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ISSN 2063-5346
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FUNDAMENTALS OF CRIMINALIZATION AND FREEDOM IN THE WEST AND ISLAM, AND LIMITATIONS ON FREEDOM IN BOTH SYSTEMS

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Adel Sarikhani1 , Morteza Fat'hi2 , Zahra Tavangar3
» doi: 10.31838/ecb/2023.12.3.157

Abstract

Criminalization is one of the government's responsibilities in contemporary society. However, some philosophers view this obligation as justification for the government to restrict freedom through criminalization. In this study, an attempt was made to explain two distinct perspectives on freedom and criminalization, as well as their relationship. The primary objective of this study was to enable society to differentiate between freedom and criminalization in the West and Islam, and it was necessary to analyze both systems in the field of study to provide a thorough and effective analysis for society. Therefore, the following research question has been posed: what are the scope and limits of freedom concerning criminalization under Islamic and Western criminal law? The findings indicated that the limits of freedom in any society are defined by the government in accordance with its governing ideology, and of course, the same government criminalizes it. The relationship between the concepts of freedom and criminalization, the public and the private, is crucial. In Islam, both freedom and criminalization originate from the religion of Islam, and there are, however, restrictions on freedom as well as regulations in place to secure freedom. In the event of a violation of any of them, a variety of criminalization, such as retribution or prescribed punishment (haad), can be formed; thus, the relationship between freedom and criminalization becomes multifaceted. In Western societies, liberalism is often understood through a utilitarian lens, as exemplified by Mill's philosophy. According to this perspective, criminalization ought not to impede individual freedom to the greatest extent possible. In other words, the limitation of freedom should be minimized. In the meantime, by analyzing a few examples, it is possible to conclude that freedom in its Western sense had few implementation guarantees, as discussed in the article. The research method was qualitative and descriptive-analytical.

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