The Scope of the Legitimacy of Prison in Comparative Jurisprudence and Its Role in the Iranian Penal System

In Iranian criminal system, imprisonment is the main and primary punishment for many crimes as in the past. It is sufficient to review Article 19 of the current Penal Code in this regard, which is at the top of all penal punishments, regarded as imprisonment. Since, this way of punishment has caused many challenges, alternatives for imprisonment and reduction of penal servitude are among the most important legal solutions. In addition to the requirement in the fourth principle of the Constitution of the Islamic Republic of Iran, based on all laws based on Islamic standards, the Islamic punishment law, as the main law of this criminal system, has been explicitly attributed to Islam. However, this fact that “imprisonment should be the main and primary punishment for many crimes, and if there is corruption or expediency from the point of view of attribution to Islamic law and it is necessary to consider an alternative or reduce its amount” requires investigation in terms of being attributed to the Islamic legislator. This research is of double importance because by imprisoning, the freedom of the person in all contexts are excluded not that restrictions are imposed only on the crime committed; hence its broad utilization may be incompatible with the human right to freedom or other natural rights. In this regard, the required data were collected by documentary method from religious evidences and the studies of Shia and Sunni scholars, and according to the results of analysis, it has been proven that its broad use in the form of the main and primary punishment with reference to legitimacy of imprisonment in religious narrative evidence and accordingly in comparative jurisprudence or by referring to the absence of imprisonment in the exclusivity of examples of punishment is not allowed. Hence, it is suggested that the same appropriate punishments to be the main and primary punishment for crimes. This is the right way to prevent imprisonment, which is incompatible with comparative jurisprudence.