The Concept of Ta'zīr al-Shadīd in Ottoman Criminal Law: An Examination Based on Classical Islamic Law and Ottoman Fatwā Collections
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Tarih
2025
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Dergi Başlığı
Dergi ISSN
Cilt Başlığı
Yayıncı
Hitit Univ
Erişim Hakkı
info:eu-repo/semantics/openAccess
Özet
Classical fiqh sources mention that ta'zir punishments can take various forms, such as admonition, reprimand, flogging, imprisonment, exile, public exposure and death penalty. The Ottoman Empire, which based its legal system on Islamic law, extensively implemented ta'zir punishments. These punishments are documented in sources such as q & amacr;n & umacr;nn & amacr;mes, fatw & amacr; collections and shari'a court registers (shar'iyya sijill & amacr;t). This study focuses on the ta'zir punishments mentioned in Ottoman-era fatw & amacr; collections and it examines the crimes in which the terms ta'zir and particularly ta'zir al-shadid are used in these sources, in addition to cases where ta'zir punishments such as admonition, public exposure, dismissal from office, exile and imprisonment are explicitly mentioned. In cases where the punishment is explicitly stated, there is no ambiguity regarding its nature. However, when the punishment is referred to simply as ta'zir or ta'zir al-shadid, various interpretations about its nature have emerged. Since these terms were incorporated into Ottoman fatw & amacr; collections from classical fiqh sources, the study first examines the usage of ta'zir and ta'zir al-shadid in Islamic legal literature, outlining their theoretical background. After analyzing the usage of these terms in classical fiqh sources, the study investigates crimes that warranted ta'zir al-shadid punishments in Ottoman fatw & amacr; collections. In this context, the study addresses the concept of ta'zir al-shadid as used in Ottoman fatw & amacr; collections, based on both classical Islamic legal literature and the fatw & amacr; compilations themselves. Although these terms have been interpreted in the literature as the judge imposing any punishment deemed appropriate, it has been determined that in the Ottoman legal system, the term ta'zir, which is used absolutely without any further explanation, generally refers to flogging, while the term ta'zir al-shadid always denotes flogging and often refers to the maximum number of lashes that can be administered as ta'zir. This usage is found to be based on classical fiqh sources. The study cites numerous examples from Ottoman fatw & amacr; collections indicating that the term ta'zir al-shadid was commonly used to refer to flogging. Then, in order to make a comparison with the examples in classical fiqh sources, examples of ta'zir al-shadid punishment for crimes such as sodomy (liw & amacr;ta), marriage without hulla, adultery with incomplete conditions, false accusation of adultery (qadhf) and murder are given. In this context, as seen in the examples above, ta'zir al-shadid played a significant role in crimes that warranted a hadd punishment but could not be implemented due to deficiencies in the required conditions. It has been determined that in Ottoman fatw & amacr;s, the punishments prescribed for such crimes were expressed with the term of ta'zir alshadid. As reported in classical fiqh works, in such cases, the perpetrator was deemed liable for the maximum number of lashes, and the judge was not granted the authority to impose any other form of punishment. Some Ottoman fatw & amacr; collections even contain direct inquiries regarding the nature of the ta'zir al-shadid punishment, reflecting ongoing interest in this matter during the Ottoman period. Interestingly, these inquiries predominantly focus on the quantity rather than the nature of the punishment. Indeed, the questions were directly associated with the punishment of flogging, and responses were sought regarding the number of lashes for ta'zir al-shadid punishment. It is understood from the fatw & amacr; questions that ta'zir al-shadid was known to refer to flogging however due to the disagreement within the madhhab regarding the maximum number of lashes applied as ta'zir, there was curiosity about the opinion preferred in the fatw & amacr;. The fatw & amacr;s provide details on the maximum number of lashes allowed under the Hanafi school of thought, referencing differing opinions within the school. For instance, Ab & umacr; Hanifa (d. 150/767) and Im & amacr;m Muhammad (d. 189/805) set this limit at 39 lashes, while Ab & umacr; Y & umacr;suf (d. 182/798) set it at 75 lashes. It is observed that these different views were reflected in the Ottoman fatw & amacr;s and mostly Ab & umacr; Y & umacr;suf's view was preferred. Additionally, some Shaykh al-Isl & amacr;ms, in accordance with the Hanafi understanding of ta'zir, have considered not only the number of lashes but also the severity of the beating within the scope of ta'zir al-shadid. In conclusion, the concept of ta'zir al-shadid emerges in classical Islamic law and Ottoman law as a form of punishment in which flogging is administered in proportion to the severity of the offense. The description of the punishment as shadid does not stem from the imposition of a severe ta'zir penalty but rather from the notion, as stated in classical fiqh sources, that the flogging applied in ta'zir should be more severe than that in hadd penalties.
Açıklama
Anahtar Kelimeler
Fiqh, Ottoman Criminal Law, Fatw & amacr, Collections, Ta'zir, Shadid
Kaynak
Hitit Theology Journal
WoS Q Değeri
N/A
Scopus Q Değeri
Q4
Cilt
24
Sayı
1
