International Journal of Advanced Biotechnology and Research (IJBR) ISSN 0976-2612, Online ISSN 2278–599X, Vol-7, Special Issue-Number5, 2016, pp1440-1446 http://www.bipublication.com

Research Article

The Effects of Taziri Punishments on Jurisprudence and Substantive Law

Razieh Najafi Department of Law, Sowmesara Branch, Islamic Azad University, Sowmesara, [email protected]

ABSTRACT Tazir crimes refer to punishments which are not predefined and reflects the flexible of jurisprudence. It also allows for much greater flexibility in how it punishes an offender and recommends a framework consistent with the time and location. AsHaddoffensesand premeditated offenses against human life arethose included Qisaswhich are limited and happens relatively low, however, many crimes are considered Tazir crimes.Since,the study oflaw's innovations in regard toimprisonment calibration in Tazircategories and their impactare considered as a new topics,maythere will besome serious problemsto legislatethe law such asthe lack of adequate space for prisoners, the lack of accurate diagnosisabout the circumstances while perpetrating a crime andfail to appropriate management in prison by the authorities.The current study investigate the effects ofTaziripunishments on the enforcement of punishments consisting of deprivation of liberty in jurisprudenceand the Islamic Penal Code adopted in 1392.

Keywords: , Taziri, TaziriPunishments' Effects on Law, Taziri Punishments' Effects on Jurisprudence

1. INTRODUCTION Justice, security, maintaining order, respecting along with technological and scientific advances the individual and social rights and values such that have occurred in social levels.The vast as these are considered as an important tool in majority of new crimes areunder the category of achieving for humans. Throughout history, Taziri crimes. On the other hand, although many people have tried to reach it and have scholars have been studied the endured hardships.It is obvious that one of the variousjurisprudential issues, and despite the factors affecting the full realization of these importance of Tazirat crimes, has not been affairs is enforce criminal law, hence, the performed much researches about it. The most experience has shown that credit concepts will obvious reason for this policy is that eyewitness be take objective concept when they be realization of Tazir punishments is under the supported by the criminal justice system.In fact, jurisdiction of governor and depends on the the implementation of Taziri criminal laws,in development of Imam's authorities and addition to make satiety the sense of justice and establishthe political system based on the enable the process of its development and Imamate. society,can help to regulate the correct Due to the government was possess cruel relationships and respect individual rights and governor, Shiite jurisprudents believed that restore order and security. entering the political scene and responsible for Since, Tazirrules involves many crimes, so it is judicial affairs to assist the tyrant. Also, jurists the most principle part of this chapter. claim that discussion and expression of the Nowadays, variety and the emergence of new Tazirat's details issueless because the judicial crimes is undeniable and increasing gradually, system was attributed to tyrannygovernments The Effects of Taziri Punishments on Jurisprudence and Substantive Law which were ineligible;thus, they suffice to offenders from reoffending (Saduq, 1418: 228). propose in generalities about Tazirat stuff in It also refers to punishment for offenses at the Hudud law. discretion of the judge () or ruler of the Following the Revolution of Iran, led by Imam state for specific sin and it is less than Hadd Khomeini Supreme Leader was cases. preparedimplementation context forTaziratcase Tazir is infinitive of Az'azmeans to deter and and increased research and remark on it; prevent as the word of Allah Ta'azaruh (:) however, what is done,is not means dispose the enemies of his, but it refers to sufficient.According to the Shiite jurisprudence chastisement about a crime with no Hadd and is comprehensive, complete and dynamic in all atonement in the law (Saduq, 1418: 228). fields and humanity has always needs to it and it 3. The effects resulting from the can be effective in human evolution, Messenger implementation of Tazirat in of God Holy Prophet Muhammad (peace be jurisprudence(Figh) upon him and his progeny) saying: Allah said it 3.1. Preventing recidivism is necessary that experts on legal issues, extract Prevention in this case, means all measures that the Tazirat sentences in such a way as can be implemented to combat crime, whether, respond to needs of the present time based on community reaction against crimes such as general and certain foundations which the pure punishment or Security and Corrective Measures Imams (AS) have expressed about the Tazirat and compensation for losses of the inflicted and other rules,so that the judicial system can person, personalize punishments and granting take advantage of them. parole and alternative punishments instead of AsTazirat case of the Islamic Penal Code which imprisonment, rehabilitation and any action in involveda major crimes, is the most functional efforts to revise of the offender and prevent part of the Penal Code, and the most of its recidivism in the future. Moreover, other aspects material is repetition of the General Penal Code of social reaction that are performed in order to adopted in 1304 and its subsequent amendments, reduce or eliminate the causes of delinquency especially in 1375 entered some materials in andcrimes to counteract the offenders' family Tazirat which was not predicted law passed in and social environment factors which are 1362. It was better that other criminal laws effective in developing crime and activities to which also have similar provisions in the Penal prevent the actualization of offenders' criminal Code were incorporated in this legislation and ideas in the community as well.Thus, the resolve the ambiguity regarding bribery, prevention in generalconcept involve the whole embezzlement, breach of trust. range of prevent crime revise offenders including criminal and non-criminal (Ardebili, 2. CONCEPT OF RESEARCH 1392: 235). Literal meaning the wordTazirischastisement If individuals punish after the first crime, many and SahebeRiyaz (Seyed Ali Tabatabai) of them due to fearing punishment, do not explained that (Tabatabai, Bita: 196-198). If the commit crimes again. This is considered one of punishment is not determined, it named Tazir the goals of punishment in the words of the which the chastisement is theliterally means of Imams (PBUH), as quoted a Christian man who it.Tazir literally means disgracing the criminal became Muslim recently cooked pork to eat.He for his shameful conduct. Alzobeydi said that in was brought to the Amir al-Mu'minin (Arabic). Tajolaros:Tazir is named"lum" which means The Imam said: 'Why did you do that? Christian blame. replied that I was sick and I would love pork as Definition of law (Shariah) of Tazir: well. Holiness stated: the eating of pork Ibn al-Athir in Alnhayh mentioned that a forbidden in Islam and replaced by goat meat. discretionary punishment (tazir) define to Then he added: If you eat it, Hadd is prescribed prevent or discourage from acting, therefore, for you as punishment and were punished chastisement that be less than severely. Now you'll be beaten until do not it HaddisknownTazir, because it cause to prevent again!(HurrAmeli, 1408: 56).

Razieh Najafi 1441 The Effects of Taziri Punishments on Jurisprudence and Substantive Law

3.2. Intimidation and to set an example 3.4. Economic security and social order Often the obscene deeds of offenders who taint Varying degrees of security and social order is to sin is also impressive other people in society an important issue in any community to ensure and may lead to the deviation of them. While the performing constructive activities. guilty personbe punished,many people do not Eighth Imam, Ali ibn Musa al-Reza (PBUH), dare to do illegality. In fact, Tazirpunishment is regarding the cause of amputation of thief's hand as a general prevention of crime. says: In a we read that if anyone has sex with It means that the reason of cutting off the hand an animal, the animal should be killed and in the stealing, in addition to the punishment of burned and25 lashes strap the person committed the thief, to show an example to the others, so down.The narrator asked from Imam (as):What they don't to seek property by rights abuses of is animal's guilty? each other. Holiness answered:the animal is innocent, but The argument that the Imam expressed in this the Prophet (pbuh) did this so that people would narrative, represent the economic not dare this action of gratifying his lust by securityimportanceand it is not dedicated only to animals and followed by humanities days could the Hadd punishment for stealing and contain be over (HurrAmeli, 1408: 256). everywhere to be infringing on the rights of 3.3. Chastisement of offenders others. All human beings have not a unified taste, 3.5. The fight against corruption thought and culture, so it is different training The corrupt person in the community can methods and modify and improve them, some develop corruption. It is necessary that the by encouragement, some by threats and corrupt person be kept away from society warnings and the other with violence and punishable by imprisonment or exile as Ta'zir, assault. orHadd, so that corruption does not spread to Thus, if the preaching does not influence on the other people. offender and did not stop crime by enjoining It has been narrated that the Amir al-Mu'minin good and forbidding wrong,there is no way to get out of Kufa to fight Nahrovanian, appointed discipline him but punishment. There are a man named Hani bin Oud, as his successor in that have been interpreted as ta'zir, so that there. He wrote that two people called Ghani IshaqibnAmmarquotes from Imam Sadiq: and Bahaleh foment among the people, Holiness One who eat corpse, pork, blood must be through a letter ordered todeport them from the chasten, so if it reiterated he must be chasten Kufa to prevent corruption (Khoi, 1377: 45). once again. 3.6. Purification from sin Imam Sadiq (as) narrates:A group were brought The implementation of Hudud and Tazirrules up Amir al-Mu'minin. People witnessed that purify Muslim from guilty and is considered they are thefind they had confessed to his crime atonement of sins. The Amir al-Mu'minin didn't as well. The Prophet ruled that the Hadd lay Hadd punishment for anyone, unless punishment for stealing. determination of Hadd punishment destroy his Allaah has condemned this action and decreed sin, so that payment of debt eliminate debt of an appropriate punishment for it. He ordered the owed. hadd punishment for thieves that was to cut off Also, in some narrations noted that, sometimes their hands. guilty persons went to Imams and asked that Then, he commanded to his servant, Qanbarif purify them by performingHadd punishments, they repent after the implementation of Hadd because the world suffering is more convenient punishment, you may compensate the loss from the Hereafter. On several times, he refused incurred due to amputation. to carry out the Hadd using indoctrination stuff According to another narrative The Prophet said which prevented the offender of his guilty plea. to them: It is better for you that repent and Butif applicable requirements may implemented reform yourselves, and God join your hands to the Hadd punishments ultimately. Of course, as you in heaven (Ibid., 224). has been narrated, repent and apologize to God

Razieh Najafi 1442 The Effects of Taziri Punishments on Jurisprudence and Substantive Law in the secret is better from this method. It is said for this difference? The only thing that can be that one of the purposes of runningHudud is highlighted is that legislator tried stay faithful to purifying the offender from crime. This is not the originalpunishmentsspecified in the related to Hudud, because if the implementation lawwhich are ta'ziratMansus and the same words of it makes purify the offender, the Imams and scholars and was rely on to whatever implementation of Tazirat should have a fortiori been in hadiths. Although, it may be said that of this feature, for the reason that Hadd crimes first, it is not clear these determinations be and their punishments isbigger than mandatory and inviolable and unchangeable.In Taziricrimes(Khoi, 1377: 247). Therefore, other words, they are not as unchangeable rules implementation of the Taziri punishment is which in certain circumstances cannot be eliminated the eternal one. Hadd also has been changed. Secondly, Imam didn't stated that refers to Tazir in some narrations, as Imam whether the use of alternative punishment is Sadiq (as) considering the Tazir punishment permissible or not for expediently or to avoid a which accusing the other one had said: loss (Karimi, Beata, 85). Punishment eliminate by the implementation of Article 83: the care courses arethose that during Hadd or Tazir, but the necessity of repent them the convict is condemned to perform one remains for offenders. or more of the orders contained in delayed care 4. The effects of Tazirat on The Islamic Penal to a court order and supervised by the judge Code responsible for implementing the provisions as It is crucial to identify and determine the follows: canonical Mansus (determined) taziratto apply In crimes which their legal punishment is in several articles of the Islamic Penal Code ninety-one days to six months in prisonand also adopted in 1392, such as: Article 69 that reflects crimes that their type and extent of taziris not those responsible for crimes who the type and determined in substantive law, six months to a extent of their tazir punishment has not been year (Shambayati, 2013: 26). In this section also defined in substantive law and they are substantive lawis ambiguous and there is a need sentenced to substitute punishment for for clarification and demystified andthe above imprisonment (Shambayati, 1392: 25). In regard same problems and questions arises why this to be consistent with the psychology topics and does not include crimes according Mansus penology, Islamic legislator is (authoritative) Tazirat. Another important cases intendedpunishments as a substitute punishment concerning TaziriMansus punishments are for imprisonment with certain conditions. It is several articles which Article 115 is as follows: also in this regard, but the question that arises Article 115. Note 2: Provisions of this article what is the purpose of the substantive law in the and paragraph (b) of Article (7) and paragraphs context of that article? Whether it involve only (a) and (b) of Article (8) and (27), (39), (40), the Islamic Penal Code, which is mentioned (45), (46), (93), (94) and (105) of this law do not special law enacted in 1392 and earlier 1370 and consist of the canonical Mansus (determined) other resolutions? Or it includes all the laws tazirat(Shambayati, 1392: 27). The reason for enacted in Islam and which covers this discrimination and segregation do not MansusTaziri punishments that are indicated in indicate by the legislator why repent regulations canon, although, there has been only a rough are not involved Tazirat of Mansus, while,the indication of them, however, they are not law is noted thatthe supreme leader could even presented in law passed in 1392? There is also a back down from punishment in Hudud rulesand like this article under Article 83, paragraph (b) forgive the offender in some situations. Why we that we will be investigated in following. The cannot applied this rule of pardon onTaziri opposed concept of this Article is that crimes punishments. Why does not apply the counting which are determined their punishments in rules of temporary detention period, exemption substantive law, in result, they are not from punishment, postponement of sentences, convertible into alternative punishments instead suspension of sentences, probation for children, of imprisonment.The question is what is reason postponed or suspended punishment of children

Razieh Najafi 1443 The Effects of Taziri Punishments on Jurisprudence and Substantive Law as well as passage of time related to Mansus not mentioned in that get act in accordance Taziri punishment cases? Article 167 of the constitution of Islamic Apparently the same prejudice and consolidation Republic of Iran) (Shambayati, 2013: of legislator is on the Imams words and hadiths. 39)considering the severe of offense and its With this interpretation, because the Imams punishment this is especially not justified. (AS) have determined the punishment of the Legislator has operated in this case also crime and there was not suspension, pardon and according to the same adherence paradox to the passage of time etc., therefore, should be Shari'a and Islamic law on the one hand and followedthe text and implemented it exactly. global relation and human rights issues on the Among the other very important and other hand. In fact, there has long been controversial casesis vice punishment thatin disagreement about the among scholars Article 127 of the Islamic Penal Codestates: If and jurists, whether it is in the category of not specified a punishment for vice in law, the Hudud or Tazirat and TaziratMansus and should punishment would be as follows: (Shambayati, the legislator offered a clear statement in this 2013: 38). Assistance examples in the law which regard, that it is a big crime and has a severe their punishments were specified directly are punishment is and he would determine his limited.The Tali and Rade is just in banditry and position and duties of judges and the judicial Moharebeh, as well as, observer in the robbery system. Article 135- The multiplicity of crimes and murder. The problem arises is inconsistent punishable by hadd and tazir and also and with the principle of legality of crime and tazir crimes, punishments gathered and at first punishment.Legislator could bring these vice Hadd or Qisas go to plan. Unless Hadd or Qisas, cases whichis intended punishment for them be deprivation of life and ta'zir, independently in the law, and since they were Haghgholalnasand legal defined tazir, and if it limited it was not difficult. And consequently to does not in fact cause a delay to implement of declare the vise's Punishment, did not refer to Hadd, in which case the tazir shall be imposed the law and did not act in conflict with the first.(Shambayati, 2013: 40) where the legislator principle of legality. (Ardebili, 2013: 115). It has not explained the reason for this can be said that legislator has not mentioned to discrimination and the reason for the difference legal punishmentsentered explicitlyin Article could be found. 127 of the Law of the Islamic Republic to Approach of new law, predicting imprisonment determine the vise sentence and discussions on and the inclusion of some degree of it in human rights and international image of the traditional and new alternative punishment is country. Because today, the desire for eye- deprivation of liberty without having to comply popping, that is the legal punishment of observer with basic standards. The framers of The Islamic in the robbery and murder is despised that could Penal Codewith respect to some degree, to cause disgust against the judicial system of the consider offender deserve for alternative country, on the other hand due to enforcement punishments instead of imprisonment such as the holy law and its rulings could not ignore deferral decision, suspending the operation of these sanctions and was investigated them the parole and alternative punishments, briefly, and as a result, only confuses the judges postponement of the verdict, the suspension of and the parties. As in this case also raised in punishment's implementation,parole and half apostasy. In regard to apostasy, although, free institutions and even alternative sentences apostasy contrary to the initial bill of the penal instead of imprisonment. As mentioned above, code were raised as a part of Hudud,to remove it one of the effects of tazirrating, is the ability to in The Penal Code adopted in 1392, but in apply substitute institutions for imprisonment Article 220 of The Islamic Penal Code, the institutions in order to implement de- judge is to decide the criminalization and to incarceration in criminal law.It seems that the declare the Punishment for apostasy under authorities of preparation in this law had Article 167 of the constitution (Article 220 The violated implementing de-incarceration in some Islamic Penal Code about the Hududwhich are cases. In fact, the legislature has ignored

Razieh Najafi 1444 The Effects of Taziri Punishments on Jurisprudence and Substantive Law codification economy that is to minimize legal Shia scholars, in addition to preserving them errors,and this can follow negative have helped people to gain knowledge of them consequences on the practice, for instance by the correct interpretation and analysis. On the suspending to implement the punishment in other hand, the existence of different instincts in certain degrees of tazir to include this humans and the desire to satisfy them, may lead institution, while in the former Islamic Penal to breaking the law and misinterpreting of the Code, all Taziri and preventive crimes under rules and rights abuses the individual and the conditions had the capability of suspension.On community. Considering that violation of the the other hand, in cases where in the current law, rules and perform forbidden inhibit the growth a crime has a maximum and and perfection of the guilty person and others, minimumpunishment, they consist oflow-grade Islam considers necessary to punish the offender Tazirat in minimumpunishment and high-grade asHudud, Tazir, Qisas and Diyya to preserve the Tazirat in maximumpunishment. In order to rights and avoid corruption. According to the adapt to the new law, it must be subject to a high Islamic perspective, the implementation degree and that means reducing the use of ofHudud and Taziratis very important, in fact, leniency institutions through a Note that can itis a kind of fight against human's obstacles. It cause to implement de-incarceration is stated in the and the words of the significantly. One of the effects this kind of Prophet (PBUH) and the Infallible Imams grading is inability to implement some of the (PBUH) in different interpretations. As have institutions foreseen in the new law. Due to said that implementation ofHudud and Tazirat entering a higher degree of ta'zir, strayfrom causes establish Justice and makes humans institutions like postponement of the verdict, the happiness. In Imamiyah jurisprudence has also suspension of punishment's implementation, been agreed on the principle and jurists on the parole and half free institutions and that is the basis of the legal rules and evidence such as lack of consistency with its framers goal that is famous hadiths decree to forbid the prosecution de-incarceration. Therefore,tazir grading is an of offenders who have committed crimes in innovative method in the Penal Code which its coercion, duress and necessity conditions.Under framers adapted from French public criminal the terms of the legal arguments and legal law and have predicted the effects of passage of foundation, judges and courts are not allowed to time, suspend verdict and implement it.Among punish someone unduly and unreasonably, but it the notable measures in new law we can is necessary sentence to punishment, to be mention to de-incarceration approach that in documented commit a crime by a criminal. addition to reduce maintenance costs the Principles of criminal law suggest that prisoners, can provide more favorable implementation of punishment is equally for all conditions for the socialization of people as commit a crime and to prove it. The offenders.However, it must be said that there criminal law doesn't allow the differences isn't the necessary study in order to apply the between individuals to punish, in other words, rating in this field and by compatibility of the there is equality on all punishments.According former Penal Code with these levels of Article to this principle, in the punishment would be 215, we will be faced with the escalation of considered a criminal offense, not to criminal imprisonment on a large scale. character, thus be determined in proportion to the severity of the violation.The penalty for CONCLUSION crimes which are the same type is the same for According to Islam, human is asublime and holy all regardless of the degree of the offender. creature with unmarried spiritthat has the Thus the fundamental distinction between potential to grow to perfection to reach the Islamic criminal law and legal other systems is summit of happiness and to achieve this purpose that in these systems, people's thoughts, Allah has send the necessary legislation and customs, desires and habits are origin of rules rulings by the prophets, especially the Holy and resource to determine guilt. But in the legal Prophet of Islam (pbuh) to people. Imams and system of Islam Allah is the legislator and

Razieh Najafi 1445 The Effects of Taziri Punishments on Jurisprudence and Substantive Law resources to determine the crime arecommands jurisprudence where Saint Legislator has of Allah and his messenger. delegated authority generally to the governor. The criterion and objectives of the legislation in In other words, in the Imamiyah jurisprudence, the criminal law is the preservation of social governor has full authority to determine the type values and interests.The legislator considering to and extent of Tazir punishment. However, in people's emotions, political and social demands criminal justice is based on the legal situation, and requirements legislate them and believe that because the main purpose of tazir in Islam the criterion of crime is disruption the order and chasten and dissuade criminal to commit crime, violation of rights, while, in Islam criminal law so there are different punishments for different according tothe specific criteria and rules, the offenders, and finally,it is better to know preservation of social values and interests is thatTaziris not violence. only one of the objectives of the legislation. In fact, the Imamiyah jurisprudence and criminal REFERENCES: law have achieved to a conditional settlement in 1. Shambayati, H., (2013), The Islamic Penal this goal.Of course there are other specific goals Code, Tehran, Majd Ed.; that marshaling justice, virtue ethics, human 2. Karimi, H. (2012), Bita, judicial standards dignity and elevating him to perfection be from the viewpoint of Imam Khomeini, Bija, perhaps the most important of them. Hence,a Bina; punishment has been determined to any action 3. Ardebili, M. A. (2012), General Criminal that somehow conflict to human precious Law, Tehran, Mizan Ed. morality.Contrary to common rights law not 4. Tabatabaei, M. (2000), Leadership in Islam, care about the ethical issues and maintain it, Qom, Imam Sadiq [Bita]; unless the harmful social threaten its security.In 5. Tousi, Sh. M. H. (1997), Alkhlaf, the the criminal law, the legislator decides to punish Association of Teachers of Qom offenders according to the index that are (JameModaresinHozeElmieQom). available and jurisdictions with regard to the 6. HurrAmeli, A.(1985), Wasail Al Shia, Vol. crime and its punishment that is sometimes 18, Chapter 7 ofAbwab Baghiyeh Alhudud variablebetween minimum and maximum, and Altazirat. to punish the offenders, and it is contrary to 7. Khoei, H. (1998), Minhaj-ul-Bara'ah,Nahj al- Islamic taziri punishment in the Imamiyah Balagha, Qom, Darolelm Ed.

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