A Jurisprudential Analysis of the Role of Gender in Iranian Criminal Law with Emphasis on the Concept of Contextual Justice

Abstract

The criminal law system in Imami jurisprudence is not solely based on the criminalization of conduct and the imposition of punishments; rather, it encompasses a set of limiting and protective rules aimed at preventing the unjust expansion of criminal liability and safeguarding vulnerable individuals. Principles such as “no harm” (la darar), “preservation of life” (hifz al-nafs), and “the avoidance of hudud punishments in cases of doubt” (dar’ al-hudud bi al-shubuhat) are among the most important jurisprudential foundations for restricting the scope of punishments, and they play a significant role in maintaining a balance between the enforcement of criminal justice and the protection of individual rights. Within this framework, the issue of marriage involving minors can be examined as one of the key areas of protective intervention. Although Imami jurisprudence recognizes the authority of a guardian (wali) over the marriage of a minor, the exercise of this authority is conditioned upon the observance of the ward’s best interests, and in cases where such interests are absent or harm is present, its legitimacy becomes questionable. Contemporary jurisprudence, by drawing on theories such as “governmental jurisprudence” and “interest-oriented jurisprudence,” has expanded the scope of this protective approach and has enabled legislative intervention to protect children and prevent social harm. This theoretical development is also reflected in certain contemporary legal provisions and indicates a gradual transition from a purely individual-centered approach toward a framework grounded in protective and social welfare considerations in criminal policy. The present study, using a descriptive-analytical method and drawing upon jurisprudential and legal sources, examines the role of these principles in limiting the scope of criminal liability and strengthening protective mechanisms for vulnerable groups.