Ta'zir (discretionary punishment)

Ta'zir is a penalty not fixed by the lawgiver, due for every wrong that has no hadd and generally no expiation; its measure is left to the ruler's judgement. ¹

In language ta'zir means repelling, preventing, aiding, honouring or disciplining, and the penalty is so named because it turns the wrongdoer from crime. In law it is a penalty not fixed by the lawgiver, due as a right of God or of a person. ¹

In the hadd and retaliation the judge cannot choose the penalty; in ta'zir he chooses what suits the case. A hadd owed to God admits no pardon or intercession, while ta'zir may be pardoned or interceded for when it serves a purpose. Hadds are averted by doubt, ta'zir is established even by doubt; a child is not liable to a hadd but may be disciplined; and some jurists hold a hadd lapses with time, which ta'zir does not. ^{2 3}

All agree that one whom the imam has punished by hadd and who dies bears no blood-wit. For ta'zir they differ: the Hanafis, Malikis and Hanbalis treat it like the hadd, while the Shafiis hold the disciplinarian liable, relying on Umar's case of a woman he frightened. ²

The basic rule is that ta'zir is lawful for every wrong with no hadd or expiation, and its ruling varies with the act and the doer. It serves to deter, to restrain, to reform and to refine, and it is not meant for torture, the destruction of human dignity or harm. ³

A limb of the disciplined person may not be cut or wounded, and any blow that may destroy is forbidden, so the face, the private parts, the belly and the chest are not struck. Most jurists forbid slapping, shaving the beard and blackening the face, though some allow the last for false witness. ⁴

A wrong is failing a duty or doing a forbidden act. Failing a duty includes withholding zakat, not paying a debt when able, and a seller concealing a defect. Doing a forbidden act includes theft that carries no cut, kissing a stranger woman, cheating in markets, usury and false witness. On recommended and disliked acts the jurists differ: some forbid disciplining their neglect for want of obligation, others allow it on Umar's act. ^{4 5}

Ta'zir may combine with a hadd, as the exile of an unmarried adulterer for those who allow it, or the reproof of a drinker by word after his lashes. It combines with retaliation for wounds short of death, and with expiation in offences such as intercourse while in ihram or in Ramadan. ^{6 7}

Ta'zir is divided into a right of God, where public benefit and the averting of public harm predominate, and a right of a person, where a private interest is at stake. Some ta'zir is purely God's right, such as for neglecting prayer; some is mixed with God's right predominating; and in insult it is the person's right that predominates. A right of a person needs a complaint, cannot be waived by the ruler, and cannot be pardoned by him; a right of God may be pardoned or interceded for if it serves a purpose. ^{7 8}

The Malikis, Shafiis and Hanbalis, and the sounder Hanafi view, hold that ta'zir is delegated to the ruler's opinion. He weighs the gravity of the wrong and the state of the wrongdoer; a wrong like a hadd offence that the hadd did not reach may be punished to its utmost, while others stay below it. Some Hanafis reject delegation for the variety of judges. ^{8 9}

This entry relates to the entries on hadd, retaliation, expiation and fixed penalties. ¹

The judge chooses among several penalties what fits the purpose of ta'zir: penalties on the body, penalties that restrict liberty, penalties on property, and others. ¹⁰

The rule is that ta'zir does not reach killing; the books cite the Qur'anic prohibition of killing a soul except by right, in the Surah of Cattle (verse 151), and the Prophet ﷺ's saying that the blood of a Muslim is lawful only in three cases. Malik and some of Ahmad's companions allowed killing a Muslim spy and a preacher of innovations that oppose the Book and the Sunna; Abu Hanifa, al-Shafii and Abu Ya'la forbade it; Abu Hanifa allowed it for one who repeats an offence of a kind that calls for death, such as sodomy or killing with a heavy object. ^{10 11}

The hadith of Abu Burda is cited: «no one is to be flogged beyond ten lashes except for one of God's hadds». For a sheep taken from its pasture, or dates taken from hanging clusters, the thief pays twice the value and is flogged as a deterrent; the rightly guided caliphs and those after them applied this. ^{11 12}

Ta'zir does not reach the hadd. Abu Hanifa allows no more than thirty-nine lashes for slander and drinking; Abu Yusuf is reported with two views, seventy-nine and the apparent view of seventy-five. ^{12 13}

The Malikis allow the ruler to exceed the hadd where the interest requires it, citing Umar's flogging of Ma'n b. Zaida. The Shafiis hold ta'zir must stay below the lowest hadd of the person punished: below twenty for a slave and below forty for a free man. The Hanbalis have two reports: it does not reach the lowest hadd, or it does not exceed ten lashes; Ibn Taymiyya and Ibn al-Qayyim hold that it follows the interest and the offence, short of the fixed hadd of its kind. ^{13 14}

Al-Qaduri gave three lashes as the least, as the least that deters; most Hanafis leave the least to the judge, by what he knows deters. Ibn Qudama held the least is not fixed. ^{14 15}

Imprisonment is lawful by the Book, the Sunna and consensus. The Prophet is reported to have held men in Medina on a charge of blood; Umar jailed al-Hutay'a for satire and Uthman jailed Dabi' b. al-Harith; Ibn al-Zubayr jailed Muhammad b. al-Hanafiyya for refusing his allegiance. The Zayla'i says no term is fixed; al-Sharbini among the Shafiis holds the term must be less than a year. ^{15 16}

Exile is lawful by agreement. The Prophet exiled effeminate men from Medina to al-Naqi'; Umar exiled Nasr b. Hajjaj to Basra, and Uthman exiled to Egypt. The place must be fixed and must not be the offender's own town; al-Shafii requires a distance of a day and a night's journey, and Ibn Abi Layla requires less than a journey. ^{16 17}

Abu Hanifa does not count exile for fornication as a hadd, so he allows it to exceed a year. Malik allows it beyond a year as ta'zir, and the Malikis hold the ruler may exceed the hadd where the interest is clear. Some Shafiis and Hanbalis agree; others hold that exile as ta'zir must not reach a year, since they count exile for fornication as a hadd. ¹⁷

Abu Hanifa and Muhammad do not allow taking property as ta'zir; Abu Yusuf allows it where the interest is seen. The Shafii new view forbids it, the old allows it. The Malikis allow it in named cases: Malik would have watered milk given to charity when the seller watered it, and the same for watered saffron and musk. The Hanbalis forbid taking or destroying property, but Ibn Taymiyya and Ibn al-Qayyim allow both taking and destroying, citing the Prophet's orders and the caliphs' acts. ^{17 18 19}

Property may be held from its owner for a time and returned on repentance; destroyed, as where the place of selling wine was burnt; altered in form, as where instruments of music were broken; or transferred, as where the thief pays double. ^{19 20 21}

Notice is the judge saying to the offender: "It has reached me that you did such and such", or sending his agent to say so. Some jurists add that it should be given with a stern look. ²¹

The offender is brought to the judge's door and addressed face to face. Unlike bare notice, it involves a claim against him about what was attributed to him. The judge often uses one of these two forms, or both, when the offence was a first and rare slip, the measure deters, and the offence is not grave. ²¹

Reproof as ta'zir is lawful by the agreement of the jurists. A basis is the Prophet's words to Abu Dhar when he reproached a man about his mother: "you are a man in whom there is still ignorance". It may take the form of the judge turning away from the offender or looking at him sternly, removing him from the court, or sharp speech and rebuke, provided it is not slander; some forbade even abuse. Umar disciplined soldiers who wore silk by turning away from them and rebuking them. Rebuking a drinker in words after he has been beaten is also reproof. ^{21 22}

Boycott is cutting off the offender and refusing contact with him. It is lawful; the basis cited is Surat al-Nisa' (verse 34) on dealing with a disobedient wife. The Prophet boycotted three companions who stayed behind at Tabuk, and Umar punished Subay' by ordering that no one sit with him after banishing him to Basra. ^{22 23}

An offence may belong to a kind that has a fixed hadd or retaliation, but the fixed penalty is not applied because its conditions are missing or a bar exists, such as doubt that averts the hadd or the pardon of the claimant. An offence may also have no fixed penalty at all, and then ta'zir is the penalty itself. ²³

Intentional unlawful killing requires retaliation, on condition that the intent is pure and free of doubt, that the killer acted by choice and directly, that the victim was not a part of the killer, that the blood is protected, and that the blood-relative asks for retaliation. If one condition fails, retaliation is barred and ta'zir applies. The detail is in the entry on killing and retaliation. ²³

Al-Buhuti, quoting al-Mubdi', says ta'zir may be due in quasi-intentional killing, because the expiation is a right of God owed in place of the lost life, while the forbidden act itself carries no expiation. ²³

The Hanafis hold that where there is no retaliation, as with killing by a heavy object, the ruler may discipline up to killing when the offence is repeated and the harm cannot be stopped otherwise, so long as there is a public interest. On this basis they allow ta'zir by death for one who repeatedly strangles, drowns, or throws people from a height. ²⁴

If the offence is intentional injury short of death, retaliation requires equal harm and the possibility of an exact match. Malik allows ta'zir with or without the blood-money or the arsh, according to the case; for example, injuries to dangerous bones for which he allows no retaliation, and a loss of function while the limb remains, such as loss of sight with the eye intact, where the offender is disciplined and pays the diya. Where no mark is left, most jurists prescribe ta'zir rather than retaliation. Some Malikis allow retaliation for a whip stroke; Ibn al-Qayyim and some Hanbalis allow it for a slap or a blow. ²⁴

When the hadd for fornication is not applied because of doubt or because a condition is missing, the act is still an offence and the offender is disciplined, since every offence without a hadd or retaliation carries ta'zir. Doubt of act, of ownership, or of contract averts the hadd and the offender is disciplined. Where the woman is dead, ta'zir applies, since her life is a condition of the hadd. ²⁵

Abu Hanifa does not impose the hadd where the act is not in the front of a woman but imposes ta'zir; this is also a view among the Shafi'is. Ibn Abbas held that the act is punished by death in every case, another Shafi'i view. The Shafi'i school's preferred view treats it as fornication with the hadd; Malik, Abu Yusuf, the preferred Shafi'i view and a narration from Ahmad treat it as fornication with the hadd. Where the act is with the doer's own wife, the hadd is not due by consensus, and the majority impose ta'zir. ²⁵

Every act short of intercourse carries ta'zir, such as intercourse outside the private part, whether by a Muslim or unbeliever, married or not. Also carrying ta'zir: any other forbidden touching of a woman, embracing or kissing a woman not lawful to the man, exposing the nakedness to another, deceiving women, and procuring, that is bringing men and women together for fornication, or men together for sodomy. ²⁵

The hadd for slander is applied only when all its conditions hold; if one is missing or defective, the slanderer is disciplined when the slandered person claims. A condition of the hadd is that the slandered person be chaste, so a slanderer is disciplined who accuses a madman or a child of fornication, a woman known for fornication, a man known for it, or a woman with children whose father is unknown; the last three lack chastity. The person slandered must also be identified: one who accuses another man's grandfather without naming him, or a brother where he has several, is disciplined and not given the hadd. ²⁶

Slander by allusion carries no hadd: the Hanafis and Shafi'is impose ta'zir, while Malik imposes the hadd for allusion. Words that do not plainly mean fornication, such as "you libertine", are disciplined, as is an accusation that is not fornication, like calling someone effeminate. Abu Hanifa disciplines one who accuses another of the deed of the people of Lot, since he does not treat that as fornication; Malik, al-Shafi'i, Abu Yusuf and Muhammad impose the slander hadd, and the dispute turns on whether sodomy is fornication. A slander made conditional on a term or a condition is disciplined and not given the hadd. ²⁶

Where the words are not slander but mere abuse or insult, the act is a wrong with no hadd and so carries ta'zir. Examples are calling a Muslim "Christian", "heretic" or "unbeliever"; calling someone "perjurer" or "hypocrite" when he is not; "usurer", "drinker", "traitor" or "thief" to one not known for it; "fool", "filthy", "stupid" or "tyrant"; "one-eyed" to a man with two good eyes, or "paralysed" to a healthy man. Any insult is in principle a wrong. What counts as an insult is decided by custom: if the words do not bring shame, harm or disgrace in custom, there is no offence. ^{26 27}

Theft is a hadd offence only when its conditions hold: it must be secret, of property that belongs to another, in a place of safe keeping (hirz), and of the minimum value (nisab). If a condition fails, there is no hadd but the thief is disciplined. ²⁷

Highway robbery is also a hadd offence only when its conditions hold: the robber is a mature male, the victim is a Muslim or a protected non-Muslim, the robber's hand over the property is valid, no kinsman within the forbidden degrees is among the victims, the property is valuable, lawful, owned by another, kept, and of the minimum value, and the robbery takes place outside a town. If one fails, the robber is disciplined. ²⁷

False testimony

The Qur'an forbids false speech (Surat al-Hajj, verse 30), and the Prophet counted false speech and false testimony among the greatest sins. Since no fixed penalty applies, ta'zir is due. ^{27 28}

Unfounded complaint

The author of Tabsirat al-hukkam says a person who lodges an unfounded complaint is disciplined. Al-Buhuti says that when a claimant's falsehood is shown and it harmed the defendant, he is disciplined for lying and for the harm. ²⁸

Killing or harming an animal that does no harm

The Prophet forbade torment of animals, citing the woman who entered the fire for a cat she locked up. Hanafi jurists hold that cutting the tail of a horse is a wrong that carries ta'zir. ²⁸

Violating another's property

Entering another's house without permission is forbidden, and a person found in another's home without consent and without lawful cause is disciplined; the basis is Surat al-Nur (verse 27). ²⁸

Offences against the public interest

Some offences harm the public interest and have no fixed penalty, so they carry ta'zir. Spying for the enemy against Muslims is forbidden (Surat al-Hujurat, verse 12; Surat al-Mumtahanah, verse 1), and details are in the entry on spying. Bribery is forbidden by the Qur'an (Surat al-Ma'idah, verse 42) and by the hadith cursing the giver, the taker and the broker. ^{28 29}

Officials who exceed their authority or neglect it

A judge who deliberately rules unjustly is disciplined, removed, and made liable for the loss from his own property; if he errs without intent, he owes nothing, since a judge is not immune from error (Surat al-Ahzab, verse 5). Any act that halts public work or disrupts its order carries ta'zir, such as an official who abandons his post to obstruct work, rebels in his office, uses force or violence against superiors, or abuses his post to harm another. ^{29 30}

Resisting or assaulting officers of the state

Assaulting public officials or those charged with public service carries ta'zir. Examples include insulting scholars or state officers improperly, by gesture, words or otherwise; striking a soldier, tearing his clothes or abusing him, which carries ta'zir and compensation for any loss; and insulting a court, with its session offences; the judge may pardon these. ³⁰

Harbouring offenders and escaping detention

Whoever shelters a robber, thief or similar offender who owes a right to God or a person, and blocks its enforcement, is treated as a partner in the offence and disciplined. He may be ordered to produce the offender or to reveal his place; if he refuses, he is jailed and beaten repeatedly until he complies. ³⁰

Counterfeiting coins and forgery

Counterfeiting circulating coins and helping pass or spread debased currency carries ta'zir. Forgery is also a ta'zir offence; Umar punished Ma'n ibn Zaida, who made a seal copying the treasury's seal and took money with it, by a hundred strokes, then a hundred again, then a third hundred, and then banished him. Writing false documents and deeds is also a ground for ta'zir. ³⁰

Selling above a fixed price, and refusing to sell

When the ruler fixes prices of necessities, selling above the fixed price carries ta'zir, and refusing to sell is likewise punished, since it is failing a duty. Hoarding necessities to control the price is punished, on the hadith "no one hoards but a sinner". ^{30 31}

Cheating with measures and scales

Cheating in measure and weight is a wrong with no fixed penalty, so it carries ta'zir, on the Qur'anic command to give full measure (Surat al-Shu'ara', verses 181-183) and the hadith "whoever cheats us is not one of us". ³¹

Ta'zir may be due not for a particular act but for the danger of the person's state. Some jurists discipline a man suspected of theft even when he has committed no new theft, and one known or suspected of offences against the person, such as killing, beating or wounding. ³¹

Ta'zir lapses by the death of the offender, by pardon, and by repentance. A bodily or liberty-restricting penalty lapses on death, since it attaches to the person: boycott, reproof, imprisonment and beating. A penalty on property, such as a fine or confiscation, does not lapse on death after judgment, because it becomes a debt on the estate. ³¹

Pardon

Pardon is permitted for ta'zir that is a right of God, on the Prophet's words "overlook the punishment of people of standing, except in a hadd of God's", and "pardon the people of standing their slips". Some held pardon is not allowed where the ta'zir is a right of God, as with one who abandons prayer, and others held that where the penalty is prescribed by text, as with intercourse with a slave-girl shared with another, obedience is required, so there is no pardon. Some say pardon suits a first slip and persons of standing, so the offender's standing counts. ^{31 32}

Where ta'zir is a right of a person, the ruler may leave it and pardon, even if the claimant asks, according to some; most jurists say it cannot be dropped when claimed, like retaliation. If the claimant pardons, his pardon is valid but does not affect the ruler's right. Al-Mawardi separates a pardon before the case reaches the ruler, which leaves him the choice, from a pardon after the case, where he may still discipline, because public correction is a general right. ^{32 33}

Repentance

Jurists differ on the effect of repentance. The Hanafis, Malikis, some Shafi'is and some Hanbalis say repentance does not lapse the penalty, since it is an expiation of the sin, and making it lapse would open a way to claim it falsely. The Shafi'is and Hanbalis in one view say repentance before capture lapses the penalty, by analogy with the hadd for highway robbery, citing the hadith of Anas about the man who said he had done a hadd and the Prophet's question whether he had prayed with them, then said God had forgiven him. Ibn Taymiyya and Ibn al-Qayyim hold that repentance averts ta'zir as it averts the penalty for highway robbery; a right of God lapses, unless the offender chooses the penalty to purify himself, and provided he does not seek it for public rights. ^{33 34}