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Ta'zir

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Ta'zīr (Arabic: التَعْزیر) is a discretionary punishment for crimes for which no specific punishment is stated in Islam and it is left to the sharia ruler to specify its type and amount.

Ta'zirs are divided into jurisdictional (shar'i) and governmental. The former refers to punishments for the violations of jurisprudential rulings, such as committing what is forbidden or abandoning what is obligatory, and the latter refers to punishments for acting against governmental laws, such as hoarding.

Ta'zir includes any punishment that inhibits a criminal from repeating the criminal act. Thus, it includes punishments such as imprisonment, fines, and confiscation of one's property. However, some jurists maintain that ta'zir only includes physical punishments.

Definition

"Ta'zir" literally means to prohibit, to assist, and to punish.[1] In the jurisprudential terminology, it refers to punishments that inhibit the commitment of sins.[2] It is a sort of punishment that is not explicitly specified in shari'a,[3] and the specification of its type and amount is left to the sharia ruler or the judge.

Ta'zir is mainly discussed in the part of jurisprudence concerning hudud.[4] However, it was also discussed in other parts as well, such as fasting, hajj, transactions or businesses, and marriage. It is also associated with the issue of enjoining the right and forbidding the wrong. However, unlike enjoining the right, ta'zir is a type of punishment and can only be carried out by the sharia ruler.[5]

Difference with Hadd

Jurists have made distinctions between hadd and ta'zir, including the following:

  • The amount of hadd is specified in shari'a, but the specification of the amount and quality of ta'zir is left to the shari'a ruler. However, ta'zir should not outrun hadds for similar crimes.
  • Things such as the nature of the crime, how it is done, the criminal, the victim of the crime, the time, and the place affect the amount and the quality of punishments in ta'zir.
  • Ta'zir aims to punish and reform the criminal, but hadd aims to protect the common interests of the society.
  • Ta'zir will not be enforced after repentance, unlike some hadds.
  • Ta'zir can be forgiven, unlike hadd.[6]
  • Intercession and bails can be accepted in ta'zir, unlike hadd.[7]

Legitimacy

Some exegetes of the Qur'an have inferred the legitimacy of ta'zir from the implications of the verse, "And those who harm believing men and believing women for [something] other than what they have earned have certainly born upon themselves a slander and manifest sin"[8], because it blames people who harm Muslims who have not committed a sin. Thus, the verse implies that harming others, e.g. by way of carrying out the hadd and ta'zir, is permissible in case they have committed a crime.[9] Also, according to the verse 19 of Qur'an 24[Note 1], people who spread immorality about believers are said to deserve a painful punishment in this world. Some jurists believe that "painful punishment" here is ta'zir.[10]

Some jurists maintain that burning the golden calf of Samiri and throwing it into the sea by the Prophet Moses (a) was an instance of financial ta'zir.[11] Also, historical instances, such as the destruction of the Dirar Mosque at the command of the Prophet (s),[12] ousting Banu Nadir from their land and destroying their palm groves, and threatening the hypocrites and rumor-spreaders to banish them from Medina are instances of financial ta'zir during the Prophet's (s) time.

Also some jurists have claimed that the Prophet (s) and Imam 'Ali (a) had the tradition of performing ta'zir for people who abandoned a jurisdictional obligation or committed a forbidden action when there was no hadd for it.[13] According to Shiite hadiths, ta'zir is introduced as a punishment for some sins in different ways,[14] such as whipping,[15] imprisonment, and moving the person around the community.[16]

Scope

The scope of ta'zir is not restricted to jurisprudential rulings; rather it covers governmental punishments as well. Thus, ta'zirs are divided into the jurisdictional and the governmental.

Jurisdictional Ta'zir

A jurisdictional ta'zir is a sort of punishment that is enforced against people who violate jurisprudential rulings, such as abandoning an obligation or committing a forbidden action.[17] Some crimes that provoke jurisdictional ta'zirs include:

  • Illegitimate relations other than sexual intercourse (zina), such as kissing and sleeping together.[18]
  • Humiliating and desecrating others.
  • Cursing.[19]
  • Unfounded accusations.[20]
  • A theft in which the conditions of hadd do not obtain.
  • Masturbation[21]
  • A child's theft.[22]

Governmental Ta'zir

Punishments specified for people who violate governmental laws and regulations are called "governmental ta'zirs". Such ta'zirs include actions such as hoarding, overcharging in sales, and fraudulent dealings with regard to measures and weights.[23]

Ways of Punishment

There is a disagreement among jurists as to whether ta'zirs include any kind of punishment or it is restricted to physical punishments.[24] Some Shiite jurists maintain that ta'zir includes any punishment that inhibits a criminal from doing the crime again. Thus, ta'zir includes punishments such as imprisonment, fines, confiscations of one's property, public reproach, and banishment.[25] Some people believe that remarks by the majority of jurists and philologists imply that ta'zirs should be restricted to physical punishments.[26] Makarim Shirazi holds that people who have construed ta'zir as a physical punishment do not actually restrict it to such punishment; rather they take this sort of punishment to be the paradigm case of ta'zir.[27]

Notes

  1. Rāghib al-Iṣfahānī, Mufradāt alfāẓ al-Qurʾān, p. 564.
  2. Ibn Manẓūr, Lisān al-ʿArab, vol. 4, p. 561; Makārim Shīrāzī, Tafsīr-i nimūna, vol. 22, p. 42.
  3. Shahīd al-Thānī, Masālik al-afhām, vol. 14, p. 325.
  4. Shahīd al-Thānī, Masālik al-afhām, vol. 14, p. 325.
  5. Ṭāʾī, al-Taʿzīr fī l-fiqh al-Islāmī, p. 25.
  6. Shahīd al-Awwal, al-Qawāʿid wa l- fawāʾid, vol. 2, p. 142-144.
  7. Ṭāʾī, al-Taʿzīr fī l-fiqh al-Islāmī, p. 25.
  8. Qur'an, 33:58.
  9. Makārim Shīrāzī, Tafsīr-i nimūna, vol. 17, p. 423.
  10. Ardibīlī, Zubdat al-bayān, vol. 1, p. 387.
  11. Muntaẓirī, Dirāsāt fī wilāyat al-faqīh, vol. 2, p. 333.
  12. Muntaẓirī, Dirāsāt fī wilāyat al-faqīh, vol. 2, p. 334.
  13. Muntaẓirī, Dirāsāt fī wilāyat al-faqīh, vol. 2, p. 306.
  14. Kulaynī, al-Kāfī, vol. 7, p. 240.
  15. Kulaynī, al-Kāfī, vol. 7, p. 240.
  16. Ṣadūq, Man lā yaḥḍuruh al-faqīh, vol. 3, p. 59.
  17. Najafī, Jawāhir al-kalām, vol. 41, p. 448; Khomeini, Taḥrīr al-wasīla, vol. 2, p. 481.
  18. Shīrī, Suqūṭ-i mujāzāt dar ḥuqūq-i kiyfarī-yi Islām, p. 119-120.
  19. Khomeini, Taḥrīr al-wasīla, vol. 2, p. 473.
  20. Khomeini, Taḥrīr al-wasīla, vol. 2, p. 472.
  21. Najafī, Jawāhir al-kalām, vol. 41, p. 647-649.
  22. Khomeini, Taḥrīr al-wasīla, vol. 2, p. 482.
  23. Yūsifīyān, Aḥkām-i qaḍāyī, p. 48-49.
  24. Muntaẓirī, Dirāsāt fī wilāyat al-faqīh, vol. 2, p. 318-319.
  25. Makārim Shīrāzī, Taʿzīr wa gustara-yi ān, p. 32; Yūsifīyān, Aḥkām-i qaḍāyī, p. 49.
  26. Muntaẓirī, Dirāsāt fī wilāyat al-faqīh, vol. 2, p. 318.
  27. Makārim Shīrāzī, Taʿzīr wa gustara-yi ān, p. 32.
  1. Indeed those who want indecency to spread among the faithful —there is a painful punishment for them in the world and the Hereafter, and Allah knows and you do not know. (Quran 24:19)

References

  • Ibn Manẓūr, Muḥammad b. Mukarram. Lisān al-ʿArab. Edited by Aḥmad Fāris. Beirut: Dār al-Fikr - Dār al-Ṣādir, 1414 AH.
  • Khomeini, Rūḥollāh. Taḥrīr al-wasīla. Qom: Muʾassisa-yi Maṭbūʿātī-yi Dār al-ʿIlm, [n.d].
  • Kulaynī, Muḥammad b. Yaʿqūb al-. Al-Kāfī. Edited by ʿAlī Akbar Ghaffārī & Muḥammad Ākhūndī. Tehran: Dār al-Kutub al-Islāmīyya, 1407 AH.
  • Makārim Shīrāzī, Nāṣir. Tafsīr-i nimūna. Tehran: Dār al-Kutub al-Islāmīyya, 1374 Sh.
  • Makārim Shīrāzī, Nāṣir. Taʿzīr wa gustara-yi ān. Edited by Abū l-Qāsim ʿAlīyānnizhād. Qom: Intishārāt-i Madrisa-yi Imām ʿAlī b. Abī Ṭālib, 1425 AH.
  • Muntaẓirī, Ḥusayn ʿAlī. Dirāsāt fī wilāyat al-faqīh wa fiqh al-dawla al-Islāmīyya. Qom: Nashr-i Tafakkur, 1409 AH.
  • Najafī, Muḥammad Ḥasan al-. Jawāhir al-kalām. Edited by ʿAbbās Qūchānī & ʿAlī Ākhūndī. Beirut: Dār Iḥyāʾ al-Turāth al-ʿArabī, 1404 AH.
  • Rāghib al-Iṣfahānī, Ḥusayn b. Muḥammad al-. Mufradāt alfāẓ al-Qurʾān. Edited by Ṣafwān ʿAdnān Dāwūdī. Beirut: Dār al-ʿIlm – Damascus: Dār al-Shāmīyya, 1412 AH.
  • Ṣadūq, Muḥammad b. ʿAlī al-. Man lā yaḥḍuruh al-faqīh. Edited by ʿAlī Akbar Ghaffārī. Qom: Daftar-i Intishārāt-i Islāmī, 1413 AH.
  • Shahīd al-Awwal, Muḥammad b. Makkī al-. Al-Qawāʿid wa l- fawāʾid. Edited by Sayyid ʿAbd al-Hādī Ḥakīm. Qom: Kitābfūrūshī-yi Mufīd, [n.d].
  • Shahīd al-Thānī, Zayn al-Dīn b. ʿAlī al-. Masālik al-afhām ilā tanqīḥ Sharāʾiʿ al-Islām. Qom: Muʾassisat al-Maʿārif al-Islāmīyya, 1413 AH.
  • Shīrī, ʿAbbās. Suqūṭ-i mujāzāt dar ḥuqūq-i kiyfarī-yi Islām wa Iran. Tehran: Markaz-i Intishārāt-i Jahād-i Dānishgāhī-yi Shahīd Bihishtī. 1372 Sh.
  • Ṭāʾī, Yaḥyā. Al-Taʿzīr fī l-fiqh al-Islāmī. Qom: Būstān-i Kitāb, 1381 Sh.