Ta'zir Enforcement: Obligation or Discretion

Ta'zir punishments, as one of the penal responses envisaged in jurisprudence, are responsible for addressing a significant portion of offenses and, due to this broad scope, are of considerable importance. One of the determining issues concerning ta'zir is whether its application is obligatory or discretionary. In other words, from a jurisprudential perspective, does an Islamic government have a duty when dealing with ta'zir cases, or does it have discretion in this area? Put differently, does the Islamic ruler have the right to impose ta'zir, or is the ruler obligated to do so?
In this article, by analyzing the jurisprudential evidence supporting the two approaches of obligatory or discretionary ta'zir application, it is concluded that the obligation-based approach lacks reliable support and that religious evidence establishes the discretionary nature of ta'zir. Accordingly, lawmakers are not obligated to criminalize all forbidden acts, and they retain the discretion not to criminalize them.

Introduction

Imami Shi'a jurists generally discuss ta'zir punishments under the section on hudud. Their works indicate that discussions of hudud have greater importance and originality for jurists, while ta'zir punishments have comparatively received less attention. For this reason, issues related to hudud and their implementation have been examined extensively among jurists. Despite the examination of some jurisprudential principles in the field of ta'zir, such as the principle of "ta'zir for every prohibited act," some fundamental issues in this area have remained neglected.

When discussing ta'zir, jurists have used two different types of expressions; some, when explaining ta'zir, have described it as being "for the Imam" (lil-Imam) or "up to the Imam" (ila al-Imam) (Muhaqqiq al-Hilli, 1408 AH: 155; Najafi, 1362: 448; Khomeini, 1395: 510), while others have used expressions such as "ta'zir is obligatory" (yajib al-ta'zir) or that it is "upon the Imam" (ala al-Imam) (Hilli, 1420 AH: 411; Ibn Zuhra, 1417 AH: 435). This manner of expression reflects two different views regarding the scope of ta'zir: first, a view that considers ta'zir to be within the discretion of the ruler of the Islamic community; and second, a view that regards it as the duty and responsibility of the ruler.

This discussion will have a direct impact on various areas of criminal law, with its most significant effect being on the issue of "criminalization." If an act is religiously prohibited and subject to ta'zir, is the Islamic government necessarily required to criminalize that act and then punish it, or is there no such obligation and the legislator remains free not to criminalize the prohibited act?

At present, with regard to some ta'zir offenses, there is public demand for the "decriminalization" of certain acts. This is despite the fact that these acts are considered prohibited according to religious law. If the basis of obligatory ta'zir is adopted, an Islamic government cannot undertake "decriminalization." However, the theory of discretionary ta'zir, just as it does not restrict lawmakers in criminalization, naturally grants them discretion in decriminalization as well. Without any religious limitation, lawmakers may decriminalize offenses whose underlying acts are religiously subject to ta'zir. In this case, the tension between the will and demands of the people and religious rulings will not lead to a conflict between government and society or a state–nation divide.

Accepting the discretionary nature of ta'zir, beyond the discussion of criminalization and decriminalization, also has applications in various areas such as the principle of prosecutorial discretion, plea bargaining, and similar criminal law institutions, allowing these mechanisms to be used within Islamic laws without legal obstacles.

In this article, the authors seek to answer the central question of whether the implementation of ta'zir is discretionary or obligatory.

1. The Presumption in the Implementation of Ta'zir

As a preliminary matter, it must be determined what the presumption regarding the implementation of ta'zir is in the absence of ijtihadi evidence. The significance of establishing a presumption is that once a presumption is proven in any matter, it must be adhered to, and one may depart from it only where external evidence exists. In cases where there is no evidence and uncertainty remains, one must rely on the implications of the presumption. The implication of this discussion in the present article is that if the theory of obligatory ta'zir is considered contrary to the presumption, it is the proponents of obligation who bear the burden of providing evidence, while proponents of discretion do not need to provide proof. Conversely, if the evidence presented by those advocating obligation is insufficient, the opposing approach is established automatically and without the need for additional evidence.

The addressee of the divine ruling regarding the implementation of ta'zir is the ruler of the Islamic community. If the ruler is uncertain whether there is an obligation in this regard, this constitutes a legal doubt concerning obligation. The implication of the presumption of innocence in such a doubt is that no duty rests upon him. Therefore, the practical presumption regarding the implementation of ta'zir is the absence of obligation.

As established in usul al-fiqh, freedom from obligation is the presumption, while a ruling requires evidence. In other words, if there is doubt regarding the obligation of something, the legal presumption of innocence establishes that no duty is imposed upon the legally responsible person. Therefore, the presumption, as stated by some jurists, is that implementing ta'zir is not obligatory (Safi Golpaygani, n.d.: 76). Accordingly, proponents of the obligation approach must prove something contrary to the presumption through their evidence. In reality, if the evidence of those who claim obligation does not establish this approach, the opposing view is proven by virtue of the aforementioned presumption.

2. The Obligatory Nature of Ta'zir Implementation

According to some jurists, implementing ta'zir is obligatory. This is sometimes stated explicitly (Fazel Mohaqeqi Lankarani, 1427 AH: 280), and sometimes inferred from expressions such as ta'zir being "upon the Imam," such that the apparent wording of jurists' statements has been regarded as evidence for this view (Montazeri, 1409 AH: 311). The obligatory nature of ta'zir itself contains two approaches: absolute obligation and conditional obligation. The common point between these two approaches is acceptance of the initial obligation in all cases of ta'zir. However, in the first approach this obligation is absolute, making the legal duty of implementing ta'zir resemble the technical concept of hudud. In the second approach, however, the absence of public interest in applying ta'zir constitutes a legitimate obstacle to this obligation, and in such cases the obligation of ta'zir may be abandoned.[1]

For this reason, this approach comes close to the theory of discretion to a considerable extent. Jurists who advocate obligation have presented four different arguments in support of their position.

2.1. Hadith Sources

The reports relied upon by proponents of obligation can be divided into four categories: narrations containing declarative expressions, narrations containing imperative verbs, narrations indicating the conduct of the Infallibles, and narrations suggesting that every prohibited act is subject to ta'zir.

The first category consists of narrations containing declarative expressions such as "u'azzar," "yu'azzar," and "alayhi al-ta'zir" (see: Amili, n.d., vol. 18: 451–452).

According to a principle in usul al-fiqh, declarative expressions, because they are based on the assumption of the realization of an act and their effect on the addressee, convey the meaning of a command and consequently obligation; indeed, they are even stronger and more emphatic than imperative forms in conveying this meaning (Montazeri, 1409 AH: 312). In other words, the use of declarative sentences in the context of issuing a command indicates that the speaker intends to express the obligation of the matter in question. On this basis, the presence of such expressions in the statements of the Infallible means a command from the Infallible to carry them out and ultimately the obligation of implementing ta'zir.

Arguments have been raised against interpreting these narrations as indicating obligation. First, it has been argued that declarative sentences are insufficient to convey the meaning of obligation (Naraqi, n.d., vol. 2: 217; vol. 3: 167). Therefore, declarative sentences in the context of legislation do not indicate obligation, and one must refrain from making such an inference. According to this view, based on the presumption of innocence, declarative sentences are interpreted as recommendations (Rashti, n.d.: 234). However, declarative sentences used in the context of legislation do appear to indicate obligation, and this meaning is readily understood from such sentences. For example, when the Imam is asked in a narration about the ruling concerning two people who sleep under the same covering, and he says that they should receive lashes (Amili, n.d., vol. 18: 367), it is clearly understood that such a person must be lashed, and another interpretation does not seem acceptable. 1. The wording of Article 39 of the Islamic Penal Code closely resembles the approach of conditional obligation. According to this article: "In ta'zir offenses of degrees seven and eight, if mitigating circumstances are established, and after establishing guilt the court determines that the offender will be reformed without execution of punishment, then in the absence of an effective prior criminal record and with the victim's forgiveness and compensation for damages or..."

If we accept the extension of the evidence for enjoining good and forbidding wrong to ta'zir, we are inevitably required to accept the obligation of implementing ta'zir. In other words, the legal duty associated with enjoining good and forbidding wrong is obligation; if ta'zir is considered the third stage of enjoining good and forbidding wrong, then its legal ruling must necessarily follow that of enjoining good and forbidding wrong and, consequently, become obligatory. Therefore, whether the obligation of enjoining good and forbidding wrong extends to ta'zir or not has significant implications. To clarify, accepting the evidence for enjoining good and forbidding wrong does not merely determine the scope of acts subject to ta'zir; rather, it also establishes the obligation to implement ta'zir within that scope. In fact, if this argument is accepted, the applicability of enjoining good and forbidding wrong to any case would result in the obligation to implement ta'zir in that case. In other words, accepting the argument from enjoining good and forbidding wrong does not merely grant the Islamic government the possibility of applying ta'zir; it goes further and obligates it to do so.

It should also be noted that enjoining good and forbidding wrong is a limited and specific argument. In reality, it can establish the obligation of ta'zir only if, at the level of legal determination, we accept that every prohibited act is subject to ta'zir. Otherwise, presenting this argument cannot be considered proof of the obligation of ta'zir. Moreover, even if we accept the extension of the obligation of enjoining good and forbidding wrong to ta'zir, this argument does not establish the obligation of ta'zir except in cases of overlap. For example, where the wrongdoer intends to repeat the act, ta'zir may, with some qualification, be considered obligatory due to the concurrence of the conditions of ta'zir and enjoining good and forbidding wrong. However, overall, this argument must be regarded as narrower than the claim, because it is in no way capable of proving the initial obligation of all cases of ta'zir; at most, it establishes the obligation of ta'zir in cases where the conditions for the obligation of enjoining good and forbidding wrong are present. Therefore, it cannot be used to infer the obligation of implementing all forms of ta'zir.

2.4. Preservation of the Social Order

Many jurists have justified the legislation of Islamic punishments on the basis of the obligation to preserve the social order (Kashif al-Ghita, n.d.: 303; Gharavi Isfahani, 1409 AH: 60; Montazeri, 1409 AH: 309; Makarem Shirazi, 1422 AH: 505; Mousavi Ardebili, 1427 AH, vol. 1: 4). Reference to the obligation of preserving the social order and the prohibition of disrupting it has generally been used by jurists to establish the principle of "ta'zir for every prohibited act" (Khoei, 1428 AH: 408). However, some have considered the preservation of the Islamic order, or the preservation of a just order and proper administration of society, as creating a duty for the ruler to implement ta'zir (Tabrizi, 1376: 269–270; Mousavi Ardebili, 1427 AH, vol. 1: 321–322).

The principle of preserving the social order refers to order in its broad sense, namely preserving the entirety of society and the system of human life (Baghizadeh and Omidifar, 1393: 175–176; Vare'i, 1393: 27; Nobahar, 1398: 53). Therefore, what this principle indicates is that preserving people's way of life and social order is rationally and religiously obligatory, and disrupting it is also rationally and religiously prohibited.

The implication of the obligation to preserve the social order and the prohibition of disrupting it in the field of ta'zir would require the obligation to impose all grounds for ta'zir. This possibility is implausible, and the obligation of preserving the social order cannot be considered proof of the obligation of all grounds for ta'zir. First, there is no rational necessary connection between the obligation to apply ta'zir in every case and the preservation of social order. Second, this principle faces difficulties in proving that all prohibited acts are subject to ta'zir. This is because social order is maintained through fulfilling the duty of commanding the good and forbidding the wrong, as well as through the legislation of hudud and ta'zir mentioned in the narrations; therefore, there is no need to punish every prohibited act (Mousavi Khansari, 1355: 98; Golpaygani, 1412 AH: 154). A principle that cannot generally establish the grounds for ta'zir cannot prove the obligation of implementing all cases deserving of ta'zir. Third, accepting such an implication creates difficulties both at the stage of criminalization and at the stage of implementation, because once every prohibited act becomes subject to mandatory ta'zir, factors such as the inflation of criminal categories would disrupt the social order and especially the judicial system, creating chaos.

In the authors' view, this argument can only establish a general obligation of ta'zir, or the obligation to implement those ta'zir punishments whose absence would harm society as a whole. Preserving society as a whole does not entail criminalizing and punishing every religiously prohibited act that is subject to ta'zir. Therefore, this argument does not provide grounds for accepting the absolute obligation of implementing ta'zir.

3. The Discretionary Nature of Ta'zir Implementation

The second approach regarding ta'zir is its discretionary nature. Historically, this approach preceded the opposing view; however, despite its precedence, some jurists who have addressed this issue have sometimes failed to mention the basis for their claim (Tusi, 1411 AH: 497; Tusi, 1387: 66–68; Golpaygani, 1412 AH: 152; Montazeri, n.d.: 44). At times, there are even contradictions among the views of some of them (see: Montazeri, 1409 AH: 311–314). Of course, the failure to mention affirmative evidence for this approach in the works of its proponents may perhaps be attributed to the fact that this approach, being consistent with the presumption, does not require proof of itself; rather, merely the inability of proponents of the opposing view to provide evidence for their claim is sufficient to establish the discretionary approach.

According to this approach, committing an act subject to ta'zir does not obligate the ruler to apply ta'zir to the offender; rather, it merely transforms the prohibition against interfering with the person into permissibility and grants the ruler the discretion to apply ta'zir. On this basis, the prohibited nature of an act is not a sufficient condition, but only a necessary condition, for criminalization. Therefore, for example, "consuming wealth unjustly" or violating "believers are bound by their conditions" in financial transactions cannot be regarded as sufficient grounds for the intervention of criminal law in legal relations in the strict sense.

An important point in this approach is the significant role of public interest as the criterion for exercising discretion (Safi Golpaygani, n.d.: 75–76). In fact, the ruler's discretion in applying ta'zir should not be interpreted as granting unrestricted decision-making power or denying rational conduct based on public interest. Rather, the ruler is obligated to respect the rights of citizens under his authority, and these rights require consideration of public interest in governmental decisions. In any case, the discretionary view is supported by two arguments: first, narrations and conduct; second, the permissibility of pardon and intercession in ta'zir.

3.1. Narrations and Conduct

The narrational evidence of those who advocate discretion can be categorized into three groups. Sometimes, the apparent meaning and context of expressions found in certain narrations related to ta'zir have been relied upon. According to proponents of discretion, the apparent meaning and context of expressions such as "they are whipped with a punishment that has no fixed time, and that is up to the Imam" (Amili, n.d., vol. 18: 584–585) is, according to common understanding, that ta'zir is at the discretion and under the authority of the ruler. This point can also be inferred from expressions found in other hadiths, such as "We will cause him painful harm so that he does not harm the Muslims" (Amili, n.d., vol. 18: 458) and "Then the governor shall discipline and imprison them" (Amili, n.d., vol. 19: 30) (Hashemi Shahroudi, 1433 AH: 270).[3]

Another group of narrations may also be presented to prove this view. It has been narrated from the Prophet that he said: "Ward off the hudud through doubts and pardon the faults of the noble, except in one of God's hudud" (Maghribi, 1385: 465). Similar narrations have also been transmitted from him (Amili, n.d., vol. 11: 535; Harrani, 1404 AH: 58) or from Imam Ali (Majlisi, 1403 AH: 405), with the difference that hudud are not excluded in them. These hadiths, similar versions of which also exist in Sunni sources, indicate overlooking the mistakes of certain groups of people. If we rely on the command contained in these narrations, the conclusion is that a group of people is certainly excluded from the scope of the obligation of ta'zir. This serves as evidence that the implementation of ta'zir is not obligatory; otherwise, the Infallibles would not have commanded overlooking the mistakes of these individuals.

However, objections may be raised against this interpretation. First, it may be argued that these narrations do not mean overlooking the crimes of specific individuals, but rather pardoning lapses that do not carry worldly punishment (Sadeqi, 1395; Tabatabaei, 1401). In response, it should be said that in the text of these narrations, hudud are sometimes excluded from the general ruling of the narration. Given that there must be a common category between the exception and what it is excluded from, it must be accepted that these narrations also include pardoning crimes. Of course, due to the exception of hudud, the ruling of these narrations applies only to ta'zir.

It may also be suggested that these narrations do not indicate the discretionary nature of ta'zir, but rather contain instructions regarding interaction with those who commit prohibited acts after punishment has been imposed (Montazeri, 1409 AH: 314). However, this possibility is not acceptable, because there is no evidence justifying different treatment of those who commit hudud and ta'zir offenses in the period after punishment has been imposed where there is no textual basis. Perhaps because of these objections or possibilities, proponents of discretion have not referred to this category of narrations in their discussions.

In addition to the narrations mentioned, the conduct of the Infallibles also confirms the ruler's discretion in implementing ta'zir. The general principle in the conduct of the Infallibles during their governance of Muslims was based on punishing offenders. This claim is particularly supported by the narrations mentioned earlier. However, careful examination of narrations and historical reports reveals cases in which the Infallibles, despite the conditions for applying ta'zir being present, refrained from implementing it (Ansari et al., 1385: 110). This clearly demonstrates that the conduct cannot prove the obligation of ta'zir and at most can justify the legitimacy of applying ta'zir (ibid.). Moreover, this appears to be evidence supporting the discretionary view as well, because otherwise we would have to claim that the Infallibles violated the obligation of ta'zir. Of course, it may be objected that these cases should be explained on the basis of the ruler's pardon or the repentance of the accused. However, it seems that not all narrations indicating the non-implementation of ta'zir can be explained on this basis, and the correct view is that the conduct of the Infallibles and even that of unjust rulers, which was not rejected by them, indicates that authority over ta'zir was delegated to the ruler (Safi Golpaygani, n.d.: 76).

Nevertheless, it is possible to raise the criticism that the conduct cannot prove the discretionary nature of ta'zir implementation, because the cases of non-implementation may have been based on public interest. In this case, the conduct appears simultaneously open to interpretation as both conditional obligation and discretion. However, this objection does not seem valid, because the evidence of those advocating obligation is fundamentally insufficient to establish the initial obligation of all cases.

3.2. The Permissibility of Pardon and Intercession in Ta'zir

One way to prove the discretionary nature of ta'zir is to rely on the evidence for pardon and intercession. Accepting the permissibility of these two institutions indicates the discretionary nature of implementing ta'zir. However, some jurists do not consider the existence of a right to pardon incompatible with the obligation of implementing ta'zir (Mousavi Ardebili, 1427 AH, vol. 2: 322–324). Such an expression can also be applied to intercession. In any case, if we accept the ruler's authority to pardon in ta'zir cases, accepting obligatory ta'zir becomes difficult, because in that case the ruler has the right to pardon and may either forgive the offender or punish him. When we speak of the ruler having a right, the obligation of ta'zir loses its force, because no one can be compelled to exercise a right. For this reason, there are three approaches in dealing with this view: 1. To interpret the evidence and narrations containing obligation according to the linguistic meaning of obligation, namely establishment; 2. To consider obligation according to the nature of the act without considering whether pardon applies in that case or not. In other words, to interpret the obligation mentioned in the narrations as an inherent or potential obligation; 3. To interpret the obligation of ta'zir as applying to cases where the person deserving ta'zir has violated a personal right and the right-holder has not declared forgiveness (Montazeri, 1409 AH: 404). Among these three approaches, accepting the third approach appears unlikely due to the specific conditions of its occurrence. If the first possibility is accepted, we must regard the implementation of ta'zir as discretionary; if the second is accepted, we must regard it as obligatory. Such reasoning also applies to intercession, which will be discussed below.

To assess the validity of this claim, we must first discuss the permissibility of pardon and intercession and their scope in ta'zir, and then judge the aforementioned proposition. To achieve the ultimate goal, we must also answer the question of the extent of the ruler's authority in pardon and intercession. In other words, whether this authority is subject to limitations or not.

Three jurisprudential views have been proposed and examined regarding the scope of pardon in ta'zir cases. According to one view, the ruler only has the right to pardon when the crime has been proven through the accused's confession (Tusi, 1400 AH: 714; Ibn Barraj, 1406 AH: 536; Hilli, 1374: 205). The basis for presenting this distinction may be found in the narration from Imam al-Hadi regarding pardoning a person who confessed to sodomy (Amili, n.d., vol. 18: 331–332) and the narration concerning Imam Ali's pardon of a thief who had confessed (Amili, n.d., vol. 18: 331).

A criticism of this view is that the aforementioned distinction applies only to technical hudud, and ta'zir punishments are not subject to this distinction, because the purpose of ta'zir has been described as disciplining and preventing the offender from repeating the crime. Therefore, when this purpose is achieved, there is no reason to apply ta'zir (Makarem Shirazi, 1383: 129).

According to another view, the ruler is only capable of pardon within the domain of God's rights, while in cases involving people's rights, the right of pardon belongs to the victim (Ibn Babawayh, 1415 AH: 213). Many jurists have accepted the permissibility of pardon in ta'zir cases involving God's rights. Pardon in ta'zir cases involving people's rights is considered dependent on the will and request of the right-holder (Montazeri, 1409 AH: 396; Mousavi Ardebili, 1427 AH, vol. 1: 322). The consequence of accepting this view is that the ruler is reduced to the position of merely executing the judgment in cases involving people's rights.

This view, like the previous one, relies on certain narrations. Proponents of this view refer to the authentic narration of Zarīs al-Kinasi. Imam al-Baqir says: In hudud concerning God's rights, only the religious ruler has the authority to pardon, but in hudud concerning people's rights, a non-ruler may also waive punishment (Amili, n.d., vol. 18: 331). The apparent meaning of this narration supports a distinction between people's rights and God's rights; however, contrary to this interpretation, it appears that this narration is intended to deny the right of pardon in God's rights and establish it in people's rights. Therefore, the meaning derived not only cannot be extracted from this narration, but the narration even indicates the existence of the ruler's right to pardon in people's rights (Makarem Shirazi, 1383: 125–126; Ansari et al., 1385: 361).

According to the third view, the authority to pardon is granted absolutely to the ruler so that he may, based on public interest, forgive offenders or punish them. This view also has supporters in Shi'a jurisprudence, and among contemporary jurists some have not distinguished between ta'zir punishments based on the holder of the right (Golpaygani, n.d.: 213; Makarem Shirazi, 1383: 129). The words of some other contemporary jurists are also explicit in this meaning, although their explicit statements in other works contradict this view.[4]

Supporters of this view have relied on several narrations. Some, relying on the generality of the narration of Zarīs al-Kinasi, have established the authority to pardon in all cases of God's rights and people's rights. According to them, in all cases, public interest and the Imam's judgment are the criteria for pardon (Shirazi, n.d.: 134). The narration of Imam Ali regarding the pardon of a thief has also been used in this context. According to this narration, Imam Ali pardoned the crime of theft, which involved a people's right. Two arguments have been presented regarding this pardon. Sahib Jawahir, in explaining this pardon, refers to the Imam's authority over believers and states: "Perhaps because the Imam has greater authority over believers than they have over themselves" (Najafi, 1362: 295). However, a second explanation has been offered according to which the aforementioned hadith is unrelated to Sahib Jawahir's argument, because ta'zir and hudud involving people's rights, in addition to their victim-related aspect, also have a divine-right aspect due to being instances of wrong acts. Therefore, both the victim and the ruler possess the right of pardon in them; meaning that punishment is applied only at the request of both. (Makarem Shirazi, 1383: 127–128). Thus, because carrying out the punishment of amputation requires agreement between the will of the ruler and the victim, and in the case of the narration one of the parties did not wish for punishment, the amputation punishment was not carried out.

In addition to the institution of pardon, accepting the institution of intercession may also be considered evidence for the discretionary nature of ta'zir. Of course, there is disagreement regarding the acceptance of intercession in ta'zir, and some argue that intercession is not accepted in ta'zir cases (Fazel Mohaqeqi Lankarani, 1427 AH: 278). According to them, the term hudud in the principle that intercession is not accepted in hudud also includes ta'zir; therefore, intercession is not acceptable in ta'zir either. However, this view is flawed for two reasons: first, accepting this institution in ta'zir is consistent with the presumption (Safi Golpaygani, n.d.: 82), and in cases contrary to the presumption one must restrict oneself to the certain minimum (Haji Dehabadi, 1399: 288). Second, careful examination of the narrations also shows that intercession is accepted in ta'zir.

According to the narration of Sakuni from Imam Ali, intercession in a punishment established before the Imam is impermissible, while in matters other than hudud it is permissible (Amili, n.d., vol. 18: 223–224). It is also narrated from Imam al-Sadiq that when Usama, one of the companions of the Prophet, interceded regarding a crime subject to hudud, the Prophet told him: Do not intercede in matters of hudud (Amili, n.d., vol. 18: 223–224).

The acceptance of intercession can be clearly inferred from these hadiths. However, these hadiths, in addition to expressing the permissibility of intercession, also indicate another concept. In fact, the dependence of ta'zir upon the ruler's judgment can also be inferred from these narrations (Hashemi Shahroudi, 1375: 72–73), because if the ruler had no discretion in ta'zir and were obligated to carry out punishment, Usama would not have interceded and the Prophet would have prohibited him from doing so. If this meaning is rejected, Usama's action and the Prophet's statement would become meaningless, which is unacceptable. Therefore, stating the general rule of the permissibility of intercession in matters other than hudud clearly means the ruler's discretion in applying ta'zir and pardoning offenders. However, it should be noted that the distinction between people's rights and God's rights in intercession, like pardon, also exists.

A noteworthy point is that proponents of obligatory ta'zir agree on the obligation of implementing ta'zir involving people's rights. However, among jurists who advocate discretion, some do not distinguish between God's rights and people's rights regarding the legal duty, while others, while considering this issue, have ruled in favor of discretion (Safi Golpaygani, n.d.: 77–79).[5]

4. Conclusion

One of the fundamental issues that appears capable of providing the necessary basis for constructing a dynamic criminal law system is determining the jurisprudential approach toward considering ta'zir as obligatory or discretionary. Attention to this distinction clarifies the possibility or impossibility of resolving many important issues and challenges that have consistently been discussed without attention to their jurisprudential foundations.

1. Examination of jurists' views in this field indicates the existence of three positions: absolute obligation, conditional obligation, and discretion, which can be categorized under the two approaches of obligation and discretion. In this article, by examining the evidence for these two approaches, the authors conclude that the discretionary approach is more consistent with jurisprudential evidence.

2. The indication of narrational sources toward the obligation of implementing ta'zir is subject to serious objection, because these narrations either do not address the obligatory nature of ta'zir or conflict with the conduct of the Ahl al-Bayt. In other words, due to the existence of narrations indicating the non-implementation of ta'zir in certain cases, the obligation of implementing ta'zir cannot be inferred from the narrations.

3. When the evidence for obligation is insufficient to prove the claim, the presumption of innocence applies and establishes the discretionary nature. In addition to the presumption of innocence, the ruler's discretion in punishment and imposing penalties can also be established through narrations related to pardon and intercession.

4. Acceptance of the discretion-based approach has important implications for criminal law. Its most important effect is that, under this approach, criminalizing prohibited acts falls within the rights of the ruler. This leads to greater discretion for the ruler in criminalizing or not criminalizing prohibited acts. Beyond criminalization, the Islamic government is still not obligated to execute ta'zir punishments and may, based on policy considerations, suspend or halt their implementation. On the other hand, resolving this distinction also has implications for the type and degree of ta'zir responses. In other words, the effects of this issue are so extensive that they encompass areas ranging from criminalization to rules concerning the determination of the type and degree of punishment and ultimately its implementation, affecting the three fields of general criminal law, special criminal law, and criminal procedure.

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[1]The wording of Article 39 of the Islamic Penal Code closely resembles the approach of conditional obligation. According to this article: "In ta'zir offenses of degrees seven and eight, if mitigating circumstances are established, and after establishing guilt the court determines that the offender will be reformed without execution of punishment, in the absence of an effective criminal record, and with the victim's forgiveness and compensation for damages or arrangements for compensation, it may issue a judgment exempting the offender from punishment." In this article, the necessity of imposing punishment is transformed into discretion where reforming the offender is in the public interest.

[2]See: Qafi and Shariati Farani, 1396: 132.

[3]Entrusting "disciplining and imprisonment" to the governor means entrusting him with full authority to determine the type and degree of this punishment. Moreover, discipline in many cases is achieved without punishment and does not necessarily require it.

[4]"As for ta'zir punishments, it appears that their basis, amount, occurrence, and continuation are in the hands of the ruler, who may pardon them absolutely" (Montazeri, n.d.: 44).

[5]For example, Sheikh Tusi does not recognize a position for people's rights in his statement.