A jurisprudential study of the rule of "al-Ta'zir fi kul al-Muharram" (forbidden action): A look at its primary ruling or legitimacy under the ruling of the Guardian of the Muslims.

Document Type : Original Article

Authors
Nima Norouzi 1
Abolfazl Asheri 2
1 Assistant Professor, Department of Jurisprudence, Faculty of Sciences and Education, Al-Mustafa Al-Alamiyah University, Qom, Iran.
2 2. Higher Levels, Qom Seminary, Qom, Iran
Abstract
This research examines the jurisprudential foundations of the rule of “al-Ta’zir fi kol al-Amal Muharram” and its role in the legitimacy of Ta’zir in the Islamic penal system. Based on this rule, the Sharia ruler can order Ta’zir for forbidden acts that do not have a Shariah limit. Although this rule is well-known among many Shiite and Sunni jurists, an examination of the verses, narrations, consensus, and evidence of enjoining good and forbidding evil shows that its generalization to all sins does not have a solid basis. In addition to the theoretical analysis of the rule, the article also explores its implementation challenges in Iranian criminal law; including the dual status of criminalization (interference of sin and crime) and the limitations resulting from Article 167 of the Constitution. It also explains the relationship between sin and crime, and it is considered incorrect to equate them from a jurisprudential and legal perspective. Finally, the legitimacy of Ta’zir is at the discretion of the Guardian and his deputies and is only justifiable within the framework of maintaining public order and interests. The findings show that preventive measures, especially cultural and educational measures, should precede punishment, and that punishment should only play a supporting role. Thus, the rule of “reprimand for all forbidden acts” is absolutely unacceptable, but the rule of “reprimand as the ruler sees fit” is legitimate within the scope of guardianship and public interest.
Keywords
Ta'zir, Guardian of Muslims, Crime and Sin, Social Order, Crime Prevention