Taʿzīr, in its primitive sense, means “prohibition,” and also “instruction”; in Law it signifies an infliction undetermined in its degree by the law, on account of the right either of God, or of the individual; and the occasion of it is any offence for which ḥadd, or “stated punishment,” has not been appointed, whether that offence consist in word or deed.
(1) Chastisement is ordained by the law, the institution of it being established on the authority of the Qurʾān, which enjoins men to chastise their wives, for the purpose of correction and amendment; and the same also occurs in the Traditions. It is, moreover, recorded that the Prophet chastised a person who had called another perjured; and all the Companions agree concerning this. Reason and analogy, moreover, both evince that chastisement ought to be inflicted for acts of an offensive nature, in such a manner that men may not become habituated to the commission of such acts; for if they were, they might by degrees be led into the perpetration of others more atrocious. It is also written in the Fatāwā-i-Timūr Tashī of Imām Siruk͟hsh, that in taʿzīr, or “chastisement,” nothing is fixed or determined, but that the degree of it is left to the discretion of the Qāẓī, because the design of it is correction, and the dispositions of men with respect to it are different, some being sufficiently corrected by reprimands, whilst others, more obstinate, require confinement, and even blows.
(2) In the Fatāwā-i-Shāfiʿī it is said that there are four orders or degrees of chastisement:—First, the chastisement proper to the most noble of the noble (or, in other words, princes and men of learning), which consists merely in admonition, as if the Qāẓī were to say to one of them, “I understand that you have done thus, or thus,” so as to make him ashamed. Secondly, the chastisement proper to the noble (namely, commanders of armies, and chiefs of districts), which may be performed in two ways, either by admonition (as above), or by jarr, that is, by dragging the offender to the door and exposing him to scorn. Thirdly, the chastisement proper to the middle order (consisting of merchants and shopkeepers), which may be performed by jarr (as above), and also by imprisonment; and Fourthly, the chastisement proper to the lowest order in the community, which may be performed by jarr, or by imprisonment, and also by blows.
(3) It is recorded from Abū Yūsuf that the ruler of a country may inflict chastisement by means of property, that is, by the exaction of a small sum in the manner of a fine, proportioned to the offence; but this doctrine is rejected by many of the learned.
(4) Imām Timūr Tashī says that chastisement, where it is incurred purely as the right of God, may be inflicted by any person whatever; for Abū Jaʿfar Hindūānī, being asked whether a man, finding another in the act of adultery with his wife, might slay him, replied, “If the husband know that expostulation and beating will be sufficient to deter the adulterer from a future repetition of his offence, he must not slay him; but if he sees reason to suppose that nothing but death will prevent a repetition of the offence, in such case it is allowed to the husband to slay that man: and if the woman were consenting to his act, it is allowed to her husband to slay her also;” from which it appears that any man is empowered to chastise another by blows, even though there be no magistrate present. He has demonstrated this fully in the Muntafiʿ: and the reason of it is that the chastisement in question is of the class of the removal of evil with the hand, and the Prophet has authorized every person to remove evil with the hand, as he has said: “Whosoever among ye see the evil, let him remedy it with his own hands; but if he be unable so to do, let him forbid it with his tongue.” Chastisement, therefore, is evidently contrary to punishment, since authority to inflict the latter does not appertain to any but a magistrate or a judge. This species of chastisement is also contrary to the chastisement which is incurred on account of the right of the individual (such as in cases of slander, and so forth), since that depends upon the complaint of the injured party, whence no person can inflict it but the magistrate, even under a private arbitration, where the plaintiff and defendant may have referred the decision of the matter to any third person.
(5) Chastisement, in any instance in which it is authorized by the law, is to be inflicted where the Imām sees it advisable.
(6) If a person accuse of whoredom a male or female slave, an ummu ʾl-walad, or an infidel, he is to be chastised, because this accusation is an offensive accusation, and punishment for slander is not incurred by it, as the condition, namely, Iḥsān (or marriage in the sense which induces punishment for slander), is not attached to the accused: chastisement, therefore, is to be inflicted. And in the same manner, if any person accuse a Muslim of any other thing than whoredom (that is, abuse him, by calling him a reprobate, or a villain, or an infidel, or a thief), chastisement is incurred, because he injures a Muslim and defames him; and punishment (ḥadd) cannot be considered as due from analogy, since analogy has no concern with the necessity of punishment: chastisement, therefore, is to be inflicted. Where the aggrieved party is a slave, or so forth, the chastisement must be inflicted to the extremity of it: but in the case of abuse of a Muslim, the measure of the chastisement is left to the discretion of the magistrate, be it more or less; and whatever he sees proper let him inflict.
(7) If a person abuse a Muslim, by calling him an ass, or a hog, in this case chastisement is not incurred, because these expressions are in no respect defamatory of the person towards whom they are used, it being evident that he is neither an ass nor a hog. Some allege that, in our time, chastisement is inflicted, since, in the modern acceptation, calling a man an ass or a hog is held to be abuse. Others, again, allege that it is esteemed such only where the person towards whom such expressions are used happens to be of dignified rank (such as a prince, or a man of letters), in which case chastisement must be inflicted upon the abuser, as by so speaking he exposes that person of rank to contempt; but if he be only a common person, chastisement is not incurred: and this is the most approved doctrine.
(8) The greatest number of stripes in chastisement is thirty-nine (see [2 Cor. xi. 24]), and the smallest number is three. This is according to Abū Ḥanīfah and Imām Muḥammad. Abū Yūsuf says that the greatest number of stripes in chastisement is seventy-five. The restriction to thirty-nine stripes is founded on a saying of the Prophet: “The man who shall inflict scourging to the amount of punishment, in a case where punishment is not established, shall be accounted an aggravator” (meaning a wanton aggravator of punishment), from which saying it is to be inferred that the infliction of a number of stripes in chastisement, to the same amount as in punishment, is unlawful; and this being admitted, Abū Ḥanīfah and Imām Muḥammad, in order to determine the utmost extent of chastisement, consider what is the smallest punishment: and this is punishment for slander with respect to a slave, which is forty stripes; they therefore deduct therefrom one stripe, and establish thirty-nine as the greatest number to be inflicted in chastisement. Abū Yūsuf, on the other hand, has regard to the smallest punishment with respect to freemen (as freedom is the original state of man), which is eighty stripes; he therefore deducts five, and establishes seventy-five as the greatest number to be inflicted in chastisement as aforesaid, because the same is recorded of ʿAlī, whose example Abū Yūsuf follows in this instance. It is in one place recorded of Abū Yūsuf that he deducted only one stripe, and declared the utmost number of stripes in chastisement to be seventy-nine. Such, also, is the opinion of Zafr; and this is agreeable to analogy. Imām Muḥammad, in his book, has determined the smallest number of stripes in chastisement to be three, because in fewer there is no chastisement. The more modern doctors assert that the smallest degree of chastisement must be left to the judgment of the Imām or Qāẓī, who is to inflict whatever he may deem sufficient for chastisement, which is different with respect to different men. It is recorded of Abū Yūsuf that he has alleged that the degree thereof is in proportion to the degree of the offence; and it is also recorded from him that the chastisement for petty offences should be inflicted to a degree approaching to the punishment allotted for offences of a similar nature; thus the chastisement for libidinous acts (such as kissing and touching), is to be inflicted to a degree approaching to punishment for whoredom; and the chastisement for abusive language to a degree approaching to punishment for slander.
(9) If the Qāẓī deem it fit in chastisement to unite imprisonment with scourging, it is lawful for him to do both, since imprisonment is of itself capable of constituting chastisement, and has been so employed, for the Prophet once imprisoned a person by way of chastising him. But as imprisonment is thus capable of constituting chastisement, in offences where chastisement is incurred by their being established, imprisonment is not lawful before the offence be proved, merely upon suspicion, since imprisonment is in itself a chastisement: contrary to offences which induce punishment, for there the accused may be lawfully imprisoned upon suspicion, as chastisement is short of punishment (whence the sufficiency of imprisonment alone in chastisement); and such being the case, it is lawful to unite imprisonment with blows.