The typology of discretionary penalties (ta'zir)

The ta'zir is the discretionary penalty the imam inflicts for acts of disobedience without a fixed hadd, and it may accompany the hadd itself. The sheets of this chapter go through its forms: verbal reprimand, detention, the pecuniary penalty, then the limits of the ta'zir and its lapse through repentance.

Verbal reprimand and blame

The sheet opens on a general rule: whether it is a right of Allah or the right of a servant, the punishments are graded according to the rank of the offenders and the size of their faults: one will be detained a day, another longer, up to an unnumbered limit that the judge's effort and the public interest determine. They also agreed to permit the imam to combine striking and detention: the ta'zir is left to the imam's judgment and its aim is repelling and deterring; if he judges that the striking alone will not deter, he detains him as well. He may therefore detain the disobedient after striking him, combining detention and striking, for it is a valid ta'zir that the Law came with in general terms, so that one may be content with it alone and may add to it; he may detain him in his house or in prison as the imam sees, without exceeding a year with the Shafi'is.

Thirdly, reprimand and blame: the jurists agreed that the ta'zir by verbal reprimand and blame is permitted, for it produces the repelling and deterring from the offense, as is the public proclamation of his sin upon him. The Hanafis: the ta'zir by violent speech, by a slap on the nape, by rubbing the ear, by the judge's frowning look, and by insult other than qadhf, is permitted. The Malikis: the ta'zir is done by detention, striking with the whip, the switch and the staff, the bare-palm slap on the nape, blame and reprimand, expulsion from the assembly and the circles, and the removal of the turban from his head. Ibn Shas describes: they punished the man according to his rank and the size of his offense: this one was struck, that one detained, that one made to stand on his feet in the assemblies, that one stripped of his turban, that one with his izar untied. Ibn Arafa: practiced among the forms of the ta'zir is the striking of the nape, bare, with nothing covering it, with the palm. Al-Qadi Iyad reports that a man swore divorce in the assembly of Sahnun and that Sahnun ordered his nape slapped.

The Shafi'is: the ta'zir is permitted by detention and exile, striking, the palm slap, verbal reprimand and turning away from him; the imam may confine himself to the reprimand if he sees benefit in it, and it is permitted to him to expose the offender publicly to add humiliation, a measure described for false testimony: he is displayed at the door of the mosque, in his market and near his tribe, and it is cried: "this is a false witness, take note of him". It is permitted to him to strip the punished of his garments except the private part, and blackening his face is permitted in the soundest of the two positions.

Imprisonment

The sheet opens on a case: whoever drinks an intoxicant by day in Ramadan undergoes a ta'zir of twenty strokes in addition to the hadd, by what Ahmad reported: the Najashi, who had drunk wine in Ramadan, was brought to Ali; he flogged him the hadd and twenty strokes, for his breaking of the fast in Ramadan (reported by at-Tahawi, 2/88, hadith judged good). The Shafi'is in one wording, and the Hanbalis in a possible reading of the statements of Ahmad and al-Khiraqi cited by Ibn Qudama, hold that no offense must reach a legislated hadd of its own kind, but that exceeding the hadd of another kind is permitted: what has penetration as its cause may be flogged with ninety-nine strokes, to remain below the hadd of zina; what does not have penetration as its cause does not reach the smallest of the hudud. The Shafi'is in another wording say it must not reach twenty strokes, for that is the hadd of the slave.

Secondly, detention: the jurists agreed that the ta'zir by detention is permitted to the imam, for the aim is deterrence, and it is attained by that; he may therefore detain whoever committed an act of disobedience against the right of Allah or the right of a servant, placing him according to the ranks of people and according to their sins: one is detained a day, another longer, up to an unnumbered limit that the judge's effort and the public interest determine.

The ta'zir by taking property

The sheet first cites al-Mawardi on the limit of exile: the apparent of the madhhab of al-Shafi'i is that the year is not exceeded, even by a day, so as not to equal the exile of a year of zina; the apparent of the madhhab of Malik is that the year may be exceeded according to what he sees of ways of being set upright.

The jurists differed over the ta'zir by property: is it permitted? The majority of jurists, the Hanafis in their sound position, the Malikis, the Shafi'is according to the madhhab and the Hanbalis according to the madhhab, hold that the ta'zir by property is not permitted. The Hanafis according to the madhhab: the ta'zir by taking property is not permitted. Abu Yusuf was reported as holding that the ruler's ta'zir by taking property is permitted if the judge or the governor sees it good, among it the man who does not attend the congregational prayer, whose ta'zir by taking property is permitted. The meaning of the ta'zir by taking property on this position: withholding a part of his property for a time so that he is deterred, then the ruler returns it to him; not that he takes it for himself or for the public treasury, as the tyrants imagine: no Muslim may take the property of a Muslim without a legal cause, such as sale or gift. The Mujtaba does not specify the manner of taking; the author holds that he takes the property and withholds it, then, if he despairs of his repentance, disposes of it as he sees. Sharh al-Athar reports that the ta'zir by property existed at the beginning of Islam and was then abrogated. The result: the madhhab is the absence of ta'zir by taking property.

Al-Dasuqi the Maliki: the ta'zir by taking property is not permitted, by consensus; what is reported from Abu Yusuf, the companion of Abu Hanifa, on permitting the ruler the ta'zir by taking property means what al-Bazzazi, among the Hanafi imams, said of it: withholding the property with him for a time so that he is deterred, then returning it to him, not taking it for himself or for the treasury, as the tyrants imagine: the property of a Muslim may not be taken without a legal cause, such as sale or gift. The haashiya of Umayra confirms, on the later view, the prohibition of the ta'zir by taking property. The Hanbalis according to the madhhab: punishing by taking property or destroying it is forbidden, for the Law did not come with that from anyone to be imitated, and because the duty is discipline, and discipline is not by destruction.

The opposite position: Abu Yusuf among the Hanafis, the Shafi'is in the earlier school, and the Hanbalis in a position that is the choice of Shaykh al-Islam Ibn Taymiyya and Ibn al-Qayyim, hold that the ta'zir by property is permitted. Ali ibn Khalil al-Tarabulusi the Hanafi makes of it a question: the ta'zir by taking property is permitted, it is the madhhab of Abu Yusuf and the saying of Malik; whoever says the pecuniary penalty is abrogated errs against the madhhabs of the imams in transmission and argument, and claiming its abrogation is not an easy thing; the deed of the rightly guided caliphs and the great Companions after the death of the Prophet invalidates the claim of abrogation, and those who claim it have neither sunna nor consensus to support their claim, unless one says: "the madhhab of our companions does not permit it", and invoking the madhhab of one's companions as an argument is unacceptable. Ibn Farhun al-Yamuri the Maliki reports that the Malikis permit the ta'zir by property, with a detail he mentions in his book of hisba: Malik, asked about adulterated milk, answered: no, it is not poured away, but I see it given as charity if he is the one who adulterated it; he said the same of adulterated saffron and musk, little or much; Ibn al-Qasim differed on the much: let it be sold to those who would not be cheated with it, and its price given as charity, to discipline the cheat.

Al-Damiri the Shafi'i: in the earlier school, the ta'zir by property is permitted. Ibn Taymiyya: the ta'zir by property is permissible, in destruction and in taking, and it proceeds on the basis of Ahmad, whose companions do not disagree that the penalties upon properties are not abrogated, all of them; the statement of Shaykh Abu Muhammad al-Maqdisi: "nor the taking of the punished one's property" points to what the tyrannical rulers do. The hadith invoked by those who permit: "of every grazing herd of camels, forty... whoever gives it has its reward, and whoever withholds it, we shall take it and half his property, as a binding ordinance of our Lord; the family of Muhammad has nothing of it" (reported by Abu Dawud, 1575, hadith judged good).

Ibn al-Qayyim comments in his haashiya on the Sunan of Abi Dawud: most of the scholars hold that misappropriation in charity and spoils does not entail a pecuniary fine, and say: this was at the beginning of Islam and was then abrogated. Al-Shafi'i argued the abrogation by the hadith of al-Bara ibn Azib about what his she-camel spoiled: it is not reported that the Prophet doubled the garam, but only that he judged there the liability. Some see in it a mere threat, to deter the doer; others say the right is exacted from him in full even if half his property perishes: of the man who had a thousand sheep and kept only twenty, ten sheep are taken for the charity of the thousand, which is half his remaining property or half his property; this is very far-fetched, for he did not say: we take half his property. Ibrahim al-Harbi: "it is: and half his property", meaning his property is made two halves and the collector chooses, taking the charity from the better of the two halves, as a penalty for his withholding of the zakat; what is not obligatory, no. Al-Khattabi: I do not know this interpretation, the last of his words. By the apparent of the hadith: al-Awza'i, Imam Ahmad and Ishaq ibn Rahawayh, according to what is detailed of them. Al-Shafi'i in the earlier school: whoever withholds the zakat of his property, it is taken from him and half his property is taken as a penalty for his withholding, and he argued by this hadith; in the later: only the zakat is taken from him, nothing else; he made the hadith abrogated and said: that was when the penalties were upon property, then they were abrogated. Whoever holds Bahz ibn Hakim trustworthy must excuse the hadith as set out; whoever holds that one does not argue with him needs none of that; al-Shafi'i said of Bahz: "he is not an argument", which suggests this appeared to him after his excuse over the hadith, or that he answered it under the hypothesis of its validity; Abu Hatim al-Razi said of Bahz ibn Hakim: a shaykh whose hadith is written but with which one does not argue; al-Busti: he erred much. Ahmad and Ishaq argue with him and narrate from him; a group of our imams abandoned him; but for his hadith "we shall take it and half his property, as a binding ordinance of our Lord", we would have counted him among the trustworthy, and Allah was consulted about him, and his narration of this hadith was made the obstacle to counting him among them. Ali ibn al-Madini: the hadith of Bahz ibn Hakim from his father from his grandfather is sound. Ahmad: Bahz ibn Hakim from his father from his grandfather is sound, and whoever rejects this hadith has no argument, and the claim of its abrogation is a null claim: it is a claim without proof. The legal establishment of the pecuniary penalties has several hadiths of the Prophet whose abrogation is not proven, and the caliphs applied them after him; the objection by the hadith of al-Bara about his she-camel is of the weakest sort: the penalty is only justified if the punished one transgresses by withholding an obligation or committing a forbidden thing; what arises without his offense and his intent, no one justifies punishing him for. Carrying the hadith as a mere threat, without the reality, is of the most corrupt and unbecoming of the Prophet's words; carrying it as the taking of the remaining half after the loss is void, so far does it stand from the meaning of the words: "we shall take it and half his property". Al-Harbi's saying: "half by the weight of shugl" is of the most corrupt, known to none of the people of hadith, and belongs to a copying error.

The lapse of the ta'zir through repentance

The sheet opens on a case: the Hanbalis forbid the ta'zir by shaving his beard, because of the mutilation it involves; and this is the purport of the statements of the Hanafis and the Malikis, though the author found no explicit statement with them.

The lapse of the ta'zir through repentance: most of the jurists declared that whoever commits an act of disobedience against Allah and then comes repentant is not punished, by what Ibn Mas'ud reported:

A man kissed a woman, came to inform the Prophet of it, and Allah revealed: And establish prayer at the two ends of the day and at the approaches of the night: good deeds take away bad deeds. The man said: Messenger of Allah, is this for me? He said: for all of my community.

reported by al-Bukhari (503) and Muslim (2763)

In the narration of Muslim: a man came to the Prophet and mentioned that he had had of a woman a kiss, or a touch, or something below the indecency; the touch means intercourse, and the meaning is: I enjoyed her by kissing and embracing and every kind of enjoyment except intercourse. From Aisha: a man came to the Messenger of Allah and said: I am burnt; he said: why? he said: I possessed my wife by day in Ramadan; he said: give a charity; he said: I have nothing; he made him sit, then two slaves carrying food were brought, and the Messenger of Allah ordered him to give them as charity (reported by Muslim, 1112).

Al-Bukhari titles a chapter: whoever commits a sin below the hadd and then informs the imam incurs no punishment after repentance if he comes seeking a fatwa; Ata said: the Prophet did not punish him, and Ibn Jurayj: he did not punish either the one who had intercourse in Ramadan, nor Umar the companion of the gazelle. Ibn Battaal: the scholars agreed: for the sin that carries a hadd, repentance does not lift it, and the imam has no right to pardon once the deed reaches him; of repentance are the purification and the expiation by the hadd, except al-Shafi'i, of whom Ibn al-Mundhir reports: if he repents before the hadd is inflicted on him, it lapses. As for whoever commits a sin below the hadd and then comes repentant: his repentance lifts the punishment from him, and the ruler does not object to it, rather he confirms the sincerity of his repentance and orders him to hold to it so that it spreads and the sinners repent: see the Prophet, when he perceived in the man who had possessed his wife in Ramadan the remorse for his deed through his fright and his words "I am burnt", he neither punished him nor rebuked him, but gave him what he could expiate with; and the hadith of Abu Uthman from Ibn Mas'ud that al-Bukhari alluded to without citing it is the clearest thing in this chapter. Al-Ayni confirms it: no punishment after repentance; the ta'zir that carries no hadd lapses from the repentant man, and the imam does not object to it but confirms his sincerity and orders repentance so that it spreads.

This holds for the disobedience against the right of Allah; against the right of a servant, it is not permitted to lapse except by the waiver of the one who holds the right. The Malikis: the ta'zir purifying the right of Allah lapses from its holder if he comes repentant, unlike the ta'zir for the right of a human: it lapses only if the holder of the right pardons. The Hanbalis: the imam has the right to apply the ta'zir if he sees it, and the right to leave it if he comes repentant, confessing, with remorse and quitting appearing from him, by the hadith of Ibn Mas'ud: a man came to the Prophet and said: I met a woman and did with her all that is below penetration; he said to him: did you pray with us? he said: yes; he recited to him: good deeds take away bad deeds (reported by al-Bukhari, 526, and Muslim, 2763). And if it is a human right that the wronged one claims, it is due to him to answer it, and the ta'zir lapses only by the pardon of the holder of the right.

Practical note

The ta'zir draws the flexibility of the system: with no fixed quantum, it follows the offender's rank and the public interest, from verbal reprimand to detention, with a clear frontier: no one takes the property of another without a legal cause, and no one punishes the one who comes back repentant for a right of Allah. The attributions reported here are those of the mawsu'a sheets, to be checked in the cited sources.