The restrictions of using criminal law in Iran’s criminal justice system based on the theory of instrumentalism

摘要

The constitutional legislator of Islamic republic of Iran in the article 71 of constitution has obliged the Islamic Consultative Assembly to legislate ?in accordance with constitution?. According to the mentioned article, the Islamic consultative assembly in legislating criminal law not only doesn’t have full authority, but also is subject to the restrictions set in constitution. In addition, according to the article 4 , since ? all rules and regulations of civil, criminal, financial, economic, administrative, cultural, military, political, and others must be based on Islamic criteria ?, therefore, another restriction that the Islamic consultative assembly has got in legislating criminal law in the domain of individual rights and freedom, is just legal restrictions. In other words, the Islamic consultative assembly must criminalize in the domain of personal and individual behaviors and in the limit of Islamic criteria. Accordingly, legislator in the article 72 has decreed that ? the Islamic consultative assembly can’t make laws which oppose the principles of official religion or constitution ?. Thus, with regard to the mentioned article and article 71, in investigating criminal law, The Guardian Council must consider this point that the Islamic consultative assembly criminalizes in the limit of principles set in constitutions and if it detects that Islamic consultative assembly has criminalized out of constitution’s limit, then the approval must be avoided.