Comparative Analysis of Modern Criminal Law Principles in Rawls's Theories of Justice and Rousseau's Social Contract

Document Type : Original Article

Authors

1 Master's degree, Criminal Law and Criminology, Bandar Abbas Branch, Islamic Azad University, Bandar Abbas, Iran

2 Assistant Professor, Department of Philosophy , Bandar Abbas Branch, Islamic Azad University, Bandar Abbas, Iran

Abstract

The aim of the current study is to conduct a comparative analysis of modern criminal law principles based on John Rawls's theories of justice and Jean-Jacques Rousseau's social contract, as well as to show how these views can lead to the development of a more just and effective legal penal policies and law. By examining the views of Rousseau and Rawls, and analyzing their theoretical foundations in order to strengthen contemporary penal policies, it will be regarded how these views can be used to guarantee the rights of the accused, maintain public order, and increase the effectiveness of punishments. The research method hired here, is analytical-comparative. First and foremost, the fundamental principles of modern criminal law, such as innocence, the legality of crime and punishment, criminal actions and proceedings, the proportionality of crime and punishment, the personal nature of punishment, and the individualization of punishment, are examined and then analyzed from the perspectives of two prominent theorists, Rousseau and Rawls. This comparative method allows for a better understanding of the differences and similarities between these two approaches and their impact on modern legal penal policies. The findings of the study show that despite the differences in approach, both theories emphasize the preservation of the fundamental principles of criminal justice. Rousseau, through the concept of "general will", considers punishment as an essential mean for maintaining social order and implementing collective justice as the end , while Rawls, based on the theory of justice as fairness, emphasizes the necessity of designing a penal system that causes minimal harm to individual rights and ensures equal opportunities. Rousseau's theory emphasizes more on social cohesion and the legitimacy of punishment through collective agreement, while Rawls's theory attempts to create a balance between individual freedoms and social obligations. Meanwhile, the analysis of the fundamental principles of criminal law from the perspective of these two philosophers shows that some of these principles are commonly endorsed by them, but they are accompanied by differences in the way they are implemented and theoretically justified. The principles of modern criminal law, including the principle of innocence, are consistent with Rawls's theoretical foundations regarding the guarantee of the rights of the accused and the principle of difference, while the principle of the legality
of crime and punishment is consistent with Rousseau's view of the need to establish laws based on the public will. Also, the principle of proportionality of crime and punishment
is confirmed in both theories, but Rousseau emphasizes its social aspects and Rawls emphasizes the dimensions of restorative justice and the reduction of social inequalities. At the same time, principles such as individualization of punishment, respect for human rights and human inherent dignity, and fair trial as human right are also in parallel with the intellectual foundations of these two thinkers, although there are differences in the way they are realized. Combining the teachings of these two distinct theories can lead to emerging a more efficient penal law in which principles such as justice, freedom, and proportionality
of punishment to the crime are observed at different levels of policy-making and
legal enforcement, and implementation. This results here, suggests that criminal law policymakers, inspired by the theories of Rousseau and Rawls, should act in a way that not only helps reduce crime and maintain public safety, but also takes into account individual rights and freedoms. Hiring the theoretical foundations of these two philosophers can be effective in the progress and evolution of the modern criminal law esp. penal one and finally the achievement of sustainable social justice.

Keywords

References

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Journal of Philosophy of Law
Volume 3, Issue 1
June 2024
Pages 167-192

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History

  • Receive Date: 10 January 2025
  • Revise Date: 23 January 2025
  • Accept Date: 18 January 2025

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