Searching into the Evidences on the Inclusiveness of Discretionary Punishment

Concerning the prohibited or obligatory actions for perpetrating or abandoning of which no punishment has been established، the act of determining discretionary punishment is entrusted to the Muslim judge. An important and meaningful question is raised here as to whether this kind of punishment would include all the unlawful actions and abandoning? In other words، are all legal sins and misdemeanors legally punishable or the Muslim judge would announce just a part of it as punishable? According to the generally accepted legal viewpoint، the legal judge can، if he deems it expedient، penalize (practice ta‘zīr on) the one who has perpetrated an unlawful (ḥarām) act (and some maintain that the unlawful act has to be a cardinal sin)، but ta‘zīr should be less at a lower level than ḥadd (legal punishment). The renowned majority of Imāmī and Sunnī jurists have accepted this theory. In contrast، some jurists، including Muḥaqqiq Ardabīlī، have cast doubt on the judgment itself that any unlawful act deserves to be punished through ta‘zīr. Some contemporary jurists have also concluded that there is no reliable evidence that the perpetrator of any unlawful act would deserve ta‘zīr. Some have، even if accepting the judgment itself، interpreted the extent of ta‘zīr in such a way that it would include admonition، advice، reproach، and threat، as well. It is attempted in this article that while making an analytical statement of the viewpoints of the two sides، the viewpoints of the jurists who agree with this judgment to be seriously criticized and to prove with a dominant legal perspective that there is no jurisprudential or legal evidence for discretionary punishment of any unlawful act and consequently، this viewpoint is not to be easily taken as a foundation for legislation.