Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
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Vol.39 N° 69
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Vol. 39, Nº 69 (Julio - Diciembre) 2021, 273-295
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Background of Achieving a Realistic
Legislative Criminal Policy in Iranian
Penal Laws
DOI: https://doi.org/10.46398/cuestpol.3969.16
Ahmad Reza Vanaki
*
Karim Salehi
**
Maryam Naghdi Dourabati
***
Abstract
For a criminal policy, in the broadest sense, to be successful
and compatible with a realistic view of the criminal phenomenon
in the eld of pragmatism judgment and to achieve its objectives,
it needs a background which, in its absence, not only laws based
on realistic criminal policy fail, but their application in such
a situation will cause a double damage to society: legal and
moral. Apply methods of social prevention in the economic and
cultural dimension, observing the principle of minimum criminal law, the
mandatory anticipation of the presentation of a personality prole in all
crimes committed and nally, the establishment of a care administration to
comply with the implementation of realistic laws in the best possible way.
It is concluded that this path that combines criminal policy and pragmatic
legal realism is one of the desired areas in question in the eld of criminal
investigation in Iran. This research, which is conducted using the content
analysis method, identies the background for the implementation and
enforcement of a realistic legislative criminal policy in Iran to remove
obstacles to this advanced scientic knowledge.
Keywords: realistic penal policy; crime prevention; personality prole;
principle of individualization; principle of minimum criminal
law.
* PhD Student, Department of Law, Shahrekord Branch, Islamic Azad University, Shahrekord, Iran.
ORCID ID: https://orcid.org/0000-0002-2872-1753. Email: ahmadvanaki@yahoo.com
** Assistant Professor, Department of Law, Shahrekord Branch, Islamic Azad University, Shahrekord,
Iran. ORCID ID: https://orcid.org/0000-0002-5297-4152. Email: dadvarz@gmail.com
*** Assistant Professor, Department of Law, Shahrekord Branch, Islamic Azad University, Shahrekord,
Iran. ORCID ID: https://orcid.org/0000-0002-3673-1863. Email: Naghdi707@gmail.com
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Ahmad Reza Vanaki, Karim Salehi y Maryam Naghdi Dourabati
Background of Achieving a Realistic Legislative Criminal Policy in Iranian Penal Laws
Antecedentes de la consecución de una política penal
legislativa realista en las leyes penales iraníes
Resumen
Para que una política criminal, en el sentido más amplio, tenga éxito y
sea compatible con una visión realista del fenómeno criminal en el ámbito
del juicio de pragmatismo y logre sus objetivos, necesita un trasfondo
que, en su ausencia, no solo leyes basadas en una política criminal realista
fracasan, pero su aplicación en tal situación provocará un doble daño
a la sociedad: jurídico y moral. Aplicar métodos de prevención social en
la dimensión económica y cultural, observando el principio de ley penal
mínima, la preceptiva anticipación de la presentación de un perl de
personalidad en todos los delitos cometidos y nalmente, el establecimiento
de una administración de atención para cumplir con la implementación de
leyes realistas en la mejor forma posible. Se concluye que este camino que
conjuga política criminal y realismo jurídico pragmático es una de las áreas
deseadas en cuestión en el ámbito de investigación penal en Irán. En esta
investigación, que se realiza mediante el método de análisis de contenido,
se identica los antecedentes para la implementación y aplicación de una
política penal legislativa realista en Irán con el n de eliminar los obstáculos
a este conocimiento cientíco avanzado.
Palabras clave: política penal realista; prevención del delito; perl de
personalidad; principio de individualización; principio
de derecho penal mínimo.
Introduction
There are basically two views on the criminal phenomenon and how to
react to it. The rst view is the abstract legal view, which is also considered
idealism in philosophical discussions. In an idealistic view, crimes are
considered in the school of natural law or innate law school. In the school
of innate law, on which part of Iran’s criminal policy is based, the ideal laws
or manifested in the criminal arsenal to build an ideal society. These laws
are transcendental and have come to bring happiness and bliss to all human
beings. In the abstract legal perspective, preventions appear as criminal
and in the form of general and specic prevention, and in some cases
have permanent exclusion function through extermination, and in some
cases, punishments try to control and prevent delinquency occurrence by
disabling criminals.
But in the present article, the criminal phenomenon in realistic criminal
policy is examined in terms of the background and requirements for
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achieving results. Criminal policy in the broadest sense includes all the
stages aecting the criminal phenomenon from the pre-criminal stages,
investigating the causes, and preventing them, whether state-based or
social prevention, quality of reactions, type of punishments and security
measures required to execute punishment and even pre-execution stages.
The matter of fact is that in present-day Iran, we are facing trac in the
cases of the prosecutor’s oce and criminal courts and unbridled criminal
inations at the social level. Social prevention in the economic-cultural
dimensions is not well illustrated and implemented.
In the eld of economics, lack of fairy distribution of Labor and wealth
has led the society towards an anomic society; and in the elds of culture,
lack of growth-oriented and growth-centered programs, in the long run,
has left its problems and diculties. In the elds of legislative criminal
policy, the legislature has followed a duel heterogenous policy, so that while
in one part of the law it uses an abstract legal perspective and criminal
policy in a narrow sense, it has a legislated with a realistic perspective, in
another signicant part of a criminal policy in the broad sense. But in this
area, despite the application of the most advanced paradigms in criminal
law in the eld of a judicial and executive the criminal policy, it has faced
systematic ineciencies. What is certain is that it is not enough just to
legislate and adopt advanced laws of derived from criminal policy data in
line with modern science, but the necessary grounds must also be provided.
Applying community-based and status-based prevention,
decriminalization, and the judgement as much as possible, establishing an
institution for diagnosis in the company of courts, establishing a probation
oce, employing criminological the judges and specializing in judging, in-
service training of former hired judges and such is one of the cases that
prepares the ground for the implementation and operation of realistic
criminal policy. The question is whether the criminal law, which originated
from a realistic criminal policy, has been well received by the judicial
authorities. Has realism led to pragmatism, or are we dealing with a series
of beautiful laws that are on the on the pages of law booklets? And what
item can the pragmatic solution of realistic laws depend on?
In the present article, and attempt will be made to explore Iran’s criminal
policy in the eld of realistic law and pragmatic barriers in order to oer
suggestions for merging realism with pragmatism.
1. Criminal policy and the concept of realism
In a historical course, criminal policy has started from its narrow
concept and meaning and has reached its peak with progress in the broad
concept based on realism towards the criminal phenomenon. for the rst
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Background of Achieving a Realistic Legislative Criminal Policy in Iranian Penal Laws
time in 1803, the German professor Feuerbach uses the term criminal
policy in his book on criminal law, and this is the rst time that the
term criminal policy has entered the real of criminal law. According to
Feuerbach, criminal policy includes a set of repressive methods through
which the government responds to Crime by resorting to them (Travis III,
2011). A narrow interpretation of criminal policy, which is also known as
“Criminal policy”; It should be note that the only prevention considered
in this denition is criminal prevention, which with its intimidating aspect
in general and particular is eective on the oender and the surrounding
community (Ristroph, 2020).
In France (in 1905), Mr. Cauchy, in his treatise “The science of a prisons’
Administration and laws” distinguishing criminal policy from pure science,
which he considered to include criminology, sociology, and criminal
anthropology, sought to place criminal policy among other disciplines of
criminal science. However, in his opinion, criminal policy means “an applied
science whose goal is practical success in the rational eective organization
of the ght against crime” (Travis III, 2011: 58).
According to this view of criminal policy and crime, which is a legal
concept, deviation (deviance) is also considered a social concept. This viwe
does not rely solely on reression and intimidation through punishment, but
also includes prevention data, which, of course, includes social prevention
in the form of social, cultural, moral systems and so on (Shaygan and
Rahmani Klakuob, 2019).
With the above descriptions, it can be said that criminal policy is a
science that, based on scientic and philosophical data and approaches,
and taking into account historical conditions and facts, seeks appropriate
response to the criminal phenomenon through criminal and preventive
measures, solving the resulting problems as well as establishing security
and normative calm in the criminal atmosphere of society. The occurrence
crime and social deviation at all times and places are considered perfectly
normal law and following the realities of human societies, which increasingly
reects the need for a realistic reaction to this phenomenon. Undoubtedly,
resorting to an idealistic and slogan-based movement in dealing with a
criminal phenomenon that has little to do with the facts and the law, is
doomed to ineciency and Failure from the very beginning.
2. Prevent one dimension of realistic politics with a background
function
I think the highest level of realism in a criminal policy is the extent to
which that policy approaches crime prevention, the success of which lies
in knowing the members of the target community accurately. As we see
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in criminology, crime is not caused by one cause and the emergence of a
criminal phenomenon is the result of the convergence of dierent factors
and the prevalence of underlying conditions.
The occurrence of delinquency can be due to involuntary individual causes
with a subset of individuals’ physical and intrinsic factors of delinquency,
diseases and mental disorders and character and personality disorders.
Also, general factors of delinquency include social factors, geographical
environment, economy environment and political environment with their
broad sub-branches, including the factors of formation and occurrence of
criminal phenomenon (Brannigan, 2013).
What is certain is that prevention has always been simpler and less
expensive than treatment. Realistic criminal policy in this dimension
owes its facilitator approaches to the knowledge of criminology. Although
criminal prevention is also white widespread in the types of prevention, as
we will see, criminal prevention has not been very successful, and countries
with low crime rates have spent most of their budgets on prevention of
criminological origins instead of paying and spending in penal institutions.
In the following, the realism of criminal policy in this eld will be explained
by describing the types of prevention methods.
a. Criminal prevention of idealistic institution
The founders of these theories their schools and followers, who believe
in free will and conscious human choice, justify punishment on the basis of
social benet and its deterrent eects (Thorburn, 2011). For example, Jeremy
Bentham, who himself is one of the founders of the school of social benet,
says “if you suspend and stop the punishment, then the word will become
a sense of crime and social team will disappear” (Canter, 2008: 28). One
of the most important features of this type of prevention is that according
to this process, any crime committed by any criminal can be prevented in
a way, while each crime has its own tools for prevention. Another feature
is that in this type of prevention, the focus is on punishment and dealing
with the perpetrator and the role of other factors in the emergence and
occurrence of crime is ignored (Clarke, 1983). An issue that distances us
from realism towards the criminal phenomenon is the abstract legal view
of crime and delinquency, which in the present day has lost its justication
with the development of science related to criminal law and their impact on
criminal policy.
Let us now return to the fact above. Various underlying factors cause
that crime or rather criminal phenomenon; Factors that have developed a
particular personality over time, which in its dimensions include criminal
capacity and dangerous state.
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b. Prevention of juvenile delinquency and prevention of adult
delinquency
Provision of delinquency, also known as growth-based prevention or
early prevention, is done through early psychological-social interventions.
The emergence and spread of developmental prevention is often attributed
to David Farrington’s research (Farrington, 1995). Farrington’s starting
point is the theory that delinquency is part of the larger syndrome of
social behavior that begins in childhood and continues into adulthood. His
theory is also based on the premise that the early onset of delinquency,
for what Farrington calls “latent criminal potential”, indicates subsequent
criminal activities. Accordingly, and in the practice of positive criminology,
Farrington believes that the roots of the antisocial personality traits found
among professional and persistent oender can be the diagnosed and
treated in adolescence. In this regard, Farrington denes growth-oriented
or early preventions as “interactions designed to prevent the growth of the
potential for committing crime in individual” (Crawford and Evans, 2017:
23).
The purpose of this type of prevention is to identify children at risk,
deviant or delinquent children, and two intervene in their socialization
process through the family institution, teaching social skills to children
and adolescents, educating teachers and school ocials. It seeks to prepare
them for a better life by empowering them. This type of prevention has
characteristics that are the most important of being early, multi-basis, and
long-term (Vold, 1958). Attempts to connect social contexts and growth are
faced with the determination of two types of growth description methods:
one is developmental programs that cover the early years of life, and the
other is a perspective that covers a long life (Ross and Polk, 2017).
In a macro perspective, the reality of Iranian society today is facing
whispered corruption among the auent ruling classes. Exploration and
application of the theory of pressure on society (Darabi, 2018). Although
it covers some of the inferior problems, it has not provided a plausible
justication for crime of the white collars; people who have economic power,
social status, and prosperous life, but do not feel any responsibility towards
their compatriots, and despite enjoying all the amenities and power do not
turn away from committing macroeconomic crimes. If we take a brief look
at the last few decades, the disturbing lack of a growth-oriented program
with long-term intergenerational the perspective has left us with many
such problems today, problems that the application of Strict repressive
laws cannot manage. With the above description, if the community board
and special community manager did not formulate and implementing and
ecient growth-oriented program, the penal institutions will not succeed
in achieving their preventive goals by threatening and intimidating them.
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c. Social crime prevention and realistic criminal policy
Social crime prevention is the strategy that prioritizes community
members’ participation in the active prevention of criminal behavior and
other social harms and seeks the cause of crime in social structures (Homel
et al., 2015). Among the various approaches to crime prevention, the type
of social prevention done through the development of social characteristics
and all improvement of the welfare and quality of life of people in society, has
found a special place among criminological research and realistic criminal
policies. The need to study the criminal social conditions, pre-criminal
situations, joint eorts of society and its various pillars leads to a broad and
guaranteed relationship between the criminal policy of democratic societies
and social policies through social measures aimed at socializing individuals,
promoting human security and social justice (Darabi, 2018).
Therefore, considering the functional explanation of prevention as an
important tool on the path to sustainable development; and considering that
in order to deal with the criminals phenomenon must go to the underlying
factors and its social origins and through their neutralization, eliminate or at
least reduce the possibility of crime; and by understanding the fact that the
issue of criminal confrontation may be only transient and responsive in the
short-term, but permanently and in the long run perpetrators behavior will
change and will emerge in new forms of crime; and that based on scientic
facts, relying on punishment and intensifying criminal reactions, without
considering the causes and contexts of crime, is considered as a kind of
the struggle against the eects and in the word of realism it cannot have
a signicant impact, and therefore, paying attention to the pre-criminal
stages is considered as necessary and inevitable (Garcia-Yi, 2014).
Measures such as holding in formed free elections and democratic
government, equitable distribution of wealth in society, eliminating
injustice and economic inequality, providing employment opportunities
for all those who have the talent and ability to work, providing marriage
conditions and facilities for young people, poverty alleviation, developing
and strengthening of institutions such as family, school, cooperation
and interaction between various social organizations and institutions
such as the legislature, the executive and the judiciary in approving and
implementing various prevention programs and policies, including social
preventive measures (Darabi, 2018).
Let’s take a brief look at the criminal phenomenon in Iran. We will easily
nd the eect of pressure theory data in the economic cultural aspects in
a realistic and experience-based way. At present, Iranian society’s reality
is the lack of fair equal division of labor and wealth and even culture. The
bitter truth is that economic factors cover a large part of our crimes, and the
other part goes back to the cultural context of issue.
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Background of Achieving a Realistic Legislative Criminal Policy in Iranian Penal Laws
Undoubtedly, the application of social prevention realism will
signicantly reduce many current crimes and lead to security and
sustainable development.
d. Prevention in the face of realistic criminal policy
According to what was mentioned in the above paragraphs, the main
basic element of a realistic criminal policy is its approach to prevent crime
and in fact to prevent the formation of a criminal phenomenon in fact,
prevention is an eective tool to prevent the occurrence of delinquency,
to prevent the persistence in delinquency, as well as the elimination
or modication of dangerous criminal situations and is one of the main
components of a criminal policy in its broad eective meaning, which
of course without considering its, the possibility of actually claiming an
eective criminal policy would be nothing more than a false claim. However,
realistic criminal policy in general, and signicantly based on no-criminal
prevention methods, focuses entirely on “multi-institutional or inter-
institutional prevention” of crime, the scientic establishment of which,
in the group of social context empowers and attracts the involvement of a
various institutions, both formal and informal, of the social system, in order
to remove the black spot of deviation and delinquency from Society (Warf
and Grimes, 1997).
In democratic societies whose criminal policy model is libertarian,
democratically based on realism items, structural crime prevention
perspectives are predominant. In this regard, criminologists consider
crime a product of natural characteristics and inadequacies of the social
environment. They believe that the greatest possibility of prevention is
to change the perpetrators of crime, potential oenders by eliminating
deprivations, and improving their personality and training them. Besides,
prohibited behaviors in the form of crime, through determining the
enforcement guarantee, which represents the value of it in society, are
specied following the principle of legality of crime and punishment,
and any reaction such as criminal administrative, disciplinary, and so
on is considered as one of the essential prevention tools to prevent any
encroachment on the security and peace of the country and its citizens
(Darabi, 2018).
What is certain is that prevention in a realistic criminal policy has a
criminological, which has no place in the repressive law, since criminal law
is based on the principle of legality of crimes and punishments. On the other
hand, preventive criminology seeks predictive and active policies before the
formation of the criminal phenomenon. As we can see, the occurrence of
nancial crimes with economic motives in both micro and macro models
have their reasons. Undoubtedly, creating economic prosperity, ecient
employment and fair distribution of work and wealth in a society will
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signicantly reduce the crime rate of nancial and nancial-related crimes,
and in the macro dimension of meritocracy and time in hiring committed
compassionate ocials who have learned life is skills training in a growth-
oriented system, will block the way for macroeconomic crimes. Creating
an obstacle in the way of committing crimes and the diculty of achieving
results in an anomic society will undoubtedly make the path of delinquency
dicult in the condition of criminal situations. What is certain is that in
order to achieve the result and eectiveness of the criminal policy, the next
step is to recognize the realities of the target community and not neglecting
to use all the necessary methods for prevention
3. Dimensions of criminal realism
In an abstract legal perspective, a crime is a behavior that the legislature
has labelled criminal for its own reasons.
Criminal law in countries is adorned with scientic data under the
inuence of criminological data and other science related to following a
realistic criminal policy. Hence, a delinquent person is an individual with
undeniable internal conict who is inuenced by various criminal capacity
factors in his/hair personality dimensions. Determining punishments
is not a primarily for humiliation, correcting black spots formed in inner
personality in order to adapt to the surrounding society so that he will love
others like law-abiding citizens and from positive attention to others do not
exchange the feeling of being human and the resulting pleasure with any
other a stimulus.
Every human being must react to his social environment’s stimuli
in harmony with the demands of the surrounding environment and the
local community. Delinquency is the emergence of human reactions that
creates more or less obvious problems for society, and one whose behavior
is considered contrary to the interests of the social environment is called
a criminal. Hence whenever and internal or external stimulus reaches the
brain, there is a slight interruption in its balance. This interruption, in turn
causes the emergence of a series of neural currents that vary in the position
and structure of the brain. Some of its regulatory mechanisms attempt to
direct brain phenomena one after the other, which is eventually restored by
a specic nal reaction.
In cases where this balance is not established, the nal reaction is a new
stimulus that in turn causes an imbalance. Therefore, inconsistencies and
incompatibilities manifest themselves as a series of chain reactions. So, in
compensation, ability is a phenomenon that occurs in the darkness of the
relationship between the individual and the psycho-social environment. Of
course, the individual’s biological personality will aect this process and
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Background of Achieving a Realistic Legislative Criminal Policy in Iranian Penal Laws
the compatible individual will be spiritually approved and supported by
his group. However, personal maladaptive behavior in most cases, causes
rather hostile reactions from the external environment (Cohen et al., 1989).
In terms of realism, in the criminal phenomenon appears as the
behavior of the human individual (human reality) against society (social
reality) (Brown, 2004). From a real point of view, a criminal phenomenon
is a disturbance in the social order (social reality) due to the behavior of
a human individual who is the member of that society (human reality)
(Shaygan and Rahmani Klakuob, 2019). As it can be seen criminal law
today is far removed from criminal law in the past. According to the time
and place requirements in the broadest sense, the abstract legal view based
on a rationality and materials based on science and experience is doomed
to regress so that legislators, adopting a realistic criminal policy in the
broadest sense, can legislate in Criminal matters according to the time and
place requirements an active dynamic state.
a. Crime, a human reality with biological dimensions
Criminal biology examines the physiological and biological factors of
crime and, like criminal psychologist, is considered as one of the factors of
realism, including science and knowledge in the service of criminal law. For
the rst time, Cesar Lembroso, an Italian military physician, established
the science of criminal anthropology with the publication of a book entitled
The Criminal Man and through introducing the story of congenital or
instinctive killer or the principal of criminal inheritance, which aimed to
study the physical condition of people with criminal behavior.
The scientic results of his knowledge, especially the role of chromosomal
disorders in the individual’s attraction to criminal behaviors, and in some
people’s belief, to the criminal relationship between individual’s behavior
and parents’ behavior, can put the panel system in a dierent direction.
The eect of intellectual transformation on modern positivists, who
by transitioning from biological determination to bio-educational the
determinism, have believed in a kind of dual physical and social criminal
determinism, cannot be ignored in how to attribute criminal responsibility
to perpetrators with eective biological and social problems. For this
reason, in most penal systems, recognizing the oender’s individual and
family personality is eective in determining his criminal fate (Faqir, 2016).
Inheritance means conditions that cause the transfer of physical and
behavioral characteristics from parents to children (Loeber, et al., 2009).
Genetics is the science of transmitting biological information from one cell
to another from parent to Infant, and then from one generation to the next.
A phenotype is the sum of the physical traits of a living being. This word is
opposite to the word genotype which means a set of genetic information of
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a person. Genotype eects genotype for but it can be more or less eective
under the inuence of the environment. Previously, phenotype meant only
traits that could be observed directly, but today it also includes biochemical
traits such as the ability or inability to produce a particular enzyme, as well
as behavioral traits (Beaver, 2015). Recent research suggests that there
are between 20000 to 30000 human genes that scientists have sorted.
Organizing the human genome is a rst step in understanding exactly how
genes is relating to human evolution and the normal function of his life.
For example, much of each gene’s function and how dierent genetic
variables are translated into phenotypic variables remains unknown. But
regarding these ambiguities, there have been very good studies that link a
specic gene to a wide range of disorders, such as ADHD, Attention Decit
Hyperactivity Disorder, alcoholism, and even anorexia or polyphasia,
though perhaps the most interesting genetic nding are the results of
the small number of the studies that have identify certain genes that are
associated with delinquency, aggression and serious violence (Walsh and
Beaver, 2009).
What is certain is that genus are more determinants than a complete
factor in the occurrence of behaviors. No one is programmed to commit
a specic behavior as a robot under the inuence of genes. For example,
a gene can have the potential for several dierent behaviors and change a
person’s function depending on the environment. Also, a gene can be turned
o for the rest of a person’s life, unless the conditions are right for it to
be turned on. In fact, the environment and genes interact with each other,
and the lack of one hinders the growth of living things. Undoubtedly, if
human knowledge is fully able to surround and control genetics, it will have
many positive eects on crime control and treatment. Control of genes after
accurate, comprehensive knowledge of their functions can be an eective
infallible factor in medical prevention.
Diagnosis of biological diseases aecting delinquency and inclusion of
cases in the delinquent personality prole helps the criminal court judge
in determining the type and amount of punishments needed for correction
rehabilitation and social reintegration, and on the other hand, additional
punishments with the nature of security and educational measures that can
include a wide range of measures, including medical treatment, can be used
and exploited. Since in many cases that oender needs a medical diagnosis
and treatment rather than punishment, which the inclusion of criminal
biological facts in a realistic criminal policy that leads to the formulation
and adoption of dimensional scientic laws in considered a symbol of
eective scientic rationality in how to deal with the criminal phenomenon.
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b. Crime human reality with psychological dimensions
Criminal psychology is “studying and researching the psychological
cases and nature of crime, as well as paying attention to the personality of
the oender and studying the feelings, motives, as well as specic mental
states that cause crime” (Thorburn, 2011: 30). The role of psychologists
in explaining the phenomenon of crime has been highlighted and since
they considered criminals not only from a judicial point of view but also
from the point of view of human facts, and instead of judging crime as a
separate act they examined personality dimensions. And they accepted
that a complete examination of a human being, criminal or non-criminal is
possible only by and in-depth examination of his personality. Regarding the
application of the principle of individualization of punishments and more
than the application of the principle in the judicial stage, which dates back
to the time of the adoption of criminal policy, in the justice system as a
goal that manifests itself in the legislative state in one dimension depends
on applying criminal psychology to help the justice system in solving
individual problems by targeting the individual and his direct role (Shaygan
and Rahmani Klakuob, 2019).
Criminal psychology is one of the specialized of psychology and is
considered a basic branch of criminology. The important missions of
this science or recognizing the character of the criminal, recognizing the
character the criminal, recognizing the tendencies of anti-social behavior
in human beings and evaluating the institutional and acquired factors
of such a tendency and its evolutionary course from potential to action,
evaluating the level o responsibilities and self-awareness in crime and the
role of unconsciousness in absense or decline of criminal responsibility, the
treatment of the oender and his social adjustment and elimination of the
danger of dangerous criminals and establishment of detention centers and
oender, rehabilitation and mental improvement organization, developing
and criminal health plan, developing insight and strengthening the sense of
recognition and understanding of those in charge of criminal aairs (Cohen
et al., 1989).
Realism in the psychological dimension of the criminal phenomenon
leads to research on how criminals’ personality dimensions are formed
and the search for the causes and factors leading to the emergence and
prevention of crime and the correction of criminals. One of the criminal
psychologies is data that plays an important role in adopting realistic
criminal policy to predict legal mechanism under the inuence of “legal
psychology”. Laws that make it possible to assess a defendant in terms of
mental is status to determine a person’s mental health and insanity at the
time of committing the crime. Also, legal psychologists predict and suggest
treatment methods for the oender in order to minimize the risk of crimes,
especially violent crimes (Ristroph, 2020).
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As we look at Iran’s laws, the issue of criminal psychology in the two sub-
issues of personality prole and the criminal development of the subject of
Article 91 of the Islamic Penal Code can be considered prominently. The
legal provisions in the most sever punishments has oered new balanced
solutions based on criminal psychology in Iranian criminal law (Nayyeri,
2012). Legal provisions in the most severe punishments have provided new
balanced solutions based on criminal psychology in Iranian criminal law.
Although the legislative approach in this realism and relatively rudimentary,
and without precise mechanisms and the use of full-time empirical experts
alongside the courts, it is a good opening in the realism of Iran’s legislative
criminal policy.
c. Crime a social reality with a subset of cultural economic
environment
In a division, social environments are divided into cultural environment
and economic environment; In Durkheim anomie, part of the criminal
phenomenon is formed is due to the unfair division of culture, which of
course has a signicant and relationship with growth at the social level,
and the lack of fair distribution of labor and wealth and economic factors is
one of the main causes of crime; And both factors among the fundamental
factors of signicant to delinquency in a realistic criminal policy in the
science of criminal policy and especially in Iranian criminal law. Today,
most of the micro-economy crimes in Iran that have nancial of nancially
related roots can be considered related to economics issues.
Crimes such as theft, malversation, unpaid checks, forging, drug
dealing, etc. On the other hand, many macroeconomy crimes, sexual
crimes, murder, and assault, etc., are closely related to the issue of culture
and culture development. In this part of the research, we will examine the
facts that govern cultural economic environments and their impact on
criminal policy.
d. Crime, is social reality with a cultural subset
In every society and in its cultural context, there are norms, rules, and
values within which the people of that society mainly act and behave.
The legal system of any social or originates from its culture and basically
culture should be considered as the soul and body of the criminal policy of
that society (Garland, 2006). Suppose the laws of society are in conict
with the cultural values of its members. In that case, the issue of cultural
conict arises, which in itself leads to the confrontation of laws that become
abandoned laws due to the lack of social origins.
Torsten Celine believes that cultural conict represents a conict
between moral values and contrasting behavioral norms, or a lack of belief in
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their conformity. The meaning of behavior criterion is a clear or sometimes
implicit rule that a person follows situations where an action or response
in necessary on his part (Vito and Maahs, 2015). The main assumption
was that: penal law is an interpretation of the laws of culture that govern
society. The very complex issue is that most people belong to many social
groups, i.e. family, peer groups, and occupational and religious groups are
very numerous. When a person lives in an environment where he or she
sees somewhat with dierent rules, he or she should also expect to meet
conicting standards. According to Celine, cultural confrontation occurs
when the laws codied in the panel code conict with a particular group’s
behavioral criteria (Ristroph, 2020). Value and cultural conict have been
well invisible in Iranian society and law at time; For example, we can refer
to the issue of laws regarding hijab and citizens’ resistance in this regard,
which in many cases there is no conformity in the culture of citizenship and
the statute rules, and it has caused many problems in recent years.
The issue of growth is accompanied by a fair division of culture, which
in long run brings with it term such as humanity, fairness, self-purication,
shrewdness, and liberalism, to set the social free from embezzlement,
economic corruption, bribery, and power abuse and so on. Although the
issue of culture is associated with some violent street crimes, it can also
be addressed in the case of white-collar crime potentials, which happened
to be fully compatible with the surrounding Society despite the very high
risk, an issue that has its roots in the lack of a growth-oriented and growth-
centered program for decades.
Imam Ali (AS) has made to pleasant, thoughtful and wise word in this
regard that are remarkable and thought provoking.
First: Mislaan lamp calling for reform.
The role of community ocials is also very eective in eliminating the
culture of delinquency.
Second: People with their leaders are more like their parents.
People are more like their rules than their fathers in morals and social
traits.
Creating a culture is a spiritual environment free from illegitimate
violence and crime and ghting those who commit crime is one of the
Islamic government’s primary duties (Zaaroni and Oliveira, 2013).
In the words of Imam Ali (AS), one of the rules of the theory of imitation
of Tord, which is the learning of the superiors’ inferiors, can be clearly seen.
People believe in the religion of their rules and learn the culture of altruism,
patriotism, self-sacrice and the key concepts of culture in a practical
way from the great people of society overtime. On the other hand, when
ordinary people observe that certain individuals easily ridicule law, justice,
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and moral principles, their belief in the mentioned cultural principles
disappears. They see the law as a haven for inuential people and those in
power. When people’s belief in the principles and foundations of culture,
justice, and law is destroyed and the collective is conscience and social piety
necessary for life is declined, ordinary people also consider themselves
entitled to commit oppression and crime.
e. Crime, a social reality with and economic subset
The economic environment plays a special role in the development of the
criminal phenomenon. Changing the economic situation from one country
to another or in the domestic territory of the country will have a very clear
eect on the amount and various forms of crime creating new needs, in
particular, will cause suering for classes whose new development is not in
accordance with the statues (Darabi, 2018).
Economic environments are considered as important factors in
delinquency and this issue has been considered dierently in opinions of
various scientists. Among the theories of criminology, Emile Durkheim,
Merton, and Cohen’s theory of pressure have dealt with societies’ realities
struggling with economic problems arising from lack of fair distribution of
labor and wealth. The theory of pressure is because people in a society have
goals to achieve a happy prosperous life, and to achieve their goals, they
rst of all the resort to legal means.
Failure to do so ultimately leads to the pursuit of illegal means by a person
who seeks to achieve their aspirations and even the minimum subsistence
needs. Durkheim refers to an economic society and considers the lack of
fair distribution of labor and wealth to cause anomie in a society. In fact,
anomie is the state of a society in which the division of labor and wealth is
disrupted in terms of the disappearance of collective conscience and the
feedback of mismanagement of nancial resources has not only plunged
public culture and economy into the collapse but has pushed society to the
point of disintegration (Tavajjohi, 2019).
The principle of individualization of punishments, labelling theory, and
the restorative justice are among the criminological data that broadly cover
a range of laws in order to enforce realistic criminal policy. Using theories
and related data in the legislative issues, the legislator has tried to design
laws that consider the personality dimensions of the oender and estimate
how dangerous he is and make the best way to deal with this person
available to the judicial authority. In fact by recognizing the dimensions of
the oender’s personality and considering the benets related to the victim,
in this approach, not only the social security of the local community but also
the oender’s attempted to control himself and compensate the material
& and moral damage of the victim has been considered in many cases.
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However, due to the need to react against delinquency, punishment has
also been considered for correctional, educational, and social reintegration
purpose.
4. The principal of individualization
The principle of individualization of punishments stems from criminal
law’s evolution towards paying attention to the perpetrator and his
personality. Observance of the principle of proportionality of the Crime with
punishment in personally provide only one of the purposes of punishment,
which guarantees that the oenders deserve to be punished for their act
(-Winick and Wexler, 2006). Punishment can play an important role in
ensuring that a person is fully entitled to punishment and other utilitarian
purposes. In this sense, individualization of punishment is the correction
of punishment based on the oender’s statues as an individual. In short,
the individualization of punishments means that while observing the
principle of legality and personal nature of punishment, the judge can
impose dierent punishments for multiple oenders who have committed
a single crime by observing the oender’s social, physical & psychological
circumstances (Canter, 2008).
Existence of minimum and maximum punishments, rules for
amnesty, parole, mitigation and conversation of punishments, rules
related to intensication of punishments are examples of the principle of
individualization of punishments (Okon, 2014).
Success in applying the principle of individualization depends on
accurate and wise estimation of the degree of criminal capability and the
state of being dangerous. A state of being dangerous is a condition in which
a person has the ability to commit a crime. Clinical criminology seeks to
correct treat and prevent recurrence of a crime by multilateral examination
of the oender as a physician. Dublino considers the dangerous state to be the
potentially exciting and specially the obvious state of one who is actualized
at the same time as the dicult social situation (Cohen et al., 1989). From
the positivists’ point of view, the dangerous situation is the pillar of criminal
responsibility or, in their words, social responsibility. Dangerous state
replaces fault in classical system or unscientic criminology. Therefore, the
dangerous condition of the person should be recognized, and he should be
subjected to social measures, and by adopting appropriate measures, he
should be corrected and treated so that he can return to society. Contrary to
classical criminology, it also includes lunatics and children. Therefore, the
crime and its severity are not a criterion for determining punishment, but
the degree of the dangerousness of the oender is a measure of punishment
and the oender and his criminal capacity should be considered; this view
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has opened new horizons in criminal law (Delshad and Mazaheri, 2018).
The openings are a large part of our criminal law and one of the
foundations of realistic criminal policy. Paying attention to the dimensions
of personality in order to nd out the degree of danger in each of the isolation
cases considered by the legislator depends on scientic the specialized the
research in biogenic psychogenic and sociogenic dimensions of the oender;
therefore, the criminal court judge in this process should be a person
specializing in related to sciences or the consulting body, together with the
criminal courts, should from a case called the personality prole under the
supervision of experienced and skilled experts. However, another eective
component in the success of the principle of individualism depends on his
specialized research on the dimensions of a person’s personality, which
experts do.
4.1. Personality prole, an important means of achieving
realism Creating a personality prole to personalize the
punishment and enforcing it to correct and treat oenders has
long been considered
In his prole, rst of all, the physical biological bodily structure of the
oenders, how the brain and endocrine glands work and his disease should be
reected; secondly, his psychological characteristics as well as his psychological
reactions must be precisely determined; tiredly, his personal, social, cultural and
educational situation, his background and his relation with relatives, etc. Should
be determined (Jacobs, 1980: 21).
Thus, given that in criminology, etiology, crime, the eects of various
social and individual factors include biological and physiological factors,
in the individual’s personality prole, all these factors that have led the
perpetrator to commit the crime, should also be considered. Since this case
is a is specialized support for the judicial authority to correctly diagnose the
deterioration of the dangerous situation and criminal potential. Whether the
oender needs medical treatment, or the maintenance and implementation
of correctional programs depends on the personality prole’s scientic
professional formation.
In the criminal system of many countries today the examination of the
oender’s personality is an important factor in judicial decisions, and it can
be said that the personality prole is the most important evidence that can
change the procedure after criminal system from “establishing a balance
between crime and punishment to “provide a treatment proportionate to the
crime”. In the next stage, after the conviction and sentence execution, the
personality prole is used to apply the principle of individualization of the
punishments and also to determine and their correctional, educational and
treatment methods appropriate to the oender’s personality; However, the
use of personality prole is not limited to individualization of punishment,
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but the content of this prole is useful and eective for applying many laws
and implementing the institutions provided in them (Pinizzotto and Finkel,
1990).
According to article 203 of the Code of Criminal Procedure (Bennett,
1996: 18):
In crimes for which the legal punishment is the deviation of life, amputation,
life imprisonment or ta’zir of the fourth degree and above, as well as in intentional
crimes against physical integrity for which the amount of blood Money is one
third of the full atonement of the innocent or more, the investigator is obliged to
issue an order to le a prole for the defendant do the social work unit during the
investigation.
This case, which is separate from the criminal case le, contains the
following:
A. Report of the social worker regarding the nancial, family, and social
situation of the defendant.
B. Medical and psychiatric Report.
Also according to clause C of the article 279 of the Code of Criminal
procedure (Bennett, 1996), summary of the defendant’s personality prole
or mental condition is one of the items that must be mentioned in the
indictment.
While the vast majority of the means of judicial individualization
provided by the legislature cover great 5to8, therefore, a aw in criminal
policy is evident and their required facts have not been taken into account.
Nonetheless, it is practically impossible to make a scientic decision
about the principle of individualization due to the lack of anticipation of the
task to form personality prole.
As described above, the most important part of the criminal prosecution
process is the preliminary investigation. Considering the criminological
data, the necessity of forming a personality prole to use discriminatory
means in case if we have considered realistic criminal policy in the broad
sense, would be inevitable; however, the lack of anticipation of a task for
investigative authorities to make personality proles for low-level crimes
has blocked the way to this criminal policy from the beginning. This is one
of the reasons for the meaning of the use of means and in many cases the
abandonment of relevant materials.
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5. The need to establish care oce
Examination of the means of judicial individualization in criminal law,
such as suspension of prosecution, postponement of sentencing, semi-
liberal system and suspension of punishment execution, always reminds
us that although according to the data of these criminal law establishments
there are eort to avoid imposing punishments for those who deserve
them, but caution should be exercised in any case, and oenders should be
constantly monitored and given psychological, medical, and his sociological
counseling. Undoubtedly, leaving the issue of care to the execution of
sentences and ocers is doomed to failure from the beginning due to you
to their workload; Inevitably, a separate department called the care oce
albeit under the supervision of the prosecutor’s oce, is needed to achieve
the goals of realistic law, with the recruitment of specialist specializing in
criminal psychology, criminal psychology, criminal law, and care forces.
The probation oce in France works to carry out a probationary period
under the supervision of a judge with a special care ocer and supervise
that proper execution of the probation period’s orders.
At present, the institutions of the principle of individualization, which
are considered as one of the most important manifestations of a realistic
criminal policy in the broadest sense, in the vast majority of cases require
the implementation of special instructions, the correct implementation of
which depends on the presence of the Department of Care and the presence
of expert. With the legislative vacancy and the unpredictability of such an
institution, the grand for achieving the goals of criminal policy in the broad
sense in practically unattainable, and this has led to minimizing the citation
of legal materials originating from a realistic point of view on the criminal
phenomenon. In addition, in some cases, the relevant materials appear in
the form of paper and abandoned rules.
The principle of minimum criminal law is one of the causes of the
emergence of criminal in ination and criminal trac in courts, which itself
causes brief unscientic treatment of the criminal phenomenon is non-
compliance with the principle of minimum criminal law.
Unregulated criminalization and the inuence of criminal law on
issues that can be controlled and managed by guaranteeing non-criminal
executions or among the factors that waste enough time for scientic and
professional investigation of real crimes.
Hence, the minimum principle of criminal law is the norm and regulator
of criminal law and criminal interventions; criminal science intervention,
as the most intense from of exercising ocial governmental power, always
tends to conquer new territories and develop more than ever.
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According to this principle, criminal moderation replaces criminal
extremism, and as the results, not only will the ground for the abuse of
criminal law, its concepts means and institutions be reduced but also the
moderation of the use of idealistic concepts to achieve realism (Ashworth
and Horder, 2013).
Conclusion
Although Iran’s legislative criminal policy has not followed a single
policy and can be considered in two dimensions, the broad concept and
the narrow concept, but the subject of this article, as we have seen, was to
examine the areas in which realistic laws in practice are successful, and in
the absence of them, not only will they not be considered an opportunity to
create security and comfort for the citizens, but they will themselves be the
source of much harm in this regard. The realistic criminal policy is the crime
policy in the general sense that covers and considers from pre-criminal to
post-criminal situations to manage the criminal phenomenon.
One of the factors for the success of a realistic criminal policy lies in
this policy’s success and approach to crime prevention issues. The reality,
in which success brings the formation of a criminal phenomenon to the
minimum possible in society at the lowest cost, and neglecting it causes
criminal ination in society. In the meantime, although state-of-the-art
prevention creates obstacles to committing a crime, what reduces criminal
capacities and dangerous situations lies in growth-oriented prevention.
Lack of prevention that can be designed and implemented in the short-
term, mid-term, and long-term and intergenerational period, confront the
society with a kind of cultural anomie and the success in designing and
implementing the community in terms of life skills.
Undoubtedly, in such a society, legislation based on a realistic criminal
policy that believes in human dignity, personality, and punishment in the
form of a citizen’s right to a criminal will be eective and fruitful. Because
only in a society where the division of labor, wealth and culture is done
fairly can we face minimal lawlessness and close enough opportunity for
realism in criminal law and hope for its eectiveness. Another part of the
background of realistic criminal policy should be sought in the ability to
identify the occurrence of the criminal phenomenon and, better yet, in
how the criminal character is formed. An issue that depends on accurate
knowledge of personality dimension in the biogenic, psychologic and
sociogenic sectors, and the achievement of which owes itself to the necessity
of making a personality prole for crimes in which examples of realism are
to be applied; Otherwise, without the need to make a personality prole, not
only will s correct estimate of the dangerous is state and criminal potential
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not be obtained, but the citation of realistic material will also be harmful.
As it turned out, realistic laws in the eld of enforcement require a
department called the probation or care oce to be successful, which
guarantees the acquisition of the goals of realism in order to achieve
reform and self-control with a sucient number of specialists in the eld of
forensic medicine, criminal psychology, criminal psychology and personal
care forces. And by not anticipate such an institution, not only will the
citation of realistic laws remain at a minimum, but if it in is invoked in the
eld of implementation, it will face a serious problem in achieving its goals,
The two factors of crime prevention and observance of the principle of
minimum criminal law also remind the background factors, the observance
of which is an eective factor to achieve realism and reduce the costs of
providing criminal justice in one sector and spending in the right place.
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Esta revista fue editada en formato digital y publicada
en julio de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 69
