Tadheer rulings for crimes that do not have a prescribed punishment: an analytical jurisprudential study

Abstract

This study aims to analyze the rulings of discretionary punishment (ta'zir) in crimes that do not have fixed legal penalties (hudud), through a detailed jurisprudential examination of the rationale behind legislation and the mechanisms of implementing ta'zir penalties. The research distinguishes between hudud and ta'zir punishments, emphasizing the importance of ta'zir as a flexible judicial tool that allows judges to determine penalties based on the circumstances of the crime and the offender, thereby fulfilling the Islamic objectives of preserving public order and deterring crime.

The study also addresses differences among the four Sunni schools of jurisprudence regarding the concept of ta'zir and its legislative foundations, presenting analytical case studies of crimes punishable by ta'zir, such as thefts that do not meet the criteria for hudud, and moral or social offenses that hudud do not cover.

Furthermore, the research reviews the criteria used by jurists and judges in determining the type and severity of ta'zir penalties, relying on Quranic texts, Sunnah, scholarly opinions, and contemporary jurisprudential efforts that address societal developments and modern legal frameworks.

In conclusion, the study highlights the essential role of ta'zir within the Islamic judicial system, advocating for further ijtihad and development in light of modern realities to ensure justice and mercy in criminal punishments.