Document Type : Research Paper

Authors

• Hussein Gholami ¹
• Vahidreza Masoumi ²

¹ Professor, Department of Criminal Law and Criminology, Allameh Tabataba’i University, Tehran, Iran

² , PhD, Department of Criminal Law and Criminology, Allameh Tabataba’i University, Tehran, Iran

Abstract

Extended Abstract
Problem Definition
This exploration of the intersection between Republican theory and criminal law as the last and least resort highlights a significant dialogue on freedom, justice, and governance. The concept of "liberty as non-domination," articulated by scholars like Philip Pettit, challenges traditional liberal notions of freedom that prioritize personal autonomy. This redefinition is particularly relevant in contemporary criminal justice discussions, where it has profound implications for state power and individual rights.
This research explores the intersection of Republican theory and the principle of criminal law as a last and least resort, highlighting critical issues surrounding freedom, justice, and governance. The concept of "liberty as non-domination," articulated by Philip Pettit, challenges traditional liberal views that prioritize individual autonomy. This redefinition is particularly pertinent in contemporary criminal justice discussions, where it impacts state power and individual rights.
There exists a fundamental tension between Republicanism and the punitive measures typical of modern legal systems, which often emphasize retribution and deterrence over communal responsibility and protection from arbitrary state actions. This research addresses the potential for integrating Republican ideals into criminal law, advocating for restorative practices and greater citizen participation.
In the context of Iranian legal thought, the adoption of Republican principles could foster transformative insights, particularly in advancing restorative justice frameworks that promote healing and community engagement. By critiquing existing retributive frameworks, this research aims to illuminate pathways toward a more just and participatory legal system that embodies the principles of freedom, justice, and communal responsibility.
The questions of the paper are

Fundamental deviation: It questions whether Republican theory fundamentally deviates from contemporary understandings of criminal law.
Theoretical Foundations: It seeks whether Republican theory provides the necessary theoretical support for the principle of criminal law as the last and least resort.
Implications for Justice: It investigates how the principles of Republican thought can inform and enhance justice systems, especially in the context of restorative justice and community engagement.

 
The purpose of the paper is to explore the relationship between Republican theory and the principle of criminal law as the last and least resort, particularly in the context of Iranian legal discourse. It aims to:

Analyze the concept of freedom as non-domination and its implications for justice and governance.
Critique the limitations of retributive and consequentialist approaches in modern criminal law, highlighting their role in perpetuating power imbalances.
Advocate for the principle that criminalization should be a last resort, promoting restorative practices over punitive measures.
Investigate whether Republican theory diverges fundamentally from modern criminal law and how it can support the last and least resort principle.
Enhance the understanding of justice in Iran by integrating Republican principles and emphasizing citizen empowerment and community engagement in the legal system.

Overall, the paper seeks to enrich the understanding of how Republican theory can inform and transform contemporary approaches to criminal justice.
Methodology:
 Literature Review: A comprehensive examination of existing literature on Republican theory, liberty as non-domination, and modern criminal law. This includes works by key scholars like Quentin Pettit, and John Braithwaite, and historical texts from Machiavelli and ancient Roman legal traditions.
 Conceptual Analysis: Analyzing the definitions and implications of key concepts such as "freedom," "domination," and "criminal law as last and least resort" within the context of both Republican and liberal theories.
The findings of this research are as follows:

Integration of Republican Theory: Republican theory effectively informs contemporary criminal law discussions, particularly through the concept of "liberty as non-domination."
Support for Criminal law as the last and least resort: The principles of Republicanism advocate for criminal law as the last and least resort, arguing that criminalization should be a last resort and promoting restorative justice over punitive measures.
Critique of Existing Frameworks: Modern retributive and consequentialist approaches are critiqued for perpetuating social inequalities and failing to protect individuals from domination.
Theoretical Divergence: There is a fundamental divergence between Republican and liberal theories regarding freedom and the state's role in justice, with Republicanism offering a more social understanding of freedom.
Implications for Iranian Legal Discourse: Incorporating Republican ideas into Iranian legal discussions can enhance the understanding of justice and promote restorative practices.

Conclusion
The Republican tradition was revitalized in the late 20th century, offering an alternative to liberal theory by redefining liberty as non-domination. Contemporary Republicans critique modern criminal law for its individualistic focus and lack of coherent normative theory. They emphasize that the primary aim of criminalization should be to protect fundamental rights and freedoms, warning against methods that impose domination. The principle of criminal law as last and least resort emerges as central, advocating for a broad definition of crime to limit state power over individuals. This perspective ultimately contributed to the development of restorative justice as a new approach to addressing social norm violations.

Keywords

• Republican Tradition
• Liberty as Non-domination
• Modern Criminal Justice
• The principle of criminal law as the last and least resort
• Restorative Justice

Main Subjects

• Political Thought