We proved in our previous article that it is wrong to assume that preventive punishment, or ta’zeer, as it is called in Islamic law, does not rely on clear evidence from the Qur’an and the Sunnah, as it is commonly believed. We mentioned that ta’zeer provides a system to ensure legal protection of Islamic society, as it prescribes punishment for actions that are either sinful or determined by the legislative authority to expose the social, economic, political or other systems to serious risks. At the same time, ta’zeer allows society to ensure the maximum benefit from putting in place protective measures and improvements.
We will discuss today a similarly common but mistaken notion which describes ta’zeer as “a wide-ranging authority given to the judge to penalize whomever he wishes, as he pleases, for whatever deed he considers to deserve punishment.” This statement is taken from what the late renowned scholar, Sheikh Mahmood Shaltoot, the former Rector of Al-Azhar, had written.
To give such an unrestricted authority to a judge is unknown in criminal systems. Stated in such a general form, it contradicts a rule that Islamic jurisprudence has held ahead of all legal systems in the world, namely that: “No crime and no punishment are acknowledged unless legally defined.”
Although Sheikh Shaltoot’s definition expresses a commonly held notion among Islamic scholars, a careful look at the details of Islamic law is bound to reject this definition, showing that Islam does not give any judge any such authority. All Islamic schools of law agree that no judge has the authority to define crime or punishment at will. He must look carefully at every case in the light of the evidence required by the law and the means and procedure of proof outlined in Fiqh methodology and legal codes.
The role of the judge is to ensure what serves public interest, as defined by Islamic scholars. If he is to determine punishment for a ta’zeer case, then the ta’zeer principles, derived, as we explained last week, from the Qur’an, require the judge to make his sentence suitable to the circumstances of the crime committed and the offender. Otherwise, his judgment would constitute “a transgression and a breach of unanimity”, as stated by Imam Al-Qarafi.
A judge in Islamic law does not penalize “as he pleases.” He determines punishment according to what is stated in Islamic law, and ensures that the punishment he decides does not contravene any general rule that applies to crime and punishment in Islamic law. Furthermore, he determines the punishment that is most suited to the offense committed by the offender, taking into consideration social conditions and the personal, social and psychological circumstances of the offender. When pronouncing his sentence, a judge feels that imposing such a punishment makes the offender unlikely to commit a similar crime in future.
Taking social conditions into account means that the punishment should be conducive to deterring potential offenders from committing the same offense.
Nor is it correct to say that under ta’zeer a judge pronounces sentences “for whatever deed he considers to deserve punishment.” Indeed, to say so represents a clear violation of the principles of Islamic criminal law which defines offenses into three categories: the first two carry mandatory or retaliatory punishments. Both of these are specified and their punishments also clearly specified in religious texts.
The third type carries ta’zeer punishments. Included under this type are sinful actions and deeds that are harmful or injurious to individuals or to the community, with no punishment, atonement or indemnity specified for them. These offenses may be of the type that carries a mandatory punishment but the conditions for its infliction have not been met, or some other sin clearly forbidden in the Qur’an or the Sunnah, or some other action made illegal by a competent legislative authority, defining for it a punishment that the judge should impose.
Furthermore it is wrong to say that ta’zeer gives the judge the authority “to penalize whomever he wishes.” A judge only punishes an offender who has committed a ta’zeer offense after a fair trial in which adequate evidence is presented to prove that he is guilty as charged. It is certainly unfair to describe this procedure as giving a judge the authority “to penalize whomever he wishes.” To say so is to accord the judge a tyrannical and arbitrary authority that cannot be approved by Islamic law, modern legal and political systems or international human rights conventions endorsed by most if not all Muslim countries.
Ta’zeer punishments are inflicted on those who commit sinful actions that are prohibited by Islam. These sins come under different headings in Islamic law. Hence, scholars have used very general terms in describing the authority given to judges in determining their punishment.
However, contemporary ijtihad on the implementation of Islamic law makes it necessary to formulate a single complete code defining ta’zeer offenses, or to draft them in a suitable number of specialized laws, so that both the judge and the community are very clear as to what constitutes an offense and what sentence is to be given to a person who commits an offense.
We will develop this last point further next week, God willing.
