Feasibility Study of Applying the Principle of Proportionality in Prescribed Punishments

In the common view, guiding the principle of proportionality to discretionary punishments awarded by judge, and not leading it to the unalterable punishment prescribed by religious, is considered as one of the differences between prescribed punishment and discretionary punishment awarded by judge. This difference, in a way, is due to the absolute stability that, in the common sense, exists for prescribed punishments in terms of the type, amount and quality of execution of punishment. prescribed punishments do not include the principle of proportionality, because, based on the assumption, the application of this principle requires flexibility, which prescribed punishments do not have. With an analytical-critical approach, this article shows that the holy shari'a of Islam has made every effort to apply the principle of proportionality in prescribed punishments. This, in turn, negates the claim that the principle of proportionality does not apply. On the other hand, according to the emphasis of the Holy Shari'a of Islam on the "principle of justice" as the basis of the principle of proportionality, can and should, relying on the capacities that exist for expedient change in prescribed punishments, the principle of proportionality in all punishments, including prescribed punishment and discretionary punishment awarded by judge always strengthened and guaranteed. Thus, prescribed punishment and discretionary punishment awarded by judge will not be different in terms of applying the principle of proportionality.