التعزير بأعمال القرب

Abstract EN

Punishments in Islamic Shari'a were legislated to safeguard people’s respected interests, and the judge’s authority in assessing the punishment for Ta'zir crimes "discretionary crimes" extends beyond simply ensuring that conditions and controls are met, as it’s the case with Qisas "retribution" and Hudud "fixed punishments" cases, to choose the type and amount of punishment to suit the gravity of the crime on the one hand and the seriousness of the crime's perpetrator on the other.

However, this discretionary authority is limited by a legal framework and precise penal controls, which the judge may not deviate from or exceed.

What supports the expansion of the judge’s authority in discretionary punishments is the continuous development that characterizes the new crime, which often exceeds the framework of the penal legislative system, which aims to reduce the crime, which requires speed in taking the appropriate punishment, even if it is far from the halls of legislative parliaments, which is often issued after the crime has passed beyond the reach of the legislative text that criminalizes the act and determines an appropriate punishment for it.

This requires expanding the authority of the judge who is examining the subject of the crime to immediately choose the appropriate punishment in a way that ensures limiting the expansion of the crime, considering the proportionality between the punishment and the crime, and taking into account the motives of the crime, its effects, its circumstances, and the crime's perpetrator.

Therefore, this research sheds light on the issue of expanding the scope of the judge’s discretion in assessing the discretionary punishment to reach the obligation to do an act that is essentially an act of closeness and obedience that brings one closer to Allah, such as memorizing some of the Holy Qur’an, obliging him to pave a road, or participating in the work of aiding the injured on the faraway roads.