Judicial Constructivism and Its Effects on Iran’s Judicial Criminal Policy: Causes and Consequences

Abstract

Criminal policy in Iran, due to its multi-source legal structure and the prominent role of the judiciary, is influenced by judicial interpretation and meaning-making to a greater extent than in many other legal systems. Judicial constructivism, as an approach that emphasizes the active role of judges in producing meaning, developing criminal concepts, and regulating practical procedures, constitutes one of the fundamental elements shaping Iran’s criminal policy. The purpose of this study is to explicate the theoretical foundations of constructivism, analyze the manner of its manifestation in judicial decisions, and examine its effects and consequences on the country’s criminal policy. The present study has been conducted using a descriptive–analytical method based on documentary research. The theoretical sources of constructivism, selected judicial decisions, criminal law doctrines, and jurisprudential principles have been analyzed and classified within a coherent theoretical framework. The data have been interpreted through qualitative analysis and theoretical conceptualization. The findings indicate that criminal reality in Iran is, to a significant extent, constructed within the judicial process. Statutory interpretation, identification of instances, development of concepts, evaluation of evidence, and the formation of judicial practices constitute the main manifestations of judicial construction. Particularly in the field of emerging crimes and legislative gaps, judges play a decisive role in the production and completion of meaning. This process entails dual consequences: on the one hand, it enhances the dynamism, flexibility, and efficiency of criminal policy; on the other hand, it entails the risk of excessive expansion of judicial discretion, inconsistency in judicial practices, and challenges to the principle of legality of crimes and punishments. Judicial constructivism is an unavoidable yet influential phenomenon in Iran’s criminal policy. Managing and guiding this process through strengthening judicial training, developing unifying judicial practices, enhancing the transparency of judicial reasoning, and formulating interpretive guidelines is a necessary condition for the realization of criminal justice and the enhancement of criminal policy effectiveness.