Intensional-critical Analysis of the Place of Religion in Criminal Legislation and Proceedings from the Viewpoint of the Relation between Jurisprudence and Law

The criminal legislation, more than any other branch of law, requires respecting principles that are consistent with sources of legislation. The connection between Islamic law and legislation and proceedings, especially in the criminal field, is also a long-standing debate which has experienced certain changes in the new legal transformation. In the present study, the extent to which the legislator adheres, in the Islamic Criminal Code, to one of the most important principles applicable in the criminal field, i.e. nulla crimen sine lege in two instances of abetting (the subject of article 127 of the aforementioned Code) and Hadd Crimes (the subject of article 220 of the same Code) will be assessed. The authors have critically analyzed two examples of such changes in the form of conflict assessment of articles 127 and 220 of the Islamic Criminal Code passed on 21/4/2013 with principles 36 and 169 of the Iranian Constitution and the nulla crimen sine lege rule. The outcome of this research also provides a general moderate approach to the question of whether religion is a source of criminal legislation and it seems that it has the capability to make legislation interact, in some way, with the legislative principles and the religious culture of the Iranian society and is able to slow down or stop the acceleration of confusion in the Iranian criminal legislation and finally, religion in positive criminal law, is a source of legislation and may not be a direct source of rendering judgment.