Tazir

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In Islamic Law, tazir (or ta'zir, Arabic تعزير) refers to punishment, usually corporal, decided at the discretion of the judge or ruler of the state.[1] It is one of three major types of punishments under Sharia — hadd, qisas and tazir.[2] The punishments for the hudud offenses are fixed by the Qur'an or Hadith,[3] 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.[4][5]

Tazir punishments are a class of criminal penalties in Sharia that are defined by the state or Qadi, in contrast to hudud which are considered in Islam as penalties defined by God.[6]

Overview[edit]

The classical Islamic legal tradition did not have criminal law, as that term is understood in modern law.[5] 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 — hadd, qisas and tazir.[2]

Hadd, 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[7] 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).[4][8]

Qisas, in Islamic jurisprudence, is the second category of crimes, where Sharia specifies equal retaliation as a possible punishment. Included in this category is homicide, for example, which Islamic law treats as a civil dispute between believers.[9] 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.[10] 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.[11] The Quran and the Hadiths (Sunnah) also allow the Muslim victim to receive monetary compensation (blood money, diyya, دية) instead of qisas.[12]

Tazir (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][13] In Tazir cases, the punishment is at the discretion of the state or a Qadi (Kadi).[6][14] Tazir is the category for punishing actions which are considered sinful in Islam, or any offense that undermines the Muslim community, or a threat to public order during Islamic rule, but those that are not punishable as Hadd or Qisas crimes.[15]

Tazir category of crime and punishment grant a discretionary power to the ruler or courts acting on behalf of the ruler.[2] The legal restrictions on the exercise of that power are not specified in the Quran or the Hadiths, and vary.[4] Tazir types crimes do not require proof rules, or four male Muslim witnesses as is the case with Hadd and Qisas crimes. The ruler 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][4] The ruler can also choose to forgive a Tazir offense, in his discretion.[4]

Hadd literally means "limit", while Tazir means "to punish".[16]

Scriptures[edit]

The word Tazir is not used in the Quran or the Hadith, in the sense that modern Islamic criminal law uses it.[17] 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.[17] Example specific verses from the Quran that support Taazir are,[17]

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

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[edit]

Tazir offenses are broadly grouped into two sub-categories in Islamic literature.[18] 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.[18][19] 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.[18][19]

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. He, and others, have listed the following examples to be punishable as Tazir:[20]

  1. the man who kisses a boy or a woman unrelated to him by marriage or a very near kinship;
  2. the man who flirts without fornication;
  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;
  4. the man who steals a thing lying in open or one whose value is unclear;
  5. the man who debases the commodities such as foodstuffs and clothes, or who gives short measure of capacity or weight;
  6. the man who bears false witness or encourages others to bear false witness;
  7. the judge who judges contrary to what Allah has enjoined;
  8. the non-Muslim or Muslim engaged in espionage;
  9. the nashiz woman who questions or is rude to her husband;[21]
  10. the man who questions Qadi's opinion or challenges the views of other Muslims;

The above list is a sample. Numerous other offenses are included in Tazir category.[2][21]

Punishments for Tazir offenses[edit]

The punishment varies with the nature of crime, is discretionary, and can include a prison term, flogging, a fine, banishment, seizure of property, or execution 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.[17][22][23] All four fiqhs, namely Hanafi, Maliki, Shafii and Hanbali permit the death penalty at the discretion of the state or Qadi, for certain Tazir offenses; however, Tazir punishments are more common in Sharia courts for less serious offenses.[17]

In some Islamic countries, such as Pakistan, rape is being treated as liable to Tazir.[24] 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.[24] 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.[24][25]

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).[26]

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.[27]

See also[edit]

References[edit]

  1. ^ a b Tazir Oxford Islamic Studies, Oxford University Press
  2. ^ a b c d e f 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. ^ a b c d e Mohamed S. El-Awa (1993). Punishment In Islamic Law. American Trust Publications. pp. 1–68. ISBN 978-0892591428. 
  5. ^ a b Wael Hallaq (2009), SHARI’A: THEORY, PRACTICE, TRANSFORMATIONS, Cambridge University Press, ISBN 978-0521678742, pp. 309, 551-558
  6. ^ a b Wasti, Tahir (2009). The application of Islamic criminal law in Pakistan Sharia in practice. Brill Academic. p. xix, 72–73. ISBN 978-90-04-17225-8. 
  7. ^ "Hadd" Oxford Islamic Studies, Oxford University Press
  8. ^ Silvia Tellenbach (2015). The Oxford Handbook of Criminal Law (Ed: Markus D. Dubber and Tatjana Hornle). Oxford University Press. pp. 251–253. ISBN 978-0199673599. 
  9. ^ Wasti, Tahir (2009). The application of Islamic criminal law in Pakistan Sharia in practice. Brill Academic. pp. 283–288. ISBN 978-90-04-17225-8. 
  10. ^ Tahir Wasti (2009), The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, Brill Academic, ISBN 978-9004172258, pp. 12-13
  11. ^ Encyclopedia Britannica, Qisas (2012)
  12. ^ Christie S. Warren, Islamic Criminal Law, Oxford University Press, Qisas
  13. ^ Wasti, Tahir (2009). The application of Islamic criminal law in Pakistan Sharia in practice. Brill Academic. p. xix. ISBN 978-90-04-17225-8. 
  14. ^ "Qadi" Encyclopædia Britannica
  15. ^ Burns, Jonathan (2013). Introduction to Islamic law : principles of civil, criminal, and international law under the Shari'a. p. 121. ISBN 978-0-9845182-5-8. 
  16. ^ Smith, Sidonie (Editor) (1998). Women, Autobiography, Theory : a Reader. University of Wisconsin Press. p. 124. ISBN 978-0-299-15844-6. 
  17. ^ a b c d e Hakeem, Farrukh (2012). Policing Muslim communities comparative international context. New York: Springer. pp. 16–20. ISBN 978-1-4614-3551-8. 
  18. ^ a b c Criminal Law in Islam, The Oxford Encyclopedia of the Islamic World, Oxford Islamic Studies, Oxford University Press (2013)
  19. ^ a b Bassiouni, M (1982). The Islamic criminal justice system (Ta'azir Crimes chapter). London New York: Oceana Publications. ISBN 978-0-379-20749-1. 
  20. ^ Omar A. Farrukh (1969). Ibn Taimiyya on Public and Private Law in Islam or Public Policy in Islamic Jurisprudence. 
  21. ^ a b Boğaç Ergene (2009). Judicial practice : institutions and agents in the Islamic world. Leiden: Brill Academic. pp. 266–267. ISBN 978-90-04-17934-9. 
  22. ^ Terrill, Richard (2013). World criminal justice systems : a comparative survey. Anderson Pub. pp. 562–563. ISBN 978-1-4557-2589-2. 
  23. ^ Gerald E. Lampe (1997). Justice and human rights in Islamic law. Washington, D.C: International Law Institute. p. 88. ISBN 978-0-03-532984-0. 
  24. ^ a b c Mehdi, Rubya (2015). Islamization of the law in Pakistan. Routledge. pp. 122–126. ISBN 978-1-138-91272-4. 
  25. ^ Charles H. Kennedy (1988). "Islamization in Pakistan: Implementation of the Hudood Ordinances". Asian Survey (University of California Press) 28 (3): 307–316. 
  26. ^ Basuni, Izzuddin (2014-05-17). "Ta’zir offences explained". The Brunei Times. Retrieved 2015-05-09. 
  27. ^ Cronin, Stephanie (2004). Reformers and revolutionaries in modern Iran : new perspectives on the Iranian left. Routledge. p. 273. ISBN 978-0-415-57344-3.