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 According to Lippman (1989, p. 38), and Ramadan (2006, p. 1610), Islamic criminal law divides crimes into three different categories depending on the nature of the right violated:

Ta’zir: Ta’zir is derived from the verb azzar , which literally means,“to discipline with a punishment less than hadd (Academy of the Arabic language, 2004). Ta’zir crimes are considered violations of the right of an individual. These types of crimes range from homosexuality to perjury to trea-son (Vikor, 2005). Al-Mursi (1999, p. 189) defines ta’zir as “a disciplinary and deterrent penalty on certain individual(s) for a forbidden and inappropriate conduct that cannot be punished by hadd, qisas, diya or kaffara(penance).

Ta’zir is performed by whichever method the ruler (or judge) sees is appropriate and deterrent.” Under the heading of ta’zir , the authorities can punish at their discretion all kinds of socially disagreeable behavior from an Islamic point of view such as cheating, gambling, or two unmarried individuals of the opposite sex spending time in a pri-vate place (khulwa) (Bahnasy, 1988, p. 34; Al-Mursi, 1999, p. 191). Ta’zir can even be imposed on those who decline to carry out religious duties such as ritual prayer or fasting (Peters, 2006, p. 66).

According to Stilt (2012, S. 29), Islamic legal scholars typically argue that a ta’zir  penalty should not exceed the lowest hadd  penalty. However, there is a disagreement regarding the determination of the lowest hadd  penalty. The hanafi madhhab, for instance, argued that the maximum ta’zir  should be thirty-nine lashes since the lowest hadd  penalty is forty lashes for a slave who consumes alcohol. Other Islamic scholars argue that ta’zir punishment should be seventy-nine lashes, calculated from a free person consuming alcohol, whereas others refer to a hadith that not more than ten lashes should be given in a non-hadd crime (Vogel, 2000).Disagreeing with other madhahib, Maliki madhhab  does not re-strict the limit of the penalty that can be given under the headings of ta’zir (Stilt, 2012, S. 30). It should be noted, however, that ta’zir penalties are not restricted to lashings. El-Awa (1993, pp. 100-109) categorizes different kinds of ta’zir that were traditionally practiced by Muslim jurists against transgressors. These categories of ta’zir punishments include admonition, reprimand, threat, boycott, public disclosure, fines and the seizure of property, imprisonment, flogging, and the death penalty. However, it should be noted that the death penalty, practiced as a ta’zir punishment, is applied only in cases of high treason, homosexuality, propagating heretical or anti-Islamic doctrines, and to habitual offenders (El-Awa, 1993, p. 109). According to Peters (2006, p. 66), the most common of these ta’zir punishments throughout the history of Islam were flogging, public rebuke, banishment and imprisonment until repentance. An important point to be taken into consideration is that the repentance of the accused prohibits and stops any ta’zir punishment. This is not the case in hadd where repentance does not stop the punishment. Islamic jurisprudence does not provide a clear methodology with regards to dealing with accused persons that could (unfavorably) use this rule merely to avoid ta’zir .

Hadd: The word hudud(or hadd , in the singular) literally means“limits” or “boundaries” (Kamali, 1998, p. 218). Hadd crimes are considered direct violations against the tenets of Allah. The Hadd  category includes theft (punishable by amputation), armed robbery and banditry (punishable by death, amputation of limbs, banishment and crucifixion), extra-marital sex (punishable by death or flogging), unfounded accusation of extra-marital sex (punishable by flogging), con-sumption of alcohol (punishable by flogging) and apostasy or renunciation of Islam (punishable by death) (Al-Mursi, 1999, p. 4; Peters, 2006, p. 53). The punishments prescribed for these offenses are seen as “claims of God (Peters, 2006, p. 54). Because they are specified by God, they are regarded as fixed and cannot be changed. As with the whole body of fiqh, madhahib differ to a certain extent with respect to the required provisions for applying prescribed punishments for each category of crime. Therefore, our analysis of theft under Islamic criminal law will mainly be based on the fiqh opinions with the highest degree of consensus among different madhahib.

 To conclude this research, it is essential to remember that, as with the whole body of fiqh, most islamic criminal provisions did not significantly develop further after the 10th century CE due to the decline of ijtihad  and the rise of taqlid  through the Muslim community.

source: http://www.academia.edu

 

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