With the emergence of Shīʿī theocracy in 1979, the newly established state, the Islamic Republic of Iran, set in motion a “sharīʿatization” project. As part of this transformative initiative, theocrats dismantled the General Criminal Law of 1925 in 1982, just three years after the Islamic Revolution, and enacted a series of Islamic criminal laws through three distinct acts: The Law Concerning Islamic Punishment and Other Relevant Provisions, The Law Concerning Islamic Punishment Containing General Provisions, and The Law Concerning Diyat.[1] In 1991, these separate laws were consolidated into the Islamic Penal Code.[2] Five years later, the Iranian Parliament passed a new bill on discretionary punishments (taʿzīr), which was incorporated as the fifth book of the Penal Code.[3] The interim period of the IPC was subsequently extended, culminating in the preparation, approval by the Guardian Council, and implementation of the revised Islamic Penal Code (hereinafter the “IPC”) in 2013.[4] Despite the significant fluctuations in criminal legislation over the last four decades, including both progressive innovations and setbacks, three forms of punishment—taʿzīr, ḥudūd, and qiṣāṣ—have remained central to the post-revolutionary criminal law framework.[5]
Indeed, after the overthrow of the Pahlavi monarchy (1925–1979), which had endeavored to align both society and the state with the dominant secular international order, the most critical step in solidifying the foundation of Iran’s newly established theocracy was a sharīʿa legislation project.[6] This project aimed to embed religious norms within the previously secularized political and legal spheres.[7] Criminal laws were particularly instrumental in achieving these goals due to their profound political and symbolic significance.[8] An exemplary case was the criminalization of non-compliance with the religious headscarf (ḥijāb), which has since become emblematic of the state’s efforts to combat perceived Western corruption and restore authentic Islamic values.[9] Moreover, penal laws possess a unique coercive power, essential for the control and regulation of the nascent institutions within the new civil order.[10]
Safeguarding Islamic jurisprudence was also enshrined in Iran’s Constitution under Article 167:
The judge is bound to endeavor to judge each case on the basis of the codified law. In the absence of such a law, the judge must base their judgment on authoritative Islamic sources and authentic fatwās. The judge cannot refrain from admitting, examining, and delivering a judgment under the pretext of the silence, deficiency, brevity, or contradictory nature of the law.[11]
This article has sparked considerable debate among Iranian scholars, as many view it as a challenge to the principle of the legality that applies to matters of crime and punishment (nulla poena sine lege: no punishment without law).[12] In response, some scholars have proposed a more moderate interpretation of theocracy, seeking to mitigate the potential excesses of a theocratic criminal law system and safeguard the rule of law by advocating for a more restrained application of Islamic legal principles.[13]
A number of commentaries and scholarly works have examined the scope and implications of Article 167.[14] Some scholars argue that the intent of Article 167 was solely to address civil cases.[15] Others argue that the framers of the Iranian Constitution did not aim to jeopardize individual rights and freedoms by granting judges unchecked authority, particularly in the realm of criminal jurisprudence.[16] While I have explored these arguments in detail elsewhere,[17] it suffices to mention that the long-awaited bill enacted into law in 2013 served as the severest blow delivered by the legislature to the jurists who had pinned their hopes on that legislation making room for the principle of legality. Both surprisingly and disappointingly, Article 220 of the IPC explicitly states that “as regards ḥudūd punishments not mentioned in the present law, action shall be taken in accordance with Article 167 of the Constitution.” Furthermore, the 2013 IPC adopts a more expansive approach to ḥudūd punishments compared to its 1991 predecessor, with the list of specified ḥudūd offenses expanding from eight to twelve.[18]
While the previous discussion examined the interpretive scope of ḥudūd in light of Article 167 and its implications for the principle of legality, it is also important to consider a broader and more fundamental question: whether ḥudūd laws should be implemented at all in the context of the Islamic Republic of Iran. Despite numerous arguments proposed by Iranian scholars to suspend the implementation of ḥudūd laws, both from detached (external) and committed (internal) perspectives,[19] Iranian penal policy reveals a profound and intricate relationship between ḥudūd laws and the theocratic identity of the state. Indeed, ḥudūd laws play a defining role in shaping the structure and character of the IPC. Their inclusion in the Iranian penal system is not merely a matter of legal framework; it is deeply intertwined with the ideological and jurisprudential foundations of the Islamic Republic of Iran. These laws embody the political and religious commitment to enforcing God’s will through the state’s legal apparatus, thereby affirming the state’s identity as an Islamic state dedicated to upholding Islamic principles in every facet of governance.[20]
The application and enforcement of ḥudūd laws in Iran underscore the Iranian state’s identity as one that derives its legitimacy from the divine authority. By enacting ḥudūd laws, Iran positions itself as the protector and executor of divine justice, thereby distinguishing itself from secular legal systems.[21] This distinction holds particular significance in the context of the Islamic Revolution of 1979, which sought to establish a political order grounded in Islamic values, in stark opposition to the secular, Western-influenced laws that preceded it.[22] The inclusion of ḥudūd provisions in the IPC reflects the Islamic Republic’s unwavering determination to enshrine Islamic principles within the fabric of its legal, political, and social systems. In this context, it is tempting to suggest that the law is not merely a human construct but a direct expression of divine will. Remarks made by Islamic law scholar Mohammad Fadel resonate deeply here: “Because of the categorical nature of the penalties, and probably because they have come to symbolize Islam . . . many Islamic political movements have made vocal demands for the application of these penalties as proof that the legal system is Islamic.”[23]
In this essay, my primary aim was to illuminate the significance of the place of ḥudūd laws in the modern Iranian criminal legal system through its most salient constitutional and legislative provisions, which is run by theocrats, without delving into the broader implications or complexities surrounding the issue. However, I anticipate that some readers may question under what circumstances the implementation of ḥudūd could be suspended or abolished—which is a question I discuss in a forthcoming essay in this series.
Notes:
[1] Mohammad H. Tavana, “Three Decades of Islamic Criminal Law Legislation in Iran: A Legislative History Analysis with Emphasis on the Amendments of the 2013 Islamic Penal Code,” The Journal of Islamic and Middle Eastern Law 2, no. 9 (2014): 26–27.
[2] Ibid., 29.
[3] Taʿzīr is a category of punishment in Islamic criminal law that refers to discretionary penalties imposed by a judge or ruler for offenses that do not fall under the traditional categories of fixed punishments (ḥudūd), retaliation (qiṣāṣ), or blood money (diya). Unlike ḥudūd punishments, which are understood to be divinely prescribed and fixed in the Qur’ān or ḥadīth, taʿzīr punishments are not explicitly defined in the primary sources and are left to the discretion of the judge or state authority, depending on the nature of the offense, the context, and the intent of the offender. See Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty- First Century (Cambridge University Press, 2005), 65–67.
[4] Tavana, “Three Decades of Islamic Criminal Law Legislation in Iran,” 29.
[5] Ḥudūd are the fixed crimes and punishments in Islamic law for certain serious offenses, which jurists assert are explicitly defined in the Qur’ān and ḥadīth (although not all are so defined). The punishments are considered the “limits set by God” and are not subject to judicial discretion, though their application requires strict evidentiary standards. It is important to note, however, that there has been considerable debate among Muslim scholars regarding whether all ḥudūd punishments are explicitly specified in the Qurʾān or ḥadīth, as well as how these crimes should be interpreted. A notable example of this debate concerns a beer-like drink called nabīdh. As Intisar Rabb insightfully observes, the controversy centered on ambiguities surrounding the Qurʾānic prohibition of wine (khamr), raising the broader question of whether the prohibition applied strictly to wine alone or extended to all intoxicants.
See Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge University Press, 2014), 144–48. Qiṣāṣ refers to the law of retaliation in kind, primarily for cases of murder or bodily injury. It is based on the principle of “an eye for an eye.” The victim or their family has the right to seek retribution equal to the harm done, but they also have the option to forgive the offender, often in exchange for blood money. See Peters, Crime and Punishment in Islamic Law, 53–65, 44–49.
[6] Hussein Gholami and Bahman Khodadadi, “Criminal Policy as a Product of Political and Economic Conditions: Analyzing the Developments in Iran since 1979,” Zeitschrift für die gesamte Strafrechtswissenschaft 128, no. 2 (2016): 122.
[7] Ibid.
[8] Ibid., 119, 122, 125.
[9] See Ziba Mir-Hosseini, “Hijab and Choice: Between Politics and Theology,” in Innovation in Islam: Traditions and Contributions, ed. Mehran Kamrava (University of California Press, 2011), 190; Bahman Khodadadi, On Theocratic Criminal Law: The Rule of Religion and Punishment in Iran (Oxford University Press, 2024), xxv.
[10] Khodadadi, On Theocratic Criminal Law, xvi.
[11] The same provision is included in laws of other Muslim countries, such as Afghanistan (Article 130 of the 2004 Constitution), Egypt (Article 32 of the Civil Code), and Qatar (Article 1 of the Civil Code). See Abdullah Karim Abdullah, “The Influence of Islamic Sharia on Arab Constitutions and Civil, Commercial and Family Legislation: Comparative Arab Experiences,” Journal of Constitutional Law in the Middle East and North Africa 2 (2021): 64–84.
[12] See Silvia Tellenbach, “The Concept of Legality in the Iranian Legal System,” in Iran Human Rights Review: Justice, ed. Tahirih Danesh and Hadi Enayat (Foreign Policy Centre, 2014), 25–26; Silvia Tellenbach, “The Principle of Legality in the Iranian Constitution and Criminal Law,” in The Rule of Law, Islam and the Constitutional Politics in Egypt and Iran, ed. Said Amir Arjomand (New York University Press, 2013), 101–22; Mohammad Habibzadeh, “Legality Principle of Crimes and Punishments in Iranian Legal System,” Journal of Educational Research and Review 1, no. 3 (2005): 108–14. It is worth noting that Shīʿī scholars developed a prominent juridical principle—“The Indecency of Punishment Prior to the Expression of Law” (Qubḥ al-‘iqāb bilā bayān)—based on interpretations of several Qur’ānic verses (e.g., 17:15; 26:208; 28:59) and transmitted narratives. See, for example, Mohammad Kazim Khorasani, Kifāyat al-uṣūl (Muʾassasat Āl al-Bayt, 1988), 343. This principle can be regarded as the Islamic legal equivalent of the nulla poena sine lege doctrine in Western legal thought.
[13] Alireza Milani, Negareshi bar asl-i qānuni budan-e jarāyem wa-mojāzāthā (Mizan Press, 2007).
[14] See, for example, See Tellenbach, “The Concept of Legality in the Iranian Legal System”; Tellenbach, “The Principle of Legality in the Iranian Constitution and Criminal Law”; Mohammad Habibzadeh, “Legality Principle of Crimes and Punishments in Iranian Legal System”; Gudarz Eftekharjahromi, “Asl-i qanuni budan-i jarāyem va mojāzathā va tahavolat-i ān,” Majale-yi tahqiqāt-i hoquqi 2, no. 125 (1990): 79–102; Ali Mohamadian, “Asl-i 167 qānun-i asāsi va emkānsanji-yi sodour-i hokm bar asās-i fatvā-yi akhaf,” Majale-yi pazhuhesh-i hoquq-i keyfari 11, no. 2 (2021): 221–41.
[15] See, for example, Mohammad Habibzadeh, “Legality Principle of Crimes and Punishments in Iranian Legal System,” 108–14; Mohammad Akhundi, Ayin-i dādrasi-yi keyfari, vol. 1 (Vezārat-i farhang va ershād-i Islami, 1994), 115; Naser Katuzian, Moghadame-yi elm-i hoquq (Sherkat-i enteshār, 1992), 233.
[16] Iraj Golduziyan, Hoquq-e jazā-ye omumi-ye Iran, vol. 1 (Daneshgāh-e Tehran Press, 2007), 213.
[17] See Bahman Khodadadi, “‘Nowhere but Everywhere’: The Principle of Legality and the Complexities of Judicial Discretion in Iran,” Iranian Studies 57, no. 4 (2024): 651–70, https://doi.org/10.1017/irn.2024.23.
[18] In the 1991 version of the Islamic Penal Code, the offenses of baghy (rebellion), muḥāraba (armed action causing fear/insecurity), and ifsād fī al-arḍ (corruption on earth) were not treated as distinct crimes; rather, they were collectively addressed under the broader categories of muḥāraba and ifsād fī al-arḍ, without clear differentiation between them. The 2013 revision of the Penal Code rectified this ambiguity by explicitly classifying these as three separate offenses. Furthermore, under the 1991 legislation, one type of homosexual activity (tafkīdh) was associated with another (liwāṭ) but carried a separate legal punishment. The offense of sabb al-nabī (insulting the Prophet) was also not recognized as a ḥadd crime in the 1991 Code. Instead, it was addressed in the fifth book of the Islamic Penal Code—Taʿzīrāt (Discretionary and Deterrent Punishments, 1996)—though without specific legal provisions defining its elements or stipulating its punishment. In contrast, the 2013 Penal Code explicitly enumerates twelve crimes that the Code categorizes under the ḥudūd category—the first five of which relate to illegal sex acts: zinā, liwāṭ, musāḥaqa, tafkhīẓ, qawād, qadhf (false accusation of illicit sexual penetration); and the remainder of which refer to other serious crimes: consumption of intoxicants (muskirāt), theft (sariqa), sabb al-nabī, baghy, muḥārabah, and ifsād fī al-arḍ. The 1991 Code, by comparison, listed only the following as ḥudūd crimes: zinā, liwāṭ, musāḥaqa, qawād, qadhf, muskirāt, sariqa, baghy, muḥāraba, and ifsād fī al-arḍ. Therefore, the formal classification of baghy (Article 287), ifsād fī al-arḍ (Article 286), sabb al-nabī (Article 262), and tafkhīdh (Article 235) as independent ḥudūd offenses was only fully codified in the 2013 version of the Penal Code.
[19] Khodadadi, On Theocratic Criminal Law, 122–26. See the scholarly works in the Special Issue on “Moratoriums on Islamic Criminal Punishments: Legal Debates and Current Practices,” in Journal of Islamic Law (forthcoming).
[20] Khodadadi, On Theocratic Criminal Law, xxviii; Said Amir Arjomand, “Islamic Constitutionalism,” Annual review of Law 3, no. 1 (2007): 125–29; Rabb, Doubt in Islamic Law, 20; Intisar A. Rabb, “The Islamic Rule of Lenity: Judicial Discretion and Legal Canons,” Vanderbilt Law Review 44, no. 5 (2021): 1315–16.
[21] Abdoreza Bojnordi et al., “Religion and Punishment in the Post-revolutionary Iran from the Durkheimian Perspective,” Crime, Law and Social Change 80, no. 5 (2023): 38–42.
[22] Khodadadi, On Theocratic Criminal Law, 9–13; Nader Entessar, “Criminal Law and the Legal System in Revolutionary Iran,” Boston College Third World Law Journal 8 (1988): 91; Jamshid Behnam, “Negahi dobare bar mas’aley-i tajadod,” The Quarterly Journal of Iran Name 18, no. 2 (2000): 30–31.
[23] Mohammad H. Fadel, “Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights Law,” Chicago Journal of International Law 8, no. 1 (2007): 5, n.13.
(Suggested Bluebook citation: Bahman Khodadadi, The Ascendancy of Fixed Islamic Corporal Punishments in Shīʿī Theocracy, Islamic Law Blog (May 16, 2025), https://islamiclaw.blog/2025/05/16/the-ascendancy-of-fixed-islamic-corporal-punishments-in-shi%ca%bfi-theocracy/)
(Suggested Chicago citation: Bahman Khodadadi, “The Ascendancy of Fixed Islamic Corporal Punishments in Shīʿī Theocracy,” Islamic Law Blog, May 16, 2025, https://islamiclaw.blog/2025/05/16/the-ascendancy-of-fixed-islamic-corporal-punishments-in-shi%ca%bfi-theocracy/)