Comparative Criminal Law and Enforcement: Islam - Discretionary Punishment (ta'zir)
Law Library - American Law and Legal InformationCrime and Criminal LawComparative Criminal Law and Enforcement: Islam - Hadd Offenses, False Accusation Of Unlawful Intercourse (kadhf ), Drinking Of Wine (shurb), Theft (sariqa)
Discretionary punishment (ta'zir)
Ta'zir developed in the early Islamic empire of the Umayyads (A.D. 661–750) and grew out of the discretionary punishments the qadi imposed when he was part of the imperial bureaucratic apparatus.
The objectives of the punishment were prevention of the recurrence of the crime, deterrence to others, and reform of the guilty party. The judge attempted to accomplish those objectives by varying the punishment according to the circumstances of the case, of the convicted party, and of society. Consequently, acts of reparation and repentance by the offender are relevant to a judge's sentence. So also are interventions made before the court on behalf of the offender; though such interventions are forbidden in cases dealing with hadd offenses.
The punishments cover a range of severity:
- • private admonition to the guilty party, sometimes by letter;
- • public reprimand in court;
- • public proclamation of the offender's guilt;
- • suspended sentence;
- • banishment;
- • fine;
- • flogging;
- • imprisonment; and
- • death.
The general rule in all of the schools, except the Maliki, is that no punishment in ta'zir can exceed a hadd penalty. Although the death penalty is to be used only in extreme cases, all the schools allow it.
The standard of proof is less strict than in cases of hadd: either a confession or the testimony of two witnesses is sufficient for conviction. In ta'zir, a confession is not retractable.
Offenses under ta'zir include perjury, usury, and slander. Many thefts, acts of unlawful intercourse, and false accusations of adultery that escape the rigorous rules under the hadd punishments can be dealt with under ta'zir. Selling wine may be punishable under this rule of discretionary jurisdiction.
For example, only under ta'zir can a non-Muslim be protected from the kadhf. Analogizing from adultery, jurists declare sodomy punishable by death, sometimes by stoning, but often with a public ignominy attached to the execution, such as being thrown from a high building or buried alive. As with adultery, four witnesses are required. Similarly, one who accuses another of homosexual acts or child molestation can be liable under kadhf. Bestiality, however, is not analogized with adultery because another person is not involved. The perpetrator, though not executed, is severely punished, and, in the Hanbali school, the animal is killed.
Because the central aspect of ta'zir is discretionary punishment by the judge, and because Islamic law categorizes offenses according to their penalties, there has never developed a rigorous code of penal offenses under ta'zir within the classical schools of law.
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