The right not to be punished; its Nature and Existence

AbstractThe concept of "right" has always been discussable and controversial during the time. Therefore the nature and existence of the "right not to be punished" are often discussed as challengeable issues among philosophers. The discussion has become more serious between proponents and opponents of the aforementioned right especially in the last few decades. Through a descriptive-analytical method (library study), this article, while studying the nature of the right not to be punished, from the perspective of both natural and positivist (positive) approaches, examines the existence or non-existence of this right in the perspective of its proponents and opponents. Our research found that the “right not to be punished” is as the type of “conditional negative claim-right” that the proponents of natural rights, justifies its existence. while positivists do not believe such a right. Even they are talking about “the right to be punished” and the government,s duty to punish criminals. of course, the number of philosophers who agree with the “right not to be punished” and the reasons for their justification is less than the number of philosophers who oppose it; But these same justifiable reasons (the proponents) are more in line with the approach of natural law, moral theories of punishment, human dignity and the principle of criminal law as last and least resort. Generally, “the right not to be punished” does not mean never to be punished, but to impose a corrective, dignified, minimal and, necessary punishment on the offender.