Investigating the Nature of the Prescribed Religious Punishments; A Critical Approach from the Jurisprudential and Legal Perspectives

The legislator of Islamic Penal Code has proceeded the policy of separating prescribed punishments from non-prescribed punishments, not presenting a clear criterion and instance in this regard. While, excluding of prescribed punishments from a number of legal entities by the legislator has led to numerous interpretations and many drawbacks. Using a critical-analytical method, this article seeks two aims First, it wants to provide a detailed criterion for prescribed religious punishments (ta'zir). Second, it wants to express the bugs of the legislator's perspective. Therefore, these results are obtained: First, the criterion proposed for the recognition of prescribed religious punishments is predetermined religious penalties that has not minimum or maximum and considering the rule “al-Ta'zir bima yarâhu al-hâkim”, the ruler decides whether or not to execute. Second, legislator's policy of dealing with prescribed religious punishments in terms of being cautious about exercising Islamic penalties and determining the penalties based on discounts is contrary to the goals of ta'zir and not observing a coherent approach to all the rules and regulations of prescribed religious punishments has led to some drawbacks.