Criminal Law in light of the Political Theory of Constitutional State

The state’s authority to use the criminal law is originally based on the political theory which legitimates the state. Therefore, it is necessary to understand the kind of political philosophy and political thought of a state for establishing a theory of criminal law.In Muslim-majority countries, the criminal law faced chronic problems in several aspects due to the emergence of thoughts on constitutionalism. The political theory of the “Constitutional state” supported by Naini is an effort which includes both modern state and Sharia requirements. The article generalizes the basis of political legitimacy to the criminal law theory and examines how adjustable the criminal law created by such a political theory is. The criminal law adopted by this theory induces a deep paradoxical dualism and conflicts which could not be solved in the constitutional period in Iran. These conflicts yet remain unresolved and it is vital to address this critical challenge.