al-Jalil Sharh Khalil, Vol. 6. Beirut: Dar al-Fikr. (in Persian)

8. Khomeini, Ruhollah (1999). Sahifeh-ye Noor, Vol. 21. Tehran: Organization for Printing and Publishing of the Ministry of Culture and Islamic Guidance. (in Persian)

9. Rasekh, Mohammad (2005). The Theoretical Foundations of Reforming the Legislative System. Tehran: Research Center of the Islamic Consultative Assembly. (in Persian)

10. Rahmani, Majid; Emami, Mohammad; & Moghaddam Fard, Mohammad (2025). Jurisdictional Overlap in Legislative Functions within Iran’s Legal System. New Research in Administrative Law, 7(22), 37–55. (in Persian)

11. Razavi Fard, Behzad (2012). The Effectiveness and Ineffectiveness of Imprisonment in International Criminal Law. Criminal Law Research, 1(1), 181–203. (in Persian)

12. Zarei, Mohammad Hossein (2004). Iran’s Legislative System and the Position of the Expediency Discernment Council. Rahbord (Strategy), No. 34, 320–333. (in Persian)

13. Sadati, S. M. M. , Sadeghi, M. H. and Gholamian Zali, S. (2019). A Reflection on Extending the Implications and Examples of Hudud in the Islamic Penal Code of 2013. Fiqh and Usul, 51(3), 71-94.

doi: 10.22067/jfu.v51i3.67060. (in Persian)

14. Sanglaji, Mohammad (2005). Judiciary in Islam. Tehran: University of Tehran Press. (in Persian)

15. Tabatabai, Seyyed Mohammad Hossein (2002). Al-Mizan Exegesis of the Qur’an, trans. Seyyed Mohammad Baqer Mousavi Hamedani. Tehran: Islamic Publications Office, 15th ed. (in Persian)

16. Abbasi, Bijan; & Sheidaei, Navid (2023). The Status of the Supreme Council for Economic Coordination of the Heads of Powers and Its Resolutions in the Constitutional Legal Order. Quarterly Journal of Legal Research, 26(103), 181–206. (in Persian)

17. Gholami,H. (2025). "This" Is Not a Law: A Legal-Philosophical Reflection on the Chastity and Hijab Resolution. (e720363). Research and development in criminal law and criminology, 1(2). 10.22034/jclc.2025.2051421.1154 (in Persian)

18. Katouzian, Nasser (1998). Philosophy of Law, Vol. 1. Tehran: Enteshar Joint Stock Company. (in Persian)

19. Kaabi, Abbas (2015). Foundations of the Constitutional Law of the Islamic Republic of Iran. Tehran: Pejvak-e Edalat. (in Persian)

20. Masjedsaraei, Hamid; & Kabiri, Soheil (2015). The Limits of the Ruler’s Authority in Islamic Criminal Law. Tehran: Majd Scientific and Cultural Association. (in Persian)

21. Koohi Esfahani, Kazem (2012). The Legislative Competence of the Islamic Consultative Assembly: Absolute or Restricted? Public Law Studies, 1(2), 97–122. (in Persian)

22. Markaz Malmiri, Ahmad; & Mahdizadeh, Mehdi (2015). Fragmented Legislation in Iran’s Legislative System. Public Law Research, No. 47, 157–184. (in Persian)

23. Motahari, Morteza (1983). Islam and the Requirements of the Time, 2nd ed. Tehran: Sadra Publications. (in Persian)

24. Mowassaq, Mohammad Reza (2007). The Parliament: Its Existential Philosophy and Legislative Functions. Pegah-e Howzeh Magazine, No. 219. (in Persian)

25. Mehrpour, Hossein (1989). The History of Ta’zirat: A Study of the Legislative Process of Ta’zirat in the Islamic Republic of Iran. Iranian Bar Association Journal, Nos. 148–149, 9–68. (in Persian)

26. Mirzaei, Eghbalali (1999). Law and Its Temporal Validity with Emphasis on the Concept and Characteristics of Temporary Law. Judiciary Legal Journal, 78(85), 145–171. (in Persian)

27. Mirmohammadsadeghi, Hossein (2009). Crimes against Persons. Tehran: Mizan Publishing. (in Persian)

28. Naeini, Mohammad Hossein (1999). Tanbih al-Ummah wa Tanzih al-Millah. Tehran: Enteshar Joint Stock Company. (in Persian)

29. Hadavi Tehrani, Mehdi; & Mo’tazedi, Majid (2010). An Examination of the Qur’anic Approach to Punishment. Journal of Qur’anic Sciences and Knowledge, 2(7), 65–90. (in Persian)

30. Hamilton, Malcolm (2008). The Sociology of Religion, trans. Mohsen Salasi. Tehran: Tebyan Cultural Publishing Institute. (in Persian)

31. Ibn Manzur, Abu al-Fadl Jamal al-Din Muhammad ibn Mukarram (c. 1376 AH). Lisan al-‘Arab, Vol. 15. Beirut: Dar Sadir. (in Arabic)

32. Ibn Manzur, Abu al-Fadl Jamal al-Din Muhammad ibn Mukarram (c. 1376 AH). The Tongue of the Arabs, Vol. 15. Beirut: Dar Sadir. (in Arabic)

33. Balihi, Salih ibn Ibrahim (c. 1410 AH). The Pure Spring in Understanding Legal Proof: A Marginal Commentary on “The Provision of the Seeker”, Vol. 3. N.p.: Jeddah Library. (in Arabic)

34. Jibli al-‘Amili (Shahid al-Thani), Zayn al-Din ibn ‘Ali (c. 1413 AH). The Paths of Understanding toward Refining the Laws of Islam, Vol. 4. Qom: Islamic Knowledge Institute. (in Arabic)

35. Khomeini, Ruhollah (2006). The Refinement of the Means (A Comprehensive Manual of Islamic Jurisprudence), Vol. 2. Tehran: Institute for the Compilation and Publication of Imam Khomeini’s Works. (in Arabic)

36. Khomeini, Ruhollah (c. 1410 AH). The Book of Sale. Qom: Isma‘ilian Press. (in Arabic)

37. Zabidi, Muhammad ibn Muhammad (c. 1385 AH). The Crown of the Bride: A Commentary on the Lexicon, Vol. 10. Beirut: Dar al-Hidayah. (in Arabic)

38. Tabataba’i Yazdi, Muhammad Kazim (c. 1417 AH). The Firmest Bond, Vol. 3. Qom: Islamic Publishing Institute. (in Arabic)

39. Tarabulsi al-Hanafi, ‘Ali ibn Khalil (c. 1393 AH). The Judge’s Guide in Disputed Judicial Matters between Litigants. Cairo: Mustafa al-Babi al-Halabi & Sons. (in Arabic)

40. ‘Amili, Sayyed Jawad ibn Muhammad al-Husayni (c. 1419 AH). The Key to Dignity: A Commentary on the Juridical Maxims of al-‘Allamah, Vol. 10. Qom: Islamic Publications Office (affiliated with the Qom Seminary Teachers’ Society). (in Arabic)

41. ‘Amili, Sayyed Muhammad (c. 1413 AH). The Ultimate Objective in the Commentary on the Abridged “Laws of Islam”, ed. Eshtehardi, ‘Araqi, & Yazdi. Qom: Islamic Publishing Institute. (in Arabic)

42. Fadil Hindi, Muhammad ibn Hasan (c. 1416 AH). Unveiling the Veil from the Principles of Legal Rulings, Vol. 2. Qom: Islamic Publishing Institute. (in Arabic)

43. Golpayegani, Mohammad Reza (c. 1413 AH). The Book of Judiciary, Vol. 1. Qom: Dar al-Qur’an al-Karim. (in Arabic)

44. Al-Mawardi, ‘Ali ibn Muhammad (1966). The Ordinances of Government. Beirut: Dar al-Fikr. (in Arabic)

45. Makki al-‘Amili (Shahid al-Awwal), Jamal al-Din (c. 1412 AH). The Legal Lessons in Imami Jurisprudence, Vol. 2. Qom: Islamic Publishing Institute. (in Arabic)

46. Najafi, Muhammad Hasan (1986). The Jewels of Jurisprudential Discourse, Vols. 40–41. Tehran: Dar al-Kutub al-Islamiyyah. (in Arabic)

47. Eng, Svein (2002), Legislative Inflation and the Quality of Law, in Wintgens, Luc, Legisprudence: A New Theoretical Approach to Legislation, Oxford: Hart Publishing, pp. 65-79.

48. Catechism of the Catholic Church; Ireland: Veritas, 1994.

49. Lacey, Nicola (2015), “Jurisprudence, history, and the institutional quality of law”, Virginia Law Review, 101 (4), pp. 919-945.

50. Dalloz encyclopédie juridique, TIV, p.11: le principe étant la permannce de la loi; il n empeche qu un text puiss etre abrogé.

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