The Principles of Ta'zir and Hudud in Hanafi Jurisprudence: A Comparative Study in the Context of Contemporary Legal Thought

Abstract

This paper, The Principles of Ta 2 zir and Hudud in Hanafi Jurisprudence: A Comparative Study in the Context of Contemporary Legal Thought, represents a detailed study of the criminal law in the Hanafi jurisprudence, its theoretical basis, rules of evidence, and its compatibility with the modern criminal justice systems. The study explains that Hanafi fiqh takes a fine line between justice, mercy and welfare of the people (ʿadl 10, raḥmah 11, and maṣlaḥah 12), to deliver justice without infringing human dignity. The paper will start with a definition and distinction between hudud (fixed) and taʿzir (discretionary) and will underscore the fact that hudud are those penalties that are divinely sanctioned and their evidentiary presentation is to be followed without compromise, and that taʿzir will be a form of punishments that the judiciary will have flexibility in addressing the changing needs of the society. It expounds the ‘maxim al-Hudud tadrak bi-l-shubuhat (doubts prevent the application of hudud) as an exercise of the Hanafi focus on care, justice and safeguarding of the innocent. The paper applies a comparative approach and compares the Hanafi jurisprudence with the contemporary secular legal systems. Though the deterrence and rehabilitative approach is prevalent in modern law, the moral correction and spiritual reformation is incorporated in the Hanafi law. It highlights the discretion of the qadji (judge), whose judgment in taqzire cases is determined by the rules of siyasah sharafiyah (Islamic government) so that justice and reform over punishment are met. The study also examines the application of Hanafi principles like qiyas (analogy), istihsan (juridical preference) and urchuf (custom) to facilitate flexibility in dealing with modern day crimes such as corruption, computer crimes and environmental crimes. It claims that the Hanafi system fits the contemporary human rights norms by insisting on procedural fairness, rigidity of evidence, and guard against wrongful punishment. Finally, the paper affirms that the Hanafi penal code is corrective and not punitive. It is founded upon mercy, justice, as well as social order with the goal of rehabilitating the offenders and protecting the welfare of the population. By incorporating Hanafi into modern-day legal practice, the moral and ethical aspects of criminal justice will also be enriched by a reassertion of the perennial applicability and common-sense of the Islamic jurisprudence in the creation of a just and humane society.

Keywords: Hanafi jurisprudence, Hudud,Taʿzir, Islamic criminal law, Siyāsah Sharʿiyyah, Human rights, Contemporary legal thought