Analysis of the proposed materials in the “Chastity and Hijab” bill, according to the principles and rules defined in the Islamic Penal Code and the Law on Reduction of Enhancing Penalties, although necessary, is not as important as the author believes. What is more important, in the author’s opinion, is the expression of the philosophical existence of criminal rules and theories defined in legal schools regarding the philosophy of criminal existence and the criminalization of citizens’ behaviors in a society.

The study of law in the late 18th and early 19th century coincided with the emergence of intellectuals who delved into the philosophy of legal existence. In analyzing the reasons for the necessity of establishing legal rules, they presented various theories and opinions from different perspectives such as biology, sociology, psychology, ethics, religion, and so on. Each of these diverse aspects provided a justification and rationale for the need to define their specialized knowledge.

Medicine, like Lombroso, refers to the classification of criminals from a morphological perspective and declares the physical appearance of individuals as a sign and criterion for distinguishing criminals. The terms “dangerous state” and “innate criminal” are products of his theories. Lacassagne, as a sociologist, refers to the role of society in the upbringing of individuals and criminals and believes that every society deserves the criminals it has raised. Beccaria and Bentham focus on the role of justice and the realization of criminal justice, and from this perspective, they believe in the certainty of punishment and the acceleration of criminal proceedings. Montesquieu and Rousseau, based on the civil nature of humans, refer to the social contract and believe that individuals in society have a duty to benefit from social rights without any obligations.

The result of these theories led to the formation of schools such as absolute justice, social defense, classical, and so on.

In this regard and based on the diversity of opinions presented, criminal law has been established as an independent science in the field of law and social sciences. Criminology, criminalistics, penology, sociology, criminal policy, and others are considered as related branches to this knowledge, each one focusing on the analysis and examination of one of the three aspects of criminal law: “crime, criminal, and punishment” in order to help the output of these theories in the majesty of law to promote the rule of law in society and prevent deviant behaviors. Criminal law defines and considers harmful behaviors to society as crimes, and the perpetrator of such behavior is deemed deserving of punishment. The implementation and application of this general rule is subject to specific conditions and the observance of principles and rules that have been presented by legal and social schools of thought over the past one or two centuries. The principle of personalization of punishments, consideration of the personality of the accused, proportionality of crime and punishment, the

The 19th and 20th centuries are known as the era of criminal law reform, transitioning from personal revenge to social benefit and rehabilitation of criminals, to focusing on the individual and circumstances of the crime, and then identifying the role of the victim in committing the crime. All of these are the result of ideas and theories presented in various criminal schools of thought.

Restorative justice is also the result of these very thoughts. In the restorative justice model, crime is defined as harm and damage against individuals, which leads to the breakdown of private relationships within society. The crime is calculated based on the amount of harm inflicted on the victim, and criminal justice strives to restore the true balance of social harmony that has been disrupted by the commission of the crime. The ultimate goal of restorative justice is to reform the structure of society, compensate for the damage caused, and create conditions for the parties involved in a crime to reach an agreement in order to ensure and compensate for the harm caused as a result of the crime.

Therefore, what should be considered in defining penalties and punishments, in addition to the principles and obvious rules of criminal law, is to provide conditions for criminal justice. As a result, the most important criterion for legislating punishments in legal systems is to pay attention to the harmful effects and consequences that the offender has imposed on society with their criminal behavior. Identifying and measuring this proportion, alongside the defined goals for punishments, is a necessary requirement for legislating penalties.

In the code of chastity and hijab, none of these necessary requirements have been observed in criminal legislation and the prescribed punishment does not correspond to the committed crime; sometimes imposing a punishment is equivalent to violating fundamental principles such as protecting individuals’ privacy. For example, where it is intended to collect ten percent of the property and assets of the offender as a fine, it will not be possible to verify this unless we have access to the accused’s property and assets, which is a clear violation of individuals’ privacy and contrary to the principle of free ownership. What is the main criterion and basis for criminal legislation is closely related to the consequences of criminal behavior. In other words, the essential condition for criminal legislation is proportionality between crime and punishment. Governments in different periods of history, based on the accepted moral and social values in society, have paid attention to criminalizing anti-social acts and have determined punishments in order to defend the respected values of society for such behavior. Therefore, governments, wherever they

In criminal law, the reason and philosophy behind the existence of criminal acts and punishments by the ruling authority is one of the criteria for dividing different eras in the history of criminal law. Private revenge, social defense, achieving justice, reforming criminals, etc. are not only the goals of punishments, but also a criterion for identifying different eras of criminal law, each of which has been adjusted with theories and opinions of intellectuals and ultimately defined as a combination of the goals of punishments in the current era in the dignity of criminal policy.

The Iranian regulatory system, based on various theories and religious rulings, has witnessed various changes in the definition of crime and the application of legal principles and abbreviated criteria in the implementation of punishments, in accordance with the principle of personalization of penalties and individualization of punishment. In this regard, we see the establishment of regulations in the law on reducing disciplinary punishments, in order to consider the offender eligible for reduction or aggravation of punishment based on the circumstances and conditions of the crime and the social status of the offender, and to impose a punishment that is defined for him in the direction of his social reintegration or further punishment. However, what is controversial in the draft of modesty and hijab is the lack of proportionality between the defined punishments and the criminalization of citizens’ behavior. The fact that the legislator justifies the criminalization of a social behavior by referring to the abandonment of a religious obligation and rises up against such behavior with the most severe disciplinary punishment, does not comply with any

Based on what we see in the modesty and hijab bill, the sole purpose of the punishments defined in this bill is to discuss the issue of reproduction without considering the benefit of society. Although one of the defined missions for punishment is the mission of reproduction – meaning that violating social norms leads to harm in society and therefore society is entitled to compensate for the damage by inflicting pain and suffering on the perpetrator – this form of dealing with anti-social acts belongs to the era of private revenge, which is rooted in a sense of vengeance. Not only was the perpetrator targeted, but also their relatives were entitled to seek revenge from the tribe or clan to which the perpetrator belonged. However, attention to criminal justice, restorative justice, and distributive justice has led to a greater focus on the role of moral purification in criminal acts and the usefulness of punishment. This is now the most important criterion and goal in the establishment of criminal law, moving away from personal revenge and towards social justice and social benefit.