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Template:Related to Shi'a Tāziyāna (flogging/whipping) is a type of punishment for executing some types of ḥadd and taʿzīr (discretionary punishment). In some verses of the Qur'an and hadiths narrated from the Shi'a Imams (a), the ruling of flogging and its appropriate amount for crimes have been stated. In some cases, the Imams (a) themselves executed this punishment; for example, Imam 'Ali (a) executed ʿUmar b. al-Khaṭṭāb's ruling regarding the alcohol consumption of his son, ʿUbayd Allāh, and whipped him.

Examples of crimes deserving flogging and the amount of their ḥadd and taʿzīr punishments are mentioned in jurisprudential books; for instance, the ḥadd for fornication (zinā) for an individual who is not muḥṣin (married) is one hundred lashes, and for false accusation of unchastity (qadhf) and alcohol consumption, it is eighty lashes. Taʿzīr is a punishment for which an amount has not been specified in the Sharia. The number of taʿzīr lashes is determined by the discretion of the religious judge (ḥākim al-sharʿ). Based on the famous fatwa among jurists, the taʿzīr punishment must be less than its ḥadd amount.

From the perspective of jurists, it is obligatory in executing the ruling of flogging that its blows be distributed over the body and not concentrated on a specific spot. The executors of this ruling do not have the right to whip dangerous parts of the criminal's body, such as the head and face, and this ruling is not executed in severe cold and heat.

Muslim scholars, in response to those who consider whipping an oppressive punishment and incompatible with human rights, say that flogging is carried out with the aim of reforming society and preventing the repetition of the crime, and it pursues the preservation of the rights of those who are transgressed against.

Conceptology and Importance

Whipping (in Arabic: jald) is a type of penalty and punishment for criminals, and jurists have discussed it in the section of ḥudūd of the science of jurisprudence.[1] In the verses of the Qur'an, some cases deserving flogging and its amount have been stated; for example, the amount of the ḥadd for zinā is mentioned in the Verse of Jald and the ḥadd for qadhf is mentioned in verse 4 of Sura al-Nur. Also, in verse 25 of Sura al-Nisa', the penalty for an adulterous female slave (kanīz) who is muḥṣana is stated as fifty lashes.[2]

The Shi'a Imams, besides stating the ruling and determining the amount of flogging for crimes,[3] have themselves executed it in some cases. Based on a hadith from Imam al-Bāqir (a), ʿUbayd Allāh b. ʿUmar drank alcohol. Then he was prepared for the execution of the ḥadd. His father, ʿUmar b. al-Khaṭṭāb, ruled for the execution of the ḥadd on him; but no one dared to act. At this time, Imam 'Ali (a) stood up and struck him forty blows with a double-layered whip;[4] also Qays b. ʿAmr b. Mālik, nicknamed al-Najāshī, was brought to Imam 'Ali (a) for the crime of drinking alcohol in the month of Ramadan. Imam 'Ali (a) gave him eighty lashes and imprisoned him for one night. The next day, he struck him twenty more blows for breaking the sanctity of the month of Ramadan.[5] Jurists have addressed the subject of whipping and stated the amount of its ḥadd and taʿzīr punishments in their books.[6]

Amount and Cases of Flogging in Shi'a Jurisprudence

Shi'a jurists have stated the cases and amount of the punishment of whipping in the ḥudūd and taʿzīr section of the science of jurisprudence, some of which are as follows:

Hadd Flogging

The amount of flogging in ḥadd crimes is as follows:

  • One hundred lashes for a fornicator who is not muḥṣin; meaning he does not have access to a lawful sexual relationship;[7]
  • One hundred lashes for a person committing musāḥaqa (lesbianism);[8]
  • One hundred lashes for a person committing sodomy, if penetration does not occur during the act of liwāṭ (otherwise the punishment is execution).[9] Some jurists, such as Abu l-Qāsim Khūʾī, also consider the punishment for a non-muḥṣan sodomite to be one hundred lashes, and only rule for execution if the sodomite is muḥṣan;[10]
  • One hundred lashes for a muḥrim individual who kisses a teenage boy out of lust;[11]
  • Eighty lashes for qadhf;[12]
  • Seventy-five lashes for qiyāda, meaning acting as an intermediary between two people to establish an illicit relationship;[13]
  • Eighty lashes for drinking alcohol (consuming various alcoholic beverages).[14] The time of its execution is after the drinker becomes sober.[15]

Ta'zir Flogging

Taʿzīr is a punishment for which an amount has not been specified in the Sharia.[16] The meaning of taʿzīr flogging is whipping the criminal a number of times that the religious judge deems appropriate.[17] Examples of crimes included in this penalty are mentioned in narrations; for example, a husband and wife who have intercourse during the day in the month of Ramadan are each subjected to taʿzīr with twenty-five lashes.[18] It is said that based on the famous fatwa among jurists, the taʿzīr punishment must be less than its ḥadd amount; for instance, if the ḥadd punishment of a sin was one hundred lashes, its taʿzīr is ninety-nine lashes or less.[19]

Method of Executing the Ruling of Whipping

Shi'a jurists have stated rulings and conditions for executing the ruling of whipping and executing ḥudūd. According to Makārim Shīrāzī, one of the marja's, the material of the whip used in executing ḥadd or taʿzīr must be woven and ordinary, and of medium thickness, and wire, cable, and wood cannot be used for whipping;[20] also according to him, based on obligatory precaution, the person should not be laid down for whipping, and the whipper should not raise his hand to the extent that his armpit is revealed.[21]

According to jurists, it is obligatory that the blows of the whip be distributed over the body and not concentrated on a specific spot. The executors of this ruling do not have the right to whip dangerous parts of the body such as the head and face, heart, and private parts and the like.[22] The ruling of whipping is not executed in severe cold and heat.[23] Whenever a sick person or a mustaḥāḍa woman is condemned to jald (whipping), the execution of the ḥadd is delayed until recovery and the cessation of blood.[24]

The executive bylaw for penal rulings in Iran was approved and promulgated by the head of the judiciary in Khordad 1398 Sh. In the fifth section of this bylaw, the method of executing the punishment of whipping is mentioned, and the duties of the executors, in accordance with jurisprudence, are specified within Article 122 to row 134.[25]

Criticism of Public Execution of the Ruling of Whipping

Some have objected to the public execution of whipping and have considered it to have bad effects. They describe this method as causing terror and taking away the psychological peace of society or causing pessimism. In response, it has been said that the Qur'an has only ordered public whipping regarding zinā, and other cases do not have precise jurisprudential reasoning. Even in this case, determining the number of witnesses has been left to the religious judge, and the presence of three truthful witnesses is sufficient for execution, and there is no need for the presence of people from the streets and markets.[26]

Incompatibility with Human Rights

Some have considered whipping to be incompatible with common human rights in Europe and have counted it as an example of an oppressive punishment. Husayn 'Ali Muntaziri, one of the Shi'a marja's, has rejected this claim and said that whipping, in addition to reforming society and preventing the repetition of the crime, causes the preservation of the rights of those who have been transgressed against and subjected to crimes.[27] Some also, referring to verse 120 of Sura al-Baqara, have pointed to the dissatisfaction of the enemies of Islam with the execution of its laws and have considered gaining the satisfaction of God and the Islamic society to be higher and prior to the pleasure of the enemies.[28]

Replacement with Other Penalties

Some believe that the punishment of whipping is not in harmony with the progress and current conditions of societies. They say that in early Islam, whipping was common and the dignity of the criminal was not harmed. At that time, there were no suitable alternative punishments for whipping; whereas today this opportunity exists. Many countries have eliminated or replaced the punishment of whipping. Shi'a jurisprudence must also, according to the requirements of the time, change whipping, which has acquired a humiliating and unbearable effect, into a suitable penalty;[29] In contrast, Makārim Shīrāzī, one of the marja's, considers changing the ḥadd whipping conditional upon the determination of necessity by the religious judge.[30] He says that, of course, taʿzīr punishment is not limited to whipping and, by the opinion of the religious judge, can include various types of reprimands such as financial fines, imprisonment, and even introducing the criminal in the media.[31] He has enumerated eleven examples for taʿzīr, besides whipping, which include deprivation from some positions and temporary prohibition from business.[32]

Notes

  1. ↑ Sajjādī, Farhang-i maʿārif-i islāmī, 1373 Sh, vol. 1, pp. 643-644.
  2. ↑ Hāshimī Rafsanjānī, Farhang-i Qurʾān, 1383 Sh, vol. 7, p. 313.
  3. ↑ For example, see: Shaykh al-Ṣadūq, Man lā yaḥḍuruh al-faqīh, 1413 AH, vol. 4, p. 23.
  4. ↑ Kulaynī, al-Kāfī, 1407 AH, vol. 7, p. 214.
  5. ↑ Kulaynī, al-Kāfī, 1407 AH, vol. 7, p. 216.
  6. ↑ Hāshimī Shāhrūdī, Farhang-i fiqh, 1426 AH, vol. 3, pp. 315-316.
  7. ↑ Muḥaqqiq al-Ḥillī, Sharāʾiʿ al-Islām, 1408 AH, vol. 4, p. 137.
  8. ↑ For example, see Shaykh al-Ṭūsī, al-Nihāya, 1400 AH, p. 706; Muqaddas al-Ardabīlī, Majmaʿ al-fāʾida, Jamāʿat al-Mudarrisīn, vol. 13, p. 120; Shaykh al-Mufīd, al-Muqniʿa, 1410 AH, p. 787.
  9. ↑ For example, see Muḥaqqiq al-Ḥillī, Sharāʾiʿ al-Islām, 1408 AH, vol. 4, p. 147; ʿAllāma al-Ḥillī, Taḥrīr al-aḥkām al-sharʿiyya, Muʾassasat Āl al-Bayt (a), vol. 2, p. 224.
  10. ↑ Khūʾī, Takmilat al-Minhāj, 1410 AH, vol. 2, pp. 38-39.
  11. ↑ Khūʾī, Mabānī takmilat al-Minhāj, Muʾassasat Iḥyāʾ Āthār al-Imām al-Khūʾī, vol. 1, p. 298.
  12. ↑ ʿAllāma al-Ḥillī, Qawāʿid al-aḥkām, 1413 AH, vol. 3, p. 547; Shahīd al-Thānī, al-Rawḍat al-bahiyya, 1410 AH, vol. 9, p. 188.
  13. ↑ Muḥaqqiq al-Ḥillī, Sharāʾiʿ al-Islām, 1408 AH, vol. 4, p. 149; Hāshimī Shāhrūdī, Farhang-i fiqh, 1426 AH, vol. 3, p. 316.
  14. ↑ Hāshimī Shāhrūdī, Farhang-i fiqh, 1426 AH, vol. 3, p. 493.
  15. ↑ Hāshimī Shāhrūdī, Farhang-i fiqh, 1426 AH, vol. 3, p. 493.
  16. ↑ Shahīd al-Thānī, Masālik al-afhām, 1413 AH, vol. 14, p. 325.
  17. ↑ Hāshimī Shāhrūdī, Farhang-i fiqh muṭābiq-i madhhab-i Ahl al-Bayt (a), 1426 AH, vol. 2, p. 316.
  18. ↑ Hāshimī Shāhrūdī, Farhang-i fiqh muṭābiq-i madhhab-i Ahl al-Bayt (a), 1426 AH, vol. 2, p. 316.
  19. ↑ Ḥaq-panāh, "Falsafa-yi mujāzāt-i jald dar fiqh wa ḥuqūq-i bashar", p. 187.
  20. ↑ Makārim Shīrāzī, Istiftāʾāt-i jadīd, 1427 AH, pp. 487-488.
  21. ↑ Makārim Shīrāzī, Istiftāʾāt-i jadīd, 1427 AH, p. 488.
  22. ↑ ʿAllāma al-Ḥillī, Mukhtalaf al-Shīʿa, 1413 AH, vol. 9, p. 175; Makārim Shīrāzī, Istiftāʾāt-i jadīd, 1427 AH, p. 488.
  23. ↑ Makārim Shīrāzī, Istiftāʾāt-i jadīd, 1427 AH, p. 488.
  24. ↑ Hāshimī Shāhrūdī, Farhang-i fiqh, 1426 AH, vol. 3, p. 316.
  25. ↑ "Āyīn-nāma-yi naḥwa-yi ijrā-yi aḥkām-i ḥudūd, salb-i ḥayāt, qaṭʿ-i ʿuḍw, qiṣāṣ-i nafs wa ʿuḍw wa jurḥ, diyāt, shallāq, tabʿīd, nafy balad, iqāmat-i ijbārī wa manʿ az iqāmat dar maḥall yā maḥall-hā-yi muʿayyan", Ekhtebar website.
  26. ↑ "Falsafa-yi mujāzāt-i ʿalanī dar Islām", A'in-i Rahmat website.
  27. ↑ Muntaẓarī, Mujāzāt-hā-yi islāmī wa ḥuqūq-i bashar, 1429 AH, pp. 82-84.
  28. ↑ "Falsafa-yi mujāzāt-i ʿalanī dar Islām", A'in-i Rahmat website.
  29. ↑ "Islām wa shallāq", DinOnline website.
  30. ↑ "Shallāq", website of Ayatollah Makarim Shirazi.
  31. ↑ "Shallāq", website of Ayatollah Makarim Shirazi.
  32. ↑ Makārim Shīrāzī, Taʿzīr wa gustara-yi ān, 1425 AH, p. 86.

References

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