I thought this might be an interesting article to post with respect to the nature of discretionary punishment in an Islamic legal system.
The Concept of Ta’zir in The Islamic Criminal Law
by Mahfodz Bin Mohamed
Definition of Ta’zir
Literally, the word ta’zir is a verbal noun (masdar) from the verb azzara which means to stop or bring something to a halt.  It can also be interpreted as "to help" as can be found in the al Qur’an
Looking at the other side of the coin, ta’zir means respect or honour. This, is so as when one receives a ta’zir penalty, consequently the bad deed is avoided and simultaneously, his self respect or pride is preserved. This penalty is named ta’zir because its existence cheeks criminals from doing or repeating the bad deeds.
From the Shari’ah point of view, ta’zir is defined as a sentence or punishment whose crime is not fixed by the Shar’iah, for doing disobedience or offence which is not inflicted by the hadd and kaffarah punishment.  It is up to the ruler (wali al amr) or the judge to determine its rate, as being practised by the qadis in the early period of Islam such as Abu Musa al Ash'ari, Qadi Shurayh, Ibn Abi Layla, Ibn Shabramah, 'Uthman al Batti and others.
However, the Islamic government has the right to impose this ta’zir rule with its detailed relevant facts fixed, including the rate of punishment to be received by the criminals, which must be in accordance with the degree of offence done. This is very necessary as offences whose details are determined by the Shariah such as those under hudud and qisas are very few compared to those classified under ta’zir penalty. In other words, types of ta’zir offences are much more greater in number than those of hudud and qisas offences. As such, it is very important that the rulers make a specific guideline or law to deal with offences which cannot be classified either under hudud or qisas. This will then lead to the preservation of the religion's dignity, which is obligatory. 
The Caliph ‘Umar b. 'Abd al-‘Aziz once decided to form a special rule pertaining to the ta’zir, that is to make the fatwa of the "Ahl Al-Madinah" from the Companions and the followers of them (tabi’in) as a law to be complied to without question. And this is to be obeyed to the extent that no single qadi should make a decision which is not in line with their fatwa. Nevertheless, this never became a reality. ‘Umar b. 'Abd al 'Aziz passed away before having the chance to complete it. Such is also the case of Abu Ja’far Al Mansur, the second Caliph of the 'Abbasiyah dynasty who ordered Imam Malik to compile the six sources of authentic hadithes (Sunan Sittah) in a single book. Albeit his success in doing so, Imam Malik forbid the Caliph and the others after him to make it as a law because according to him, people in different places have their respective Sunans from the Companions and followers (tabi’in) which they have followed earlier. 
Ta’zir – A law from Allah
In spite of the fact that the wali al amr or qadi has the authority to determine the rate or degree of the ta’zir punishment using his own wisdom and discretion (Ijtihad), the ultimate freedom in doing so is not given to them. It is of supreme importance that the ta’zir penalty must be in line and accordance with the text (nass) of the Shar', their general principles as well as the spirit of al Shari’ah itself.  So as to ensure that the penalties and punishments set by the wali al amr are regarded as an Islamic ta’zir law and not a man made one, the scholars of Islam had laid down several very important and specific condition. The most important one is that the wali al-amr who rules the country must implement the hudud law and adhere to the Islamic teachings. Only if this condition is fulfilled, then only the wali al amr can be considered as a leader with personal integrity  (‘adil). Allah said in the Holy Qur'an: 
"and if any fail to, judge by (the light of ) what God hath revealed, they are (no better than) wrong doers". ( 5:48)
Besides the condition already mentioned, there are 4 others to be met by the ta’zir penalty: 
- The objective of making such penalty is to preserve certain importance regarded as a must and very essential in Islam to be treated as so, such as the life, body, religion, material possessions and mind. It is not for the sake of lust, evil or even individuals. This is vital because the importance of Islam and the importance .of lust/evil are separate entities and will remain distinct, the one from the other, forever.
- The punishments are made to deter the bad deeds, or at least to reduce them. As such, the punishments must not bring harm or damage which is not in proportion to the crime done. They are. made not to smirch the fact that man is the best creation on earth and worth nothing, ta’zir is not what some might say a form of abuse. It is a lesson to be remembered and a basis for self improvement.
- There must be a highly considerable proportion of punishment to the crime done - not more, not less.
- The applied ta’zir penalty must be complied to by everybody in the community, disregarding of the individual's or group's position no exception at all.
Types of ta’zir offences
In the Shari’ah, the classification of the types of ta’zir offences is not mentioned in the Qur'an, hadiths or any other sources of Shari'ah unlike the hudud and qisas. This, as mentioned earlier, resulted in wali al amr having the authority to determine its types or classifications. Actually all types of offence other than hudud and qisas fall under ta'zir.
According to Prof. 'Abdul Qadir 'Audah,  the ta’zir offences can, be divided into 3 categories: (1) Ta’zir because of committing sinful acts (ma'siyah). (2) Ta’zir because of transgressing the public interest. (3) Ta’zir because of committing minor offences.
I. Ta’zir for Committing Sinful Acts
As explained earlier, ta’zir is the penalty or punishment given for committing sinful acts which cannot be punished under the hadd or kaffarah punishment. Sinful acts, or ma'siyah, is defined as neglecting the obligations fixed, and reversely, doing those forbidden by the Shariah.  The scholars of fiqh divide ma’siyah into 3 parts:
- Sinful acts for which the evil doers receive the hadd punishments and at times the kaffarah punishments as well, such as murders, thefts, illegitimate sexual intercourse (zina) and other hudud, qisas and diyat offences.
- Sinful acts for which the evil doers receive kaffarah punishments only, for example: having sexual intercourse in the daylight in the fasting month of Ramadan, and so while in ihram. There are, only few sinful acts under this category: offences damaging the fasting and ihram activities, cancelling oaths and having sexual intercourse while in the period of menstruation or zihar. The scholars have different opinions pertaining to whether or not this type of ma'siyat can be given ta'zir punishment. However, the widely accepted opinion is that one should receive both the ta’zir and kaffarah punishments. 
- Sinful acts for which the evil doers do not receive hadd nor kaffarah punishments. Most sinful acts come from this category, and they fall under one of the following types:
- Sinful acts for which its original punishment is hadd but then receive ta’zir penalty because the conditions of the add principles/essentials are not fulfilled. Examples are stealing things less than the nisab (the rate/amount of things stolen at which the thief is considered guilty) or stealing things which are not kept well and secured.
- Sinful acts for which its original punishment is hadd but is then dropped out because of either there is obscurity (shubahat), such as having sexual intercourse with wife through her anus, or there are certain exceptional for example a father killing his own son, which is excluded from receiving the qisas and hadd punishments but not the ta’zir.
- Sinful acts which do not receive the hadd punishment, this type include sinful acts such as eating carcase, drinking blood, cheating, corrupting, bribery, gambling and others.
II. Ta’zir Because of Transgressing the Public Interest
According to the Shari’ah, the ta’zir penalty is not to be applied to cases other than those involving sinful acts (ma'siyat) but in certain cases, this general guideline is excepted. The cases are those concerning the public interest and are not possible to be determined or listed beforehand as it is not the actions but characteristics which are forbidden, as a result of being a threat to the community or public as a whole. 
There are examples showing that ta’zir penalty can be applied to cases where sinful acts do not take place. Once the Prophet (P.B.H.) had imprisoned a man accused for stealing a donkey and only released him after he was proved not guilty.  This means the man was sent to prison after merely being accused (without being proved guilty) and he did not do anything else which is sinful and for which the punishment is being jailed.
In another instance, a child can be caned as a lesson for not performing the prayers although children are not obliged to do so.
They are punished not for neglecting the prayers but so as to preserve the public interest. 
III. Ta’zir on Committing Minor Offences
Scholars have different opinions pertaining to whether or not doing the blame worthy (makruh) and avoiding the praiseworthy (mandub), are considered sinful.  Some say that such cases are not to be considered as offences and thus the persons involved are not to receive any punishments while others view these as otherwise. 
The difference in opinion stemmed from the disagreement these scholars have in defining makruh and mandub. For those saying that makruh and mandub are not the same as forbidden and obligated, respectively, their view is that one who does the makruh and avoids the mandub is not to receive any punishment because only mukallaf people can receive punishments. To others, makruh and mandub do mean “must not' and 'must', respectively. From their point of view, doing the makruh and not doing the mandub are not right, and punishments must be given to whom they may concern. Although these people receive punishments, they are not considered as having committed sinful acts but minor offences (ãÎÇáÝÇÊ).  The reason scholars give for this second opinion is that once Sayyidna ‘Umar Ibn Al Khattab punished a man with a ta’zir penalty where his wrong doing was only that he slaughtered a goat with a blunt knife. What the man was doing was/is makruh, and still Sayyidna 'Umar punished him. 
Types of Ta'zir Punishment for Ta’zir Offences
Ta’zir is a penalty for committing sinful acts which its qadar (rate) is not determined by the Shar'. The punishments can range from just given advice or warning to being jailed, tortured or to the extreme of being sentenced to death for major offences.
Ta’zir penalty is applied to all offences except those dealt with under hudud, qisas and diyat. Hudud, qisas and diyat offences cannot be replaced with ta’zir punishments although when the former cannot. be applied due to the fact that certain conditions are not met. Ta’zir must also not be used as an additional punishment, for example sending those committing zina to banishment and such.
According to the Islamic criminal law, each and every ta’zir offence does not have its respective or well defined punishments as does the positive (civil) law. This is due to the fact that the intervention of the qadi in determining the punishment actually prevents the ta’zir penalty system from functioning efficiently. In ta'zir, the cases and situations of the wrong doers and the. offences committed differ from one to another. That's why the Shari’ah has several types of punishment to cater to many offences, ranging from minor to major or being serious in nature. So it is up to the qadi to choose the best and most suitable punishment in his own judgement so as to get the greatest benefit for the people as a whole.
Among the punishments for ta’zir offences are:
Basically ta’zir penalty is given for the sake of giving a lesson to be remembered by everybody and, it should not go to the extent of harming the criminal such as cutting his hands off or sentencing him to death. However, at times such punishments are necessary, especially when nothing else better could be done, for example to kill those encouraging bid’ah and those repeating major offences. 
This is the type of punishment which is used both for committing hudud offences as well as ta’zir offences. In ta’zir, this is the prime type of punishment used. This is because whipping is very effective in achieving the objective of punishing itself. It deters the criminal from committing crime, does not cause difficulty to the government and does not take the right of the criminal's family away from them. Most importantly, the criminal will not be exposed to bad morality, health hazard and laziness which are faced by those being jailed. 
In the Shari’ah, the length of time of imprisonment is determined in some cases while it is not so in others. The period of imprisonment is usually determined for minor ta’zir offences. The least length of time for any imprisonment is one day (24 hours). The most is six months or a year, according to some scholars, while the others say it is up to the judge to determine it. 
The period of imprisonment is not determined for major ta’zir offence cases where crime done is repeated or cases where nothing else could be done to stop the crime other than putting the criminal behinds bars. To the extreme, one can be jailed for life or until one’s behaviour is improved. 
4. Banishment or exile
Sending the culprit to isolation (to another place) or banishment will bring god both to the culprit and the local people. The culprit can start a new life just as before committing the crime, without having to face the abuse and denouncement of the people who know that he/she is a criminal. At the same time the local people of the place will be safe from any crime that might be caused by the banished culprit.
The scholars have different opinions pertaining to whether or not this type of punishment should be applied to all offences. In the early years of Islam, a man was fined for stealing a fruit which was hanging from a tree with double the value of the stolen fruit. A person refusing to pay that zakat will have part of his/her property taken away. 
Some scholars say that this type of penalty can be applied to all ta’zir offences. However, some others say that imposing fines was abolished (mansukh) after being used for quite some time as it is not the right and appropriate way to curb crimes and wrong-doings.  If it is to be used, then the bad rulers can just seize the people’s property as they wish. The rich can also just pay the penalty without much problem, but not the poor. However, there are scholars who say that imposing fines is appropriate, but still, with a condition that it should be used only as a warning and the money should be returned if there is improvement in the criminal’s behaviour. Otherwise, the fine paid may be used for benevolent and social purposes. 
Fine punishment can also be used for minor offences. It is important that one cannot be jailed for not being able to pay the fine. For in fact, he/she is actually jailed for his/her poverty and not for the crime done. And also, it may seem that jail is for the poor only. This is not in line with the concept of punishment which is for the mankind as a whole, disregarding anyone’s financial situation.
Besides the five aforementioned punishments, there are still others that can be used for ta’zir offences such as crucifying which is meant to inform the public that one is an incorrigible criminal.
For minor offences, light punishments can be used such as warning, advising, dismissing, imposing fines and others.
Notwithstanding these different interpretations imposing of the ta'zir together with hudud penalties can go a long way in curbing crimes and evil practices and establish a society based on 'adl (Justice) and peace.
~ Notes and References ~
- Ibn Manzur, Lisan al‑‘arab, Beirut 1900M, vol. IV, p. 561.
- Al‑Sarakhsi, Al‑Mabsut, Cairo 1324 H., vol. 9, p. 36; Al-Mawardi, Al‑Ahkam
- al‑Sultaniyyah, Beirut, 1402 H., p. 236.
- Abu Zahra, Al-Uquba, Cairo, n.d., p. 84.
- Ibid., op. cit, p. 85.
- 'Abdul Qadir 'Audah, Al-Tashri al-Jina’I al-Islami, Beirut n.d., vol. I, pp. 127‑128.
- Abu Zahra, op. cit., p. 85.
- Al‑Qur’an, 6:48 cf. 5:47.
- Abu Zahra, op. cit., pp. 85‑86.
- Al‑Tashri' al-Jina’i, vol. I, p. 128.
- 'Abdul 'Aziz 'Amir, al‑Ta’zir fi al-Shari’ah al‑Islimiyyah, Cairo, 1957M pp. 63‑64.
- 'Abdul Qadir ‘Audah, op. cit., pp. 130‑132.
- Al‑Kasani, Bada’l al‑Sani’i, Cairo, 1328 H., vol. 7, p. 64.
- Ibn ‘Abidin, al‑Hashiyah, Cairo 1318H, vol. III, p. 251.
- Ibn al-Humam, Sharh Fath al-Qadir, Cairo 1318 H. vol. 7 p. 117
- Al-Kasani, op. cit, vol. 7, p. 64.
- Ibn Hazm, Al‑Ahkam, Cairo n.d, vol. I, p. 43.
- Al-Ghazali, al‑Mustafa, Cairo, 1322 H., vol. I, p. 76.
- 'Abdul Qadir, op. cit., vol. I, p. 155.
- Al‑Hattab, Mawahib al‑Jalil, Cairo 1329 H. vol. I, p. 320.
- Ibn al-Qayyim, al‑Turuq al‑Hukmiyyah, Cairo 1370 H., p. 106.
- 'Abdul Qadir 'Audah, op. cit., vol. I, p. 690.
- Ibn Qudamah, al‑Mughni, Cairo, 1348 H., vol. 10, p. 348.
- Ibn 'Abidin, op. cit., vol. III, p. 260.
- Ibn Qayyim, ‘Ilam al‑Muwaqi’in, Cairo, 1325 H., vol. 2, p. 220.
- 'Abdul 'Aziz 'Amir, op. cit., pp. 332‑336.
- 'Abdul Qadir, 'Audah, op. cit., vol. I, pp. 206‑207.