Tazir: Discretionary Punishment according to Ibn Taymiyyah

Ibn Taymiyyah talks in his book As-Siyasah ash-Shar’iyyah about tazir, its reasons, and its extent. I will provide a non-direct translation of what he says.

Sins That Get Tazir

Sins that do not have a prescribed hadd punishment or kaffarah for them are given a tazir punishment.

Examples of these sins include:

  1. A man kissing a boy (like in bacha bazi) or kissing a non-mahram woman he is not married to
  2. Sexual acts outside marriage short of complete intercourse
  3. Eating what is not permissible, like blood or maitah (non-halal meat).
  4. Slandering about something other than Zina
  5. Breaking trust, like people who are responsible for taking care of charity money
  6. Partners of business cheating
  7. Cheating and lying in your business to sell things, like those who deceive people about food and clothes
  8. Cheating in measurement
  9. False testimony
  10. Bribery, like judges who change their ruling for bribery

Severity of the Tazir

Those who commit sins should be given a tazir punishment to make them an example for people and to teach them a lesson and correct them.

The severity of the punishment should be according to what the ruler considers appropriate based on the prevalence of the sin, the type of sinner, and the seriousness or size of the sin.

  • Prevalance of sin: When a sin is more prevalent, its punishment should be increased as opposed to when it is rare.
  • Type of sinner: The punishment of a repeat offender should be increased as opposed to the one who did it only once or twice.
  • Seriousness or size of sin: Someone who molested many women and children is punished more than the one who only molested one woman or child.

Minimum Tazir

There is no minimum to tazir. Rather, anything that is considered disliked, be it action or speech, can be considered tazir. It is possible someone could give a man tazir by scolding him, or avoiding him, or not giving salam to him until he repents, according to what the maslahah (common benefit) entails.

Like when the Prophet (SAW) and the companions avoided and shunned ⟪the three who were left behind⟫ (9:118). The Prophet and the companions also used to remove people from their positions of power as tazir.

The sinners can also be punished with imprisonment, beating, or darkening their faces and making them ride on an animal backwards. It was reported Umar (RA) did the last one with a person who gave false testimony.

Maximum Tazir

As for its maximum, there are a lot of different opinions.

  1. Some said it should not exceed 10 lashes. This opinion is based on a hadith that will be mentioned later.
  2. A large amount of the scholars said that its maximum limit is that it has to be less than the hudood. This opinion is further divided into two groups:
    1. One group said it should not reach the smallest hadd at all.
    2. The other group said it should not exceed or reach the hadd of a crime of the same type even if it exceeds the hudood of other types.
      • A thief who stole less than the nisab cannot be punished with a tazir more than the cutting of his hand even if he is punished with lashes more than the lashes of slander.
      • A person who commits something less than Zina can only be punished with less than the hadd of Zina (100 lashes) even if he is punished more than the hadd of slander (80 lashes). So, punishing him with 85 lashes would be acceptable.
      • Among the evidence for this:
        • It was narrated that a man forged the Caliph’s seal in the reign of Umar (RA) and used it to get a lot of money from the bayt ul-maal. Umar (RA) had him lashed 100 times, then 100 more times the next day, then 100 more the third day.
        • It is also reported from the Rightly Guided Caliphs that they punished a man and woman found under the same blanket with 100 lashes.
        • It was also narrated from the Prophet (SAW) in a disputed hadith that the one who sleeps with the slave of his wife is lashed 100 times if the wife permitted him and stoned if she did not permit him.
      • This is the best and most apparent opinion.
  3. There are some non-hadd crimes whose deserved punishment even reaches the highest hadd: execution.
    • This is the opinion narrated from Malik. An example is a Muslim spy who spies on the Muslims for non-Muslim countries. Ahmad was silent when asked whether a man like this should be executed.
    • It is also narrated from Abu Hanifah that execution is possible for repeated crimes whose type can be punished with execution as a hadd. An example is repeated sodomy which can be punished with execution according to Abu Hanifah because of its repetition and because adultery, a crime of the same type, can be punished with death.

The Shafiis were mainly divided between the two groups of opinion 2. The Hanbalis mazhab has all of these opinions. The Hanafis and Malikis were in opinion 3.

Some used the execution of magicians as evidence for opinion 3 because most people agree magicians should be executed, but others said magicians are executed not as tazir but as hadd. Their evidence is a (debated) hadith of the Prophet (SAW) commanding their execution.

There is also debate over whether the callers to clear bidah that opposes the Quran and Sunnah can be executed. Some allowed their execution and others forbade it.

Some said a person who causes fitnah and corruption may be executed if that is the only way to stop his corruption. Among their evidence is:

The Prophet (SAW) said: “Anyone who tries to divide the affair of this Umma while they are united you should strike him with the sword whoever he be.”

Sahih Muslim 1852

Narrated Daylam al-Himyari:

I asked the Prophet (ﷺ) and said: “Messenger of Allah! We live in a cold land in which we do heavy work and we make a liquor from wheat to get strength from if for our work and to stand the cold of our country.” He asked: “Is it intoxicating?” I replied: “Yes.” He said: “You must avoid it.” I said: “The people will not abandon it.” He said: “If they do not abandon it, kill them.”

Or the Prophet said: “If they do not abandon it, fight them” in the narration of Abu Dawud

Sunan Abi Dawud 3683, Musnad Ahmad 18034

Reasons of Punishment

There are two reasons a punishment is given:

  1. A punishment given for a sin that has been committed in the past. It is given as a fair compensation for what the sinner earned and as a deterrent from Allah. Examples of this include the lashes for drinking and slander, the cutting of hands for the thief and robber, the tazir for a thief who stole less than the nisab, and the tazir for someone who deceives in business and gives false testimony.
  2. A punishment given to force someone to fulfill an obligation or leave a prohibition in the future. Examples of this include how a person is punished for leaving Salah, Zakah, or the rights of people until he does them. Tazir in this type is greater than the tazir for the first type. That is why he can be lashed or punished repeatedly until he fulfills the obligation due on him.

Explaining the Hadith of Ten Lashes

A hadith in Sahih Bukhari and Muslim mentions:

The Prophet (SAW) said: “No one should be lashed more than ten lashes except in one of the hudood of Allah.”

Sahih Bukhari 6848, Sahih Muslim 1708

Many people of knowledge have explained “hudood” here to mean what was forbidden by the right of Allah because “hudood” in the usage of the Quran and Sunnah refer to the separating lines between haram and halal, like the limit of halal or the beginning of haram.

An example of Allah using it to refer to the limit of halal is when Allah says about the laws of divorce: ⟪These are the hudood of Allah, so do not transgress them.⟫ (2:229). Meaning, this is the minimum that is halal, so do not fail to uphold these laws.

An example of Allah using it to refer to the beginning of haram is when he says about the prohibition of having relations with one’s wife while in itikaf: ⟪These are the hudood of Allah, so do not approach them.⟫ (2:187).

As for referring to the prescribed punishments with the word hudood, that is later terminology. So, it cannot be used to explain the hadith.

So, the hadith means: Whoever hits or lashes someone for his own right, like a husband punishing his wife for rebellion, cannot exceed 10 lashes.

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