مطالعات فقه اسلامی و مبانی حقوق (Mar 2023)
Analyzing Taʿzīr (Arabic: تَعْزير, discretionary punishment) in the Prohibitions of Sharīʿah (Arabic: شَريعة, Islamic Religious Law) and the Violation of Government Regulations
Abstract
The limits and place of “Taʿzīr” (Arabic: تَعْزير, discretionary punishment) as the main punishment in the laws and regulations that are more applicable should be clearly defined. Punishments are divided into “Taʿzīr Mansūs Sharʿī” (Arabic: الْتَّعْزیرُ الْمَنْصُوصُ الشَّرْعِيُّ, religious and legal stipulated discretionary punishment) and “Taʿzīr Mansūs Sharʿī for committing Sharʿī prohibitions and violating government regulations”. Explaining the difference between Taʿzīr in committing Sharʿī prohibitions and violating government regulations is the purpose of this research. Taʿzīr in committing Sharīʿah (Arabic: شَريعة, Islamic religious law) prohibitions are different in the realm of taʿzīrāt and whether it is Ḥaqq Allāh, (Arabic: حَقُّ الله) or the right of God or Haqq al-Nās (Arabic: حَقُّ النّاس) or the right of people, as well as including the enforcement of Dar’ (Arabic: دَرْأ, ḥudud avoidance in the case of doubt) rule. It is understood that taʿzīr has more positions than taʿzīr in committing religious prohibitions because of violating the rules of government in order to preserve public interests, order and building healthy social relations. The characteristics of this ta'zir are: Constructive (Arabic: إعْتِباري, abstractive), based on community and also general deterrence to taʿzīr in the committing of prohibitions. The practical rules such as the principle of individualization of punishment, proportionality and the inclusion of the rule of Dar’ (Arabic: دَرْأ, ḥudud avoidance in the case of doubt) can also be applied in this part of governmental discretionary punishment. Consequently, the concept and field of taʿzīrāt (discretionary punishments) should be determined by the division that the legislator has submitted in order to clarify the rulings on which they are based.
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