Discretionary Punishment (Ta’zir) in Islamic Jurisprudence and the Islamic Penal Code

Abstract

Abstract Chapter 3 takes up the first type of punishment incorporated into the Islamic Penal Code of 2013 under the rubric of ‘ta’zir’. The definition, sphere, and limits of the discretionary punishment (ta’zir), as it occurs in Shiite Islamic jurisprudence, are discussed to elucidate a theoretical justification according to which Iranian legislators have criminalized a wide range of behaviours. The chapter focuses on the critical evaluation of how the religious coercive rule of ta’zir is supported by the Constitution in practice and how it can be applied by criminal court judges as an instrument for punishing a sinner whose sin has not necessarily been codified as a crime in the Islamic Penal Code (i.e. at a judicial level). Accordingly, the argument points to the fact that we are facing a so-called umbrella sentencing theory that not only addresses deliberate rule violations stipulated in the Islamic Penal Code but also an unwritten catalogue of sins.