الضرورة والتناسب في التجريم والعقاب : دراسة مقارنة == Necessity An D Proportionality In Criminalization And Punishment A Comparative Study
Author name:
محمد حميد عبد
Supervisor name:
محمد علي سالم جاسم الاسدي
General topic:
Law
Specific topic:
Criminal Law
Degree:
Doctorate
University:
University of Babylon - Faculty Of Law - Department Of Public Law
Language:
Arabic
University location:
Babylon
Key words:
- فلسفة التجریم والعقاب
- سیاسة الحد من التجریم والعقاب
- القاعدة الجنائیة
- نطاق سلطة المشرع في التجریم والعقاب
First pages:
13T1571 - p.pdf
Abstract:
When we study the general authority of criminalization and punishment , especially when we focus on the basis that the legislature depend on them when practice its discretion in criminalization and punishment , we need to study two important doctrines , which are the doctrine of necessity and the doctrine of proportionality.To deal with the aspects which relate to those two doctrines , we divided this study into two parts. The first part deal with the semantic and the legal meaning of the necessity and proportionality. To clarify the meaning of those two concepts we search for their applications in Islamic jurisprudence , and convert to their applications in all legal aspects. In legal aspects we denoted to some provisions in constitutional legislations which mention the necessity and proportionality as an important doctrines to recognize the relation between the state and the citizens. Then we talk about the emergence of those two doctrines in the domain of Private Law especially in its principle branch which is Civil Law. In addition to that , we set up the applications of the necessity and proportionality in Administrative Law which produced several theories about the obligation on all the administrative branches to consider those two doctrines in their activity to do their tasks.The second part of this study is devoted to conceptual meaning and the different applications of the necessity an proportionality in Criminal Law.In this part we talk in details on the criteria of the legislature to preserve the necessity and proportionality in the domain of criminalization and punishment. We explore some examples on the ways of the legislature to make a balance between the individual liberties and the public interest and the means of the legislature to reach such a balance.To make such a balance between the individual liberties and public interest , the legislature have a legislative discretion , but this discretion is different in its level according to the kinds of the rights which constricted by the criminal statute.We clarified that the legislative discretion in the domain of criminalization and punishment is subject to the judicial review.And the level of the judicial review on this discretion is not the same. There is a strict scrutiny on this discretion when the criminal legislation deal with a fundamental right or liberty , otherwise , there is a minimal scrutiny. We search for those levels of judicial review in the comparative courts , in France , Egypt , and the Iraqi Supreme court. After the Almighty God help us to finish this study , we concluded several results , and produced some proposals , hoping that they will be useful for our legislature to achieve the doctrine of necessity and the doctrine of proportionality in the domain of criminalization and punishment to preserve the criminal justice.
