Max Planck Institute for Foreign and International Criminal Law

To date, comparative criminal law research on western and Islamic (criminal) law has focused primarily on statutory provisions alone. Without an analysis of the basic values underlying these provisions, however, such comparative criminal law research remains superficial. Because there are fundamental differences between Islamic and western criminal law, these basic values must first be identified and compared, so that the differences at the statutory level can be traced back to these basic values and explained.

In this context, a value-oriented comparative criminal law analysis of a western criminal law system (Germany) and an Islamic criminal law system (Iran) can benefit future comparative legal research. Apart from a few general descriptions of the two legal systems, sufficient basic research of this type has not been conducted in either Germany or Iran.

Hence, the goal of this project is the identification, comparative analysis, and description of the fundamental axioms, value measures, and techniques that differentiate western and Islamic criminal law. Such fundamental, underlying principles are, for example, the concept of the state governed by the rule of law, which in Islamic criminal law – in contrast to secular, western criminal law – is characterized as a theocracy; the concept of human rights, which in Islamic criminal law is not influenced by humanism, as it is in the west, but by religious rules; and the purpose of criminal law, which in Islamic criminal law is seen not only in the protection of society and of individual liberty but also in the protection of religious values.

In order to achieve this goal, the project first addresses the question of which common theoretical and applied basic values are formative for criminal law as a whole in the two legal systems. Then the question of how these basic values can be analyzed and described in a coherent system is raised. The final questions to be answered include the extent to which these basic values are comparable and what similarities and differences they evince.

In order to address these issues, the project employs a systematic, comparative criminal legal methodology that focuses on the comparison of values and structures in order to facilitate the identification of the fundamental constitutional and philosophical values in both legal systems, the systematic definition of their underlying similarities and differences, and their structural analysis.

The research is divided into three main steps: introduction, main investigation, and conclusion. The main investigation, which is divided into two parts, distinguishes between fundamental theoretical values and fundamental applied values. Eight different fundamental values are examined and compared in these two categories. The study of each of these eight fundamental values includes an interim result. The conclusion consists of an analysis and summary of these interim results.

The basic research conducted in this project offers a basis for future comparative criminal legal research and promotes the mutual understanding that is an indispensible prerequisite for the urgently needed tolerance and future communication between the two legal cultures. Furthermore, it is hoped that the project will contribute to the analysis of both shared legal problems and of meta-level structures of a universal criminal jurisprudence that transcends national legal systems.

This project is a dissertation supervised by Prof. Dr. Ulrich Sieber at the University of Freiburg.