Tazir

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In Islamic Law, tazir (or ta'zir, Arabic تعزير) refers to punishment for offenses at the discretion of the judge (Qadi) or ruler of the state.[1] It is one of three major types of punishments or sanctions under Sharia Islamic law — hadd, qisas and tazir.[2] The punishments for the hudud offenses are fixed by the Qur'an or Hadith[3] (i.e. "defined by God"[4]), qisas allow equal retaliation in cases such as murder or injury, however ta'zir refers to punishments applied to the other offenses for which no punishment is specified in the Qur'an or the Hadith.[5][6]

Overview

The classical Islamic legal tradition did not have a separate category for criminal law as does modern law.[6] The classical Islamic jurisprudence typically divided the subject matter of law into four "quarters", that is rituals, sales, marriage, and injuries.[2] In modern usage, Islamic criminal law has been extracted and collated from that classical Islamic jurisprudence literature into three categories of rules:[2]

  • Hadd (literally "limit"[7]) under Sharia, are rules stated in the Quran and the Hadiths, and whose violation is deemed in Islam as a crime against God, and requires a fixed punishment. Hadd crimes include[8] theft (amputation of the hand), illicit sexual relations or rape (death by stoning or one hundred lashes), making unproven accusations of illicit sex (eighty lashes), drinking intoxicants like alcohol (eighty lashes), apostasy (death), and highway robbery (death).[5][9]
  • Qisas, (literally "retaliation in kind"[10]) and diyya, دية) ("blood money"), in Islamic jurisprudence, are the second category of crimes, where Sharia specifies equal retaliation (qisas) or monetary compensation (diyya[11]), as a possible punishment. Included in this category is homicide, for example, which Islamic law treats as a civil dispute between believers.[12] Qisas principle is available against the accused, to the victim or victim's heirs, when a Muslim is murdered, suffers bodily injury or suffers property damage.[13] In the case of murder, qisas means the right of a murder victim's nearest relative or wali (ولي) (legal guardian) to, if the court approves, take the life of the killer.[14]
  • Tazir (literally "to punish",[7] sometimes spelled as taazir, ti'zar, tazar, ta'azar) is the third category, and refers to offense mentioned in the Quran or the Hadiths, but where neither the Quran nor the Hadiths specify a punishment.[1][15] In Tazir cases, the punishment is at the discretion of the state, the ruler, or a qadi (kadi),[4][16] or court acting on behalf of the ruler.[2] Tazir punishment is for actions which are considered sinful in Islam, undermine the Muslim community, or a threaten public order during Islamic rule, but those that are not punishable as hadd or qisas crimes.[17] The legal restrictions on the exercise of that power are not specified in the Quran or the Hadiths, and vary.[5] Crimes punished by tazir do not require proof that hadd or qisas crimes require, such as four male Muslim witnesses. The judge enjoys considerable leeway in deciding an appropriate form of punishment, and the punishment does not have to be consistent across the accused persons or over time.[2][5] The ruler or qadi also has the discretion to forgive tazir offenses.[5]

Scripture

The word tazir is not used in the Quran or the Hadith, in the sense that modern Islamic criminal law uses it.[18] However, in several verses of the Quran, crimes are identified, punishment of the accused indicated, but no specific punishment is described. These instances led early Islamic scholars to interpret the Quran as requiring discretionary punishment of certain offenses, namely Tazir.[18] Example specific verses from the Quran that support taazir are,[18]

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And as for the two who are guilty of indecency from among you, give them both a punishment; then if they repent and amend, turn aside from them; surely Allah is Oft-returning (to mercy), the Merciful.

— Quran 4:16

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And (as for) those who dispute about Allah after that obedience has been rendered to Him, their plea is null with their Lord, and upon them is wrath, and for them is severe punishment.

— Quran 42:16

Examples of Tazir offenses

Tazir offenses are broadly grouped into two sub-categories in Islamic literature.[19] The first are those offenses that have the same nature but do not exactly meet the complete requirements of hudud crimes. Examples of such Tazir offenses include thefts among relatives, or attempted but unsuccessful robbery, attempted fornication witnessed by four male Muslims, and homosexual contacts such as kissing that does not result in fornication.[19][20] The second sub-category of Tazir offenses relate to offenses committed by an individual that violate the behavior demanded in the Quran and the Hadiths. Examples of the second sub-category include false testimony, loaning money or any property to another person for interest in addition to principal, any acts that threaten or damage the public order or Muslim community or Islam.[19][20]

The fourteenth century Islamic jurist Ibn Taymiyyah included any form of disobedience as a Tazir offense, and listed several examples where there is no legal penalty in Sharia:[21]

  1. the man who kisses a boy or a woman unrelated to him by marriage or a very near kinship;[21][need quotation to verify]
  2. the man who flirts without fornication;[21]
  3. the man who eats a forbidden thing like blood, or dead animal which suffers natural death, or meat that is slaughtered in an unlawful manner;[21]
  4. the man who steals a thing lying in open or one whose value is unclear;[21]
  5. the man who debases the commodities such as foodstuffs and clothes, or who gives short measure of capacity or weight;[21]
  6. the man who bears false witness or encourages others to bear false witness;[21]
  7. the judge who judges contrary to what Allah has enjoined;[21]
  8. the non-Muslim or Muslim engaged in espionage;[21]
  9. the nashiz woman who questions or is rude to her husband;[22][not in citation given]
  10. the man who questions Qadi's opinion or challenges the views of other Muslims;[21][need quotation to verify]

Numerous other offenses are included in Tazir category.[2][22]

Tazir punishments

Tazir punishments are common in Sharia courts for less serious offenses.[18] Punishments vary with the nature of crime and include a prison term, flogging, a fine, banishment, and seizure of property. Execution is allowed in cases such as habitual homosexuality, practices which split the Muslim community, propagating heretical doctrines or espionage on behalf of an enemy of the Muslim state.[18][23][24] All four schools of fiqh (Madhhab), namely Hanafi, Maliki, Shafii and Hanbali, permit the death penalty at the discretion of the state or Qadi, for certain Tazir offenses. But traditionally Ta'zir often varied between schools of fiqh. Insolvent debtors were generally required to sell their goods, but a Hanafite judge would send the defendant to jail until their creditors were paid, for example.[25][26] Hanafite and Shafi'ite fiqh allowed a judge sometimes to "rely on information personally acquired instead of independent testimony" -- even in cases where the defendant faced capital punishment.[27][26] Judges would use the difference in fiqh to the advantage of prosecution and disadvantage of the defendant. Malakite fiqh allowed for beating during interrogation if the defendant had a "bad reputation", and "an expansive approach to capital punishment" compared to other schools. At least during the fourteenth century non-Malakite judges "often" sent defendants to Malakite judges.[28] [26]

Contemporary application

In some Islamic countries, such as Pakistan, rape is being treated as liable to Tazir.[29] For Tazir punishment for rape, the Pakistan law requires evidence that the woman resisted, that there is semen present on the woman, and that the man is potent; if the evidence confirms all these three requirements then the Tazir punishment under the Pakistan law is a fine, thirty lashes and/or imprisonment for up to 10 years for the convicted.[29] In cases, where the judge discretionarily decides that the evidence is insufficient, the rape victim can be tried on charges of false accusation, under both hadd and tazir rules of Pakistan law.[29][30]

Brunei introduced Tazir into its Syariah Penal Code Order effective 2014. Tazir crimes in Brunei now include offenses such as failing to perform Friday prayers by anyone above 15 years old, any Muslim disrespecting the month of Ramadan, and khalwat (dating or any form of close proximity between unrelated members of opposite sex).[31]

Iran introduced Tazir into its legal code after the 1979 Revolution, naming the section as Qanon-e Tazir. These Tazir laws allow prosecution of offenses such as illicit kissing, failing to wear proper head dress such as hejab, and making critical statements against judges and members of the Council of Guardians.[32]

See also

Further reading

References

  1. ↑ 1.0 1.1 Tazir Oxford Islamic Studies, Oxford University Press
  2. ↑ 2.0 2.1 2.2 2.3 2.4 2.5 Mark Cammack (2012), Islamic Law and Crime in Contemporary Courts, BERKELEY J. OF MIDDLE EASTERN & ISLAMIC LAW, Vol. 4, No.1, pp. 1-7
  3. ↑ "Hadd" Oxford Islamic Studies
  4. ↑ 4.0 4.1 Lua error in package.lua at line 80: module 'strict' not found.
  5. ↑ 5.0 5.1 5.2 5.3 5.4 Lua error in package.lua at line 80: module 'strict' not found.
  6. ↑ 6.0 6.1 Wael Hallaq (2009), SHARI’A: THEORY, PRACTICE, TRANSFORMATIONS, Cambridge University Press, ISBN 978-0521678742, pp. 309, 551-558
  7. ↑ 7.0 7.1 Lua error in package.lua at line 80: module 'strict' not found.
  8. ↑ "Hadd" Oxford Islamic Studies, Oxford University Press
  9. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  10. ↑ Mohamed S. El-Awa (1993), Punishment In Islamic Law, American Trust Publications, ISBN 978-0892591428
  11. ↑ Christie S. Warren, Islamic Criminal Law, Oxford University Press, Qisas
  12. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  13. ↑ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill Academic, ISBN 978-9004172258, pp. 12-13
  14. ↑ Encyclopedia Britannica, Qisas (2012)
  15. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  16. ↑ "Qadi" Encyclopædia Britannica
  17. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  18. ↑ 18.0 18.1 18.2 18.3 18.4 Lua error in package.lua at line 80: module 'strict' not found.
  19. ↑ 19.0 19.1 19.2 Criminal Law in Islam, The Oxford Encyclopedia of the Islamic World, Oxford Islamic Studies, Oxford University Press (2013)
  20. ↑ 20.0 20.1 Lua error in package.lua at line 80: module 'strict' not found.
  21. ↑ 21.0 21.1 21.2 21.3 21.4 21.5 21.6 21.7 21.8 21.9 Lua error in package.lua at line 80: module 'strict' not found.
  22. ↑ 22.0 22.1 Lua error in package.lua at line 80: module 'strict' not found.
  23. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  24. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  25. ↑ Ibn Rushd, Distinguished Jurist's Primer: A Translation of "Bidayat al-mujtahid.", Translated by Imran Ahsan Khan Nyazee. Reading, 1994-6, 2:341-42
  26. ↑ 26.0 26.1 26.2 Lua error in package.lua at line 80: module 'strict' not found.
  27. ↑ Baber Johansen, "Signs as Evidence: The Doctrine of Ibn Taymiyya 1263-1328) and Ibn Qayyim al-Jawziyya (d.1351) on Proof", Islamic Law and Society, v.9, n.2 (2002), pp.175-76, 177-78
  28. ↑ Rapport, Yossef "Legal Diversity in the Age of Taqlid: The Four Chief Qadis Under the Mamluks", Islamic Law and Society, v.10, n.2 (2003), p.221
  29. ↑ 29.0 29.1 29.2 Lua error in package.lua at line 80: module 'strict' not found.
  30. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  31. ↑ Lua error in package.lua at line 80: module 'strict' not found.
  32. ↑ Lua error in package.lua at line 80: module 'strict' not found.
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