Deterrent Punishment according to Scholars and Contemporaries: Between Regulation and Leaving Discretion to the Judge's Interpretation

Abstract

This study examines an important topic, which is the issue of codifying disciplinary punishments and formulating them in terms that specify the type and amount of punishment for each legal violation that disturbs public order, which contradicts the principle of discretion in it and the intent of flexibility that makes it able to find appropriate solutions to eliminate various crimes, and tries to show the manifestations of the legalization movement These penalties, and the presentation of the opinions of jurists and contemporaries in the contradiction of the necessity of rationing and the disciplinary punishment and what these opinions are based on and its validity, and I have reached a set of results, the most important of which are: that rationing imposes itself as long as the judicial institutions suffer from neglect and the inability of judges to consider issues that need to be Jurisprudence, and that determining disciplinary punishments is not a product of the present era, as the Islamic heritage has preserved examples of it on which contemporary rationing can be built. It recommended a number of recommendations, the most important of which are: the need to maintain discretionary space in codifying these penalties in view of their flexibility; And the need to train judges to enable them to move within this jurisprudential space.