نوع مقاله : مقاله پژوهشی
نویسنده
دانشجوی دکتری، گروه فلسفه حقوق، دانشگاه باقرالعلوم(ع)، قم، ایران.
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
The purpose of the present research is to critically review the method of moral reasoning in criminalizing sextual behaviors. According to the research the direction of the aforementioned analysis in methodological aspect is general and can be converted to a debate not only in philosophy of law but also it can be generalized to all existing legal systems including Islamic law. In this regard, the research tries to point out its consequences by setting the criteria of Hart- Devlin debate and utilitarian attitude as a logical constant through a methodological approach and without any striking the point in content. The research is a fundamental study in criminal law philosophy, hiring the analytical philosophers’ method; therefore, has devoted the serious priority to exploring the concepts of “propositions” and then examined legal facts. In Hart-Devlin debate for the first time, methodological aspects of moral reasoning were discussed. The discussion left pure legal aspect aside and then followed the legal philosophy. The result of such division firstly, leaves a room for moral reasoning in liberal political theory, secondly reveals facts in criminalizing the sextual behavior. The aforementioned methodology indicates that the moral reasoning has rooted in moral theory at the level of moral philosophy and on the other side in political theory. Recent developments both at the level of moral theory esp. in sector of moral philosophy and political theory led to a change in the method of moral reasoning expression in criminal law; as well as “moral reasoning” used to avoid moral content previously and be considered impossible in practice , now on is viewed vital toward moral content; as a matter of the fact that criminalization only is possible through this way. The result of the moral reasoning definition regarding the new approach is called punitiveness in punishment enforcement law; and make a new relationship between punitiveness and moral reasoning meaningfully. In the meantime, Sharia- oriented approaches like jurisprudence requires more affinity with moral reasoning therefore it can be established a deep discourse between the jurisprudential reasoning and moral one o the basis of new account.
کلیدواژهها [English]
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