We discussed last week the type of offenses that carry ta’zeer or preventive punishments under Islamic law. We showed that it is wrong to imagine that the ta’zeer system gives a judge a wide-ranging authority to impose punishments at will. We concluded with advocating the need to establish a single legal code of ta’zeer offenses, or a number of specialized laws, so that both the judge and the community are very clear on what constitutes an offense and what sentence is to be given to a person who commits an offense.
Such a classification by the legislative authority in any Muslim country does not constitute an encroachment on the authority of God as the Legislator. It does not allow the legislative authority in the country to make lawful what God has forbidden, or to prohibit what He has made lawful. It is an exercise that aims to place all serious sinful actions that require preventive or deterrent punishments in a single code that defines offenses and their punishments. This is, then, an implementation of the basic principle requiring an advance statement of offenses and punishments, and a provision of safeguards in criminal law for individuals protecting their rights.
Furthermore, such a classification will outline actions that a Muslim community wishes to outlaw and specify preventive punishments for them, on grounds of the harm they cause to the community and its social, economic or political life. These actions are not clearly prohibited in the Qur’an or the Sunnah so as to be classified as sinful. All this comes under the duty of enjoining what is right and forbidding what is wrong. It is also lawful under the provisions that make it necessary to endeavor to establish rulings that safeguard the needs that Islamic law means to meet and protect. The clearest of these are those defined by Islamic jurists as the five main necessities, namely man’s faith, self, mind, offspring and property.
Scholars have undertaken detailed and basic studies of high importance in outlining the legal policy that is permissible or incumbent on the government and its competent departments in an Islamic state. The sum up of these studies is that an Islamic government is entitled to issue any necessary legislation to provide what serves the interests of the Muslim community when such issues are not outlined in the Qur’an or the Sunnah. If such legislation relates to criminal law, making certain actions or omissions punishable legal offenses, they will fall under the preventive code. They should be established on the basis of the general rules and principles of this code.
In addition to all this, such a classification will serve as a list of crimes and punishments in order to counter and prevent such crimes as are not dealt with by traditional punishment.
Classifying ta’zeer offenses will also make sure that many such precautionary measures will not constitute any administrative or financial burden on the executive authority. Indeed they are carried out by the defendant or his close community, as in the case of a judgment of separation, or fasting for a certain period, or paying a specified amount to charity, or similar precautionary measures that may be derived from Islamic law.
There is no doubt that the ta’zeer system has been developed by eminent scholars over many generations. Contemporary scholarship should develop it further so as to make it more suitable for present day needs and methods of promulgating laws and issuing rules and regulations. Thus we will be able to accept, on the basis of clear evidence, from the greatly rich and varied heritage of Islamic legal scholarship, what serves our interests and suits our circumstances, while leaving out, on similarly clear basis, what is unsuitable. This applies to every generation. Perhaps this ta’zeer system is one of the more important proofs of the flexibility of Islamic law and its ability to develop while continuing to provide the basis for new legislation and law making.
We need to say a word now on the rules governing proof in criminal offenses under Islamic law. Some writers describe these rules as a straightjacket leaving no room for the judge to compare different types of evidence and build his ruling on what is more solid and valid. They claim that justice in Islamic law is restricted by certain types of evidence which must be present for the judge to give a ruling. He cannot judge on the basis of any other type of evidence, no matter how valid it may be. He simply cannot admit such evidence as a proof of guilt.
Such writers always point to the requirement of having two men witnesses or one man and two women in all disputes, while requiring four men witnesses in the case of adultery.
The truth is that under the Islamic system, a judge rules according to what he ascertains, completely or to a large extent, to be the truth, whether this is proved through witnesses or some other proofs. Indeed he may make his ruling on the basis of such other evidence, whether it is of the types mentioned in the Qur’an and the Sunnah or not, and whether stated by scholars or not.
It is also true that, under Islamic law, a judge may not rule on the basis of what witnesses state if he ascertains through some other, more valid way that what such witnesses state to have happened has not taken place. Take, for example, the case of four men testifying against a certain woman and stating that she has committed adultery. The judge, nevertheless, finds out in some other way that the woman is a virgin. In such a case, it is not right for the judge to say that since he has four witnesses, which meets the requirements, then his ruling must be based on it and punishment inflicted. Indeed the judge must in such a case rule that the woman is innocent and he must punish the witnesses as guilty of a false accusation of adultery.
This means that under Islamic law, a judge must weigh up the evidence presented to him in the case he is judging. He must take into consideration all the relevant facts and what import they may have. He may not pronounce that the accused is guilty unless he is convinced that his ruling is true, proved by the evidence submitted to him.
We will refute the claim that the judge must accept as proof only two men witnesses or one man and two women. But we will leave this till next week, God willing.