A review of judicial powers in various schools for determining punishment

Abstract

The principles of securing justice and individualizing punishment can be likened to two sides of the same coin, mutually justifying the simultaneous existence of each other. With regard to determination of punishment, on the one hand, the principle of equality and consistency of punishment lacks the required efficiency in that it does not consider the specific personal and social circumstances of the criminal in individual cases, and this condition would justify the imposition of equality of punishment; and on the other hand, the principle of securing justice is itself the foundation stone of individualizing punishment. No doubt, legislation of fixed punishments by legislators resulting from their mistrust of judges, which itself results in equal/unequal treatment of criminals, would completely destroy any chances of individualizing punishment. However, by setting forth minimum and maximum punishments and recognizing the right of a judge to apply mitigating or aggravating circumstances, to suspend or delay a punishment, to pardon or apply conditional release, and to impose additional punishment, legislators have actually provided a judge with a certain degree of freedom to issue sentences in accordance with the criminal’s specific characteristics as well as the specific circumstances of the crime. In this regard, Islamic Code of Punishment has taken steps to individualize punishment via considering limits for penalties (Taazirat) where particular importance is given to a judge’s insight, and via recognizing repentance as a way of mitigating punishment.