Ethical Challenges of Criminalizing Action against the Government; with an Approach to Islamic Law

Document Type : Original Article

Author

Assistant Professor, Department of Law, Faculty of Literature and Humanities, Malayer University, Iran, Malayer

10.22091/dclic.2026.14956.1140

Abstract

Legislators, in the process of criminalization - which is the use of penal instruments to achieve specific objectives - may find themselves in the dilemma of “the end justifies the means.” This risk is manifested in the criminalization of actions against the government more than other offenses; because the government, by using punishment to preserve itself, is in the midst of using punishment as an instrument, or penal Machiavellianism, or the separation of ethics from penal policy. This study, using a descriptive–analytical method, demonstrates that the common justifications for criminalizing such offenses include divine sovereignty, the sovereignty of perfect reason, natural sovereignty, consent, the ethics of responsibility and the rule of maintaining the system (ḥefẓ al-niẓām). Among these, the most ethical justification is a combination of the theory of the ethics of responsibility and a different reading of the rule of maintaining the system, which requires that only behaviors be criminalized that, firstly, cause "disruption" in the political system and pose a serious threat to its existence; secondly, criminally confronting that behavior is "necessary" to fulfill the responsibility of governing society and maintaining its existing order and organization; thirdly, the penal response given by the law must be “proportionate” to the disruption caused. Otherwise, criminalization would be immoral. A look at the list of crimes in Iranian criminal laws indicates that there are some instances of this type of criminalization, which makes it necessary to review them.

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Criminal Law Doctrines of Islamic Countries
Volume 3, Issue 2 - Serial Number 10
Summer 2026
June 2026
Pages 98-124

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