An exploration into the debates over hadd and ta zīr

The essential difference between hadd and ta‘zīr has long been accepted in Islamic penal system. Based on a study of the holy texts and the statements of the scholars it can be asserted that the rule according to which ‘the type and size of the hadd is defined by the legislator, whereas the type and amount of the ta‘zīr would only be determined by the Islamic ruler’ is not comprehensive and lacks universality. Hence, the jurists have not reached a consensus about crimes including sexual intercourse with the wife in Ramadan, apostasy, corruption on earth, and etc. in terms of their hadd or ta‘zīr punishments. Therefore, according to the rule ‘Ta‘zīr punishments should be lower than the hadd’, it can be stated that for the ta‘zīr offenses similar to hadd violations, the size of punishment must be smaller than the hadd. However, this rule does not apply to the new crimes. Consequently, based on the rule ‘Ta‘zīr punishments are those decided by the rulers,’ and due to the universality of the term ta‘zīr, and for the best benefit and interest of the Islamic society, and with the goal of eradicating corruption from the earth, the Islamic rulers can freely determine the type and amount of punishment.