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Haydar Husayn

Proving Adultery - Judge's Knowledge

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Salam,

This is my first post here, although I have been lurking on this great forum for several months. I wanted to ask about something that has confused me for a while now, but was once again brought to my mind by the following article: http://www.guardian.co.uk/world/2010/jul/02/iranian-woman-stoning-death-penalty. In the article it states

Sakineh already endured a sentence of 99 lashes, but her case was re-opened when a court in Tabriz suspected her of murdering her husband. She was acquitted, but the adultery charge was reviewed and a death penalty handed down on the basis of "judge's knowledge" – a loophole that allows for subjective judicial rulings where no conclusive evidence is present.

A search on the internet reveals that article 105 of the Islamic Penal Code of Iran, in the section on punishment for adultery supposedly says

Article 105 – The Shari’a Judge can act upon his own knowledge in the cases of [defending] the God’s Rights (Haghollah) and People’s Rights (Haghonnas) and carry out the punishment constituted by the God and it is necessary that he documents his knowledge. The execution of the punishment in case of God’s Rights (Haghollah) is not contingent upon anyone’s request but in case of People’s Rights (Haghonnas) is contingent on the owner of the right.

http://www.wluml.org/node/3908

I had first done a search on the official-looking http://mehr.org/Islamic_Penal_Code_of_Iran.pdf, however laws 103-107 were missing.

Now, this law is supposed to mean(according to anti-stoning websites and the like) that in cases where 4 witnesses haven't been produced, and there is no confession, that the judge can nevertheless give a guilty verdict in an adultery case.

Assuming all this is true, I would like to know how exactly this law is justified in Shia Fiqh? I had always previously assumed that although the Islamic punishment for adultery, and some other things such as sodomy, was very strict, that on the other hand it was very difficult to prove such crimes. For this reason I was always confused when I read reports in the Western media about stonings and other death sentences for adultary and sodomy. I would always wonder how it was possible that 4 witnesses could be found in such cases. However, taking into account this law about the judge's knowledge, this seems to make more sense.

Something else I came across while looking into this, but for which I haven't been able to find a proper source is

Article 114 of Iran’s Civil codes states: When rajm [stoning] is being administered on a man he must be

placed in a pit almost down to his waist, and when administered on a woman she must be placed in a pit

almost down to her chest.

Female victim up to herneck to avoid physical escape, however, even if condemned female victim is able to flee the scene,

authorities are obliged to arrest her and execute her by firing squad. As for the male victims, they are

buried up to their waist and if able to escape the scene no further punishment awaits them.

Surely this can't be true? Or if it is, can someone explain to me the reasoning?

Sorry for the long post, and I hope someone can clear all this up for me.

Edited by Haydar Husayn

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I posted this up in another thread regarding a women who was about to be executed in Iran :

Where is the proof for any of this? Islam is a religion of Peace yet people interpret it completely differently. Firstly, You need 4 mature males (I think) to have witnessed her crime... do you honestly think she's going to be so explicit about it. Secondly, you have to see what state of mind these people are in i.e are they crazy etc. Then you have to see what state of mind the women was in if it was proved that she committed these crimes. Then when everything is done according to the Islamic Law, she should be punished according to which criteria she fits in.

In my opinion, Iran is not a good role model for us as there have been many false executions without sufficient evidence although executions also take place in America so I'm not implying that Iran is the only country that makes mistakes but as they are an Islamic country, whatever they do will be under the name of Islam which will be reflected badly in our society.This is why the Islamic Sharia will be undertaken perfectly when the Imam of our time appears and when he does people may still do wrong things but the Islamic Shariah will be followed perfectly.

There was a story about Imam Al(as) and I only remmeber it vaguely but it was about Umar or Abubakr who was about to execute a couple of men but Imam Ali came and said because of such and such only send this man to prison and so on so giving the order to execute someone, especially when they are innocent is such a huge task so the judge has to be extrememly careful in such issues which is why they can't easily give the order for execution.

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Firstly, You need 4 mature males (I think) to have witnessed her crime... do you honestly think she's going to be so explicit about it. Secondly, you have to see what state of mind these people are in i.e are they crazy etc. Then you have to see what state of mind the women was in if it was proved that she committed these crimes. Then when everything is done according to the Islamic Law, she should be punished according to which criteria she fits in.
I agree with you sister, but from what I posted above it seems like there is also seems to be some room for the judge to use his own judgement in these cases. I was hoping that someone here would be more familiar with how exactly that works, and could shed some light on it. It's pretty obvious that if the only ways to prove adultary are by having 4 righteous male witnesses who saw the act in extreme detail, or an uncoerced unretracted confession, then hardly anyone would ever be convicted. However, we hear many cases all over the muslim world, so it must be that there are some other ways that are allowed to prove these crimes.

Mods, if this thread would be better located in a different forum, could you please move it there?

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Brother, see which mod/admin is online now, go on their profile and ask them if they could move it. I've also asked them before. Also, go on this link: and see post 77, the rules for proving adultry are explained there.

Edited by Hawraa29

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Thank you very much for directing me to that post. I will repost the rules here.

Here, we shall describe the legal rulings, according to jurisprudence and traditions, for the information of our respected readers.

1) In order to establish the crime of adultery, four just male witnesses are required or Three just male and two just female witnesses or two just male and four just female witnesses. If two just male witnesses and four just female witnesses state that they have witnessed the act, and if the sinner or the fornicator does not have a legal wife, or the fornicator woman does not have a legal husband, than they are not stoned to death. They are only given a hundred lashes each.

2) All the witnesses must testify that the crime had occurred at one and the same place.

3) All the witnesses must testify that the crime had occurred at the same time.

4) All the witnesses must testify in the same sitting.

5) If four just people quote the testimony of four just witnesses it is not sufficient.

6) If four just witnesses testify that a certain woman has committed fornication, their testimony shall not be accepted if they are not familiar with this woman since they do not know her and it could be that she is the legal wife of that man.

7) If Three of the four witnesses testify and the fourth one refrains from testifying, or if his testimony differs from the previous Three witnesses, the Three witnesses who have testified shall be punished for ‘qazaf’ (defaming a chaste man or woman of adultery).

8) If the fornicator confesses his crime thrice, but refrains from the fourth confession, he cannot be punished. For a penalty to be lawful, it is necessary to confess four times.

9) He must make four confessions in four different sittings. He cannot be penalised if he makes four confessions in one sitting.

10) It is not permitted for the Judge to goad the accused to confess. He must also not be prompted to complete sentences (that is, words must not be put into his mouth). The Judge must try to maintain purity, chastity and dignity among the common people and must try his utmost that the crime of adultery is not proved. The Judge must try to give such suggestions to the accused that he may be able to save himself from the penalty by falling into doubts and uncertainties. It is also the duty of the Judge to encourage the accused to plead innocence.

11) When a married man confesses of adultery four times but later pleads innocence, the penalty of stoning will not be imposed upon him. His punishment shall be reduced.

12) A new convert to Islam who is unaware of the punishment shall not be punished.

13) If the adulterer is unmarried and he is suffering from some illness, the jurist is authorised to beat him with a broom of twigs or a branch of the date palm. He should consider these as lashes. He could also beat him with a branch or broom and consider each of its twig equivalent to one lash.

14) The lashing should be so controlled that the flesh of the body is not affected. The accused can only be punished when he has committed the crime willingly. (If someone is forced to commit fornication, penalty cannot be imposed upon them ).

15) If a man mistakes a woman to be his legal wife and has sexual intercourse with her, then he cannot not be punished.

This is thus the detailed analysis of the laws prescribed by the all Beneficent and the all Merciful Allah (S.w.T.), who knows His creatures very well.

http://www.al-islam.org/greater_sins_complete/15.htm

Given these conditions, I can't see how it is at all realistic to ever prosecute someone for adultery. You might get one or two exceptional cases where someone wants to confess of their own free will, but then you would have to wonder if they are sane. However, there is no guarantee that the Iranian laws about dealing with adultery coincide exactly with the Islamic ones. Maybe they feel like these laws are too restrictive, and they should have more leeway than this.

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Eyewitness testimony is not the only way of proving adultery. Scientific methods such as DNA samples or other incriminating evidence can certainly be compelling proof and I believe the "judge's knowledge" provision in IRI law allows these things to be considered as well. This is not a bad thing per se.

However, my understanding of the Islamic law is that the death penalty can only be administered if there are 4 male witnesses or 3 male and 2 female witnesses. That is where the death sentence against this woman becomes a little dubious. How can the judge sentence this woman to death in the absence of eyewitness testimony? Especially when two of the other judges disagreed with this view.

Also Article 105 says the judge must document this knowledge. I have yet to see the Iranian judiciary offer any justification for the guilty verdict. What compelling evidence do they have against this woman that makes the death penalty incumbent upon her?

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Eyewitness testimony is not the only way of proving adultery. Scientific methods such as DNA samples or other incriminating evidence can certainly be compelling proof and I believe the "judge's knowledge" provision in IRI law allows these things to be considered as well. This is not a bad thing per se.

However, my understanding of the Islamic law is that the death penalty can only be administered if there are 4 male witnesses or 3 male and 2 female witnesses. That is where the death sentence against this woman becomes a little dubious. How can the judge sentence this woman to death in the absence of eyewitness testimony? Especially when two of the other judges disagreed with this view.

Also Article 105 says the judge must document this knowledge. I have yet to see the Iranian judiciary offer any justification for the guilty verdict. What compelling evidence do they have against this woman that makes the death penalty incumbent upon her?

Thank you for reponding, brother.

I agree with your analysis of the case. How reliable can the evidence really be if two judges find her not guilty? I doubt it's even DNA otherwise they would probably all have come to the same decision, unless they thought she was raped(which I don't think the woman is claiming).

However, I'm not sure if I agree with you that it's ok for other evidence such as DNA to be used. As far as I know, even a pregnancy can't be used to prove someone has committed adultery, so why should DNA? The rules on proving adultery have been clear since the time of the Prophet (pbuh), and were given to him by Allah (swt). How can we now change that because some new technology has appeared? Just because we can't stand for most adulterers not to be punished? I'm sure the Prophet (pbuh) and Imam Ali (as) knew for a fact who was guilty of adultery and who wasn't, but they never used that knowledge to punish anyone, even when the 'evidence' was pretty overwhelming anyway. They always required that the proper rules be followed.

Of course, if someone can give some authentic hadith that shows that it is permissible to impose a lesser punishment than death based on some other evidence than what I have cited, then I will have to change my views. Even something written by a scholar on the issue would be good. Everything I have read so far has pretty much been in line with what I posted earlier in the thread.

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15) If a man mistakes a woman to be his legal wife and has sexual intercourse with her, then he cannot not be punished.

Observation 1 – I don’t understand how 15) can be possible unless the man is on drugs or is drunk.

Observation 2 – What happens if a woman mistakes a man to be her legal husband and has sexual intercourse with him? Is she also not punished?

Kind Regards,

Farside 21.gif

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^

Others have pointed this out before and it's worth mentioning again that the strict rules for proving adultery in Islam makes it next to impossible to convict someone in court. How many people would fornicate knowing that four people could easily walk in on them? Obviously somebody would have be very depraved to commit such an act. The fact that the burden of proof is set so high suggests that Islam wasn't keen on carrying out this punishment. Perhaps, the penalty is intended for the fringe few who engage in perverse behavior?

You're right that pregnancy can't be used as proof for adultery. From the viewpoint of the Islamic shariah, such a person couldn't legally be convicted of adultery and thus would avoid the death penalty. But fiqh aside, as anyone who has ever watched CSI knows there are many other ways of proving a crime apart from eyewitness testimony. It would be naive to discount logical deduction and scientific methods that can provide compelling evidence. I don't see a problem if a judge uses DNA for example to determine someone's guilt and gives them a punishment other than the death penalty for their crime in the absence of eyewitnesses.

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^

Others have pointed this out before and it's worth mentioning again that the strict rules for proving adultery in Islam makes it next to impossible to convict someone in court. How many people would fornicate knowing that four people could easily walk in on them? Obviously somebody would have be very depraved to commit such an act. The fact that the burden of proof is set so high suggests that Islam wasn't keen on carrying out this punishment. Perhaps, the penalty is intended for the fringe few who engage in perverse behavior?

You're right that pregnancy can't be used as proof for adultery. From the viewpoint of the Islamic shariah, such a person couldn't legally be convicted of adultery and thus would avoid the death penalty. But fiqh aside, as anyone who has ever watched CSI knows there are many other ways of proving a crime apart from eyewitness testimony. It would be naive to discount logical deduction and scientific methods that can provide compelling evidence. I don't see a problem if a judge uses DNA for example to determine someone's guilt and gives them a punishment other than the death penalty for their crime in the absence of eyewitnesses.

I think the answer to your second paragraph lies in the first: Islam simply isn't keen to carry out such punishment. My view is such an extreme punishment is there in order to provide a deterrent, and to make people realise the seriousness of the crime. I don't think it was ever meant to be a realistic way of killing off society's adulterers. If that is the case, then should we really use a method of proof that would dramatically increase the number of people being punished? How do we know that this is what Allah (swt) intended? And in my view the fact that pregnancy can't be used as proof, even though it can be at least as reliable as DNA evidence, shows that reliability is irrelevant.

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I found this reply from the office of Sheikh Yousef Sanei to a question asked by macisaac posted on http://macisaac.livejournal.com/, and it seems relevant to the question I asked here.

Is is permissible for the religious judge to use evidence other than the traditional witnesses? For example, in the case of rape, can it only be proven by the shahadat of witnesses, or can other modern evidences such as DNA evidence be used as well if the judge obtains certainty (yaqin) by using them? Can a women be punished for zina if she is not able to prove that she has been raped?

Reply (not copying in the Farsi, just the translation):

In The Name of Allah (SWT)

Thanks for your e-mail. Regarding your question:

In civil and social law which is part of the rights of people, personal knowledge of the Islamic judge obtained through circumstances and presumptions which commonly bring about such knowledge, is taken as a reliable proof; hence, the Islamic judge can use such circumstantial evidence in the case of rape (zina bil unf) which is an example of violating the rights of people. However, in the case of the crimes deserving prescribed punishments (Hudud) where peoples’ reputation and honor is at stake, such as in adultery and sodomy, the only way to obtain certainty is either four times confessing by the accused him/herself before the Islamic judge, or testifying by four just witnesses, both of which should be done under specified conditions, otherwise adultery, for instance, is not proved and the prescribed punishment will not be applicable.

This seems to be completely against the use of any kind of 'judge's knowledge' in adultery or sodomy cases. I wonder if there are any scholars that do think other evidence is admissible in these cases, and what their reasoning is. If not, on what grounds do Iranian courts use this kind of evidence?

Edited by Haider Husayn

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(salam)

there is no where in the holy Quran where adultery is to be punished with death/stoning.if the punishment exists in the hadith,then that is contrary to what the Quran states.the Quran calls for flogging and 4 witnesses.

i believe if flogging alone is upheld,many would not commit adultery because of the shame it would bring as they continue to live.also,it is not the job of the islamic government to simply be hanging and stoning its citizens.the islamic government has the right to rehabilitate its citizens.take for example the little boys who were hanged for homosexuality.those boys are adolescents.they could have being held in confinement and taught and educated.rehabilitate them and save their lives from death and from the act.what about women who are forced into prostitution by poverty and not because they like fornicating.do you apply the same law?

i have heard that there were abuses committed in iranian prisons against some opposition prisoners.some were sodomized.i dont know how true that allegation is and i stand to be corrected.but assuming it is true,have we seen those prison guards stoned or hanged to death for sodomy?

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Ok, but even if we are only talking about flogging, the issue is whether or not it should permissible to accept other evidence than 4 righteous male witnesses or repeated confessions? For example, DNA testng, or video footage. My view is it is not, and I have yet to see the Islamic justification for allowing this evidence, but it seems that this is what they are doing in Iran. Perhaps they are even accepting weaker evidence than that, I don't know.

The issue of proving rape, such as in the example of the prisons, looks to be a more complicated affair, and I'm not even sure what the ahadith say about this. It seems somehow unfair to request 4 witnesses or a confession, and I could see the argument to allow other types of evidence in this case. However, I'm not sure whether or not the death penalty should apply if a conviction is secured on the basis of this alternative evidence.

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Ok, but even if we are only talking about flogging, the issue is whether or not it should permissible to accept other evidence than 4 righteous male witnesses or repeated confessions? For example, DNA testng, or video footage. My view is it is not, and I have yet to see the Islamic justification for allowing this evidence, but it seems that this is what they are doing in Iran. Perhaps they are even accepting weaker evidence than that, I don't know.

i believe asking if advanced methods available in our present age can be used to determine if someone is guilty of adultery is as good as asking if shampoo or soap can be used while doing ghusl janaba because those did not exist in the days of the Prophet (pbuh).according to a wahhabi mufti (cant remember his name),doing ghusl with soap on your body is not allowed.you must first use only water.but according to Sayyed Sistani,you can apply whatever soap and then go ahead to do your regular ghusl process.so therefore,we believe islam is progressive and the true islam is represented by shia islam.

i think (and i am not a scholar nor qualify to pass fatwa) if advance methods which never existed before can be used to make decision more certain in our present age,i dont think that contradicts the Quran.using an advance method does not rule out the fact that if 4 witnesses exist they cannot also give testimony.

The issue of proving rape, such as in the example of the prisons, looks to be a more complicated affair, and I'm not even sure what the ahadith say about this. It seems somehow unfair to request 4 witnesses or a confession, and I could see the argument to allow other types of evidence in this case. However, I'm not sure whether or not the death penalty should apply if a conviction is secured on the basis of this alternative evidence.

well in the case of the prison,when a prison guard rapes a prisoner,there are other guards who can testify.also if the prisoners themselves in different cells who are apart from each other and have not had contact to conspire make a report against rape,then that would do to at least put the guard under check.

it is very difficult for 4 witnesses to be available to give accounts of illicit sex.but islamically speaking,a woman is not supposed to be alone with a foreign man in an enclosure.that in itself can draw justified suspicion upon which a case can be built upon.

as for me,i do believe with conviction and sincerely with no aim to condemn anyone that no matter who or how a man or woman is caught committing zina or illicit sex,the death penalty should not be applied.the Quran does not tell us that.that is an old testament jewish law.it is more of tradition i believe.

all ive said on this particular issue are drawn from my own personal thoughts and belief.

Edited by mehdi soldier

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i believe asking if advanced methods available in our present age can be used to determine if someone is guilty of adultery is as good as asking if shampoo or soap can be used while doing ghusl janaba because those did not exist in the days of the Prophet (pbuh).according to a wahhabi mufti (cant remember his name),doing ghusl with soap on your body is not allowed.you must first use only water.but according to Sayyed Sistani,you can apply whatever soap and then go ahead to do your regular ghusl process.so therefore,we believe islam is progressive and the true islam is represented by shia islam.

i think (and i am not a scholar nor qualify to pass fatwa) if advance methods which never existed before can be used to make decision more certain in our present age,i dont think that contradicts the Quran.using an advance method does not rule out the fact that if 4 witnesses exist they cannot also give testimony.

There was a thread on this not so long ago that had a discussion of this, Personally, I am completely against using modern technologies, as I believe that Allah (swt) made these crimes almost impossible to prove for a reason.

well in the case of the prison,when a prison guard rapes a prisoner,there are other guards who can testify.also if the prisoners themselves in different cells who are apart from each other and have not had contact to conspire make a report against rape,then that would do to at least put the guard under check.

it is very difficult for 4 witnesses to be available to give accounts of illicit sex.but islamically speaking,a woman is not supposed to be alone with a foreign man in an enclosure.that in itself can draw justified suspicion upon which a case can be built upon.

The case of the prison guard, and rape cases more generally, is difficult, and requires a seperate discussion.

as for me,i do believe with conviction and sincerely with no aim to condemn anyone that no matter who or how a man or woman is caught committing zina or illicit sex,the death penalty should not be applied.the Quran does not tell us that.that is an old testament jewish law.it is more of tradition i believe.

all ive said on this particular issue are drawn from my own personal thoughts and belief.

The problem is both Sunnis and Shias have ahadith on stoning in their books, and I'm assuming that they must believe them to be authentic. Here are some examples from Shia sources: http://www.*******.org/hadiths/hudud/fornication/divisions-of-hudud-of-fornication. Also, just because this punishment was present in Jewish law, it doesn't mean it's false. Jewish law was originally from Allah after all.

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Allah made it difficult to prove and that can be for more than one reason.it could also be to make sure that no one is unjustly accused.

as for the ahadith,there was a book i saw and it was a sunni book that denies capital punishment for sex.i think the author claims the hadiths are not acceptable.i think for the shia hadith,each single one has to be examined.and if examined and found to be unreliable then more questions would be raised.we must leave that for those who know how to classify hadith.as for the Quran,it only gives one punishment,flogging,and does not specify whether it is a little or greater hadd or whether its only a punishment for unmarried people or that is just opinion of scholars.Allahu alam!

whatever the case,may Allah guide us away from every sin and make us chaste and pure and guide us and have mercy on us and forgive our sins.ameen!

no type of sin,regardless of how big or small the punishment is,is a good thing.we should care more about the fact that we should try our best not to sin than to be intimidated by punishment.we should be more sincerely devouted and i pray for that for us all.

Edited by mehdi soldier

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Salam alikum,

the issue is whether or not it should permissible to accept other evidence than 4 righteous male witnesses or repeated confessions? For example, DNA testng, or video footage. My view is it is not, and I have yet to see the Islamic justification for allowing this evidence, but it seems that this is what they are doing in Iran. Perhaps they are even accepting weaker evidence than that, I don't know.

There are two types of Islamic punishments that can be applicable on someone who commits a crime:

1) Hadd

2) Tadheer

A "hadd" is that punishment which is fixed and pre-established in Islam. It is specifically mentioned in Quran and hadith and it cannot be altered or reduced or increased by the judge himself. If someone meets all the criteria for the hadd, then he would be punished in exactly the same manner as Islam has declared. An example of hadd is when 4 reliable witnesses testify they have seen a case of adultery (and other conditions are met).

Now if someone who has committed a crime does not meet all the criteria for "Hadd" (e.g., 4 witnesses are not present), but there is a lot of other evidence that suggests that the crime indeed took place (DNA, video fottage etc), then the judge can use this evidence/knowledge to declare some degree of punishment for the culprit. The nature, intensity, type, duration etc. of this punishment can be variable and it is upto the judge to decide this (taking guidance from Quran, hadith and Ahle bait(as). This type of punishment is called Tadheer. A tadheer can be as little as a simple warning or as big as a death sentence depending upon how much knowledge (evidence) the judge was able to obtain.

I believe that an example of tadheer is the incident when a boy was caught masturbating. He was brought to Imam Ali(as). The imam struck his hand with a stick until it turned red. Now, this example does not mean every person caught masturbating should be beaten like this. It was what Imam Ali(as) judged best for that particular individual.

Moreover, it is said that when the 12th Imam as.gif will re-appear, he will not need witnesses to prove a crime and he will give punishments based on his own divine knowledge about who is really guilty and who is not. This is another example of the Judge's knowledge (although specific for Imam-e-zamana as).

I'm not a scholar but this is what I have read from different sources.

Edited by Aale Mohammad

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Salam alikum,

(wasalam)

Thank you for you input brother.

There are two types of Islamic punishments that can be applicable on someone who commits a crime:

1) Hadd

2) Tadheer

I think you mean 'ta'zeer' (ÊÚÒíÑ).

A "hadd" is that punishment which is fixed and pre-established in Islam. It is specifically mentioned in Quran and hadith and it cannot be altered or reduced or increased by the judge himself. If someone meets all the criteria for the hadd, then he would be punished in exactly the same manner as Islam has declared. An example of hadd is when 4 reliable witnesses testify they have seen a case of adultery (and other conditions are met).

Now if someone who has committed a crime does not meet all the criteria for "Hadd" (e.g., 4 witnesses are not present), but there is a lot of other evidence that suggests that the crime indeed took place (DNA, video fottage etc), then the judge can use this evidence/knowledge to declare some degree of punishment for the culprit. The nature, intensity, type, duration etc. of this punishment can be variable and it is upto the judge to decide this (taking guidance from Quran, hadith and Ahle bait(as). This type of punishment is called Tadheer. A tadheer can be as little as a simple warning or as big as a death sentence depending upon how much knowledge (evidence) the judge was able to obtain.

Yes, I'm familiar with the concept. To be honest though, I'm not that comfortable with ta'zeer punishments, that can go as far as death, being applied when the burden of proof for the hadd punishment isn't met. For example, if instead of having 4 witnesses to an act of adultery, there is only one, but the judge thinks this is sufficient and imposes death on the adulterer. This just doesn't sit well with me, since the Qur'an is very specific that no less than 4 witnesses are needed, and if there are less than that the accusers should be lashed.

I admit though that I don't know much about how this works, but something about it makes me feel uncomfortable, and I would be interested in seeing what the Imams (as) had to say about it. My current (uneducated) position is absolutely against using any other evidence for judging crimes that already have set burdens of proof and set punishments.

I believe that an example of tadheer is the incident when a boy was caught masturbating. He was brought to Imam Ali(as). The imam struck his hand with a stick until it turned red. Now, this example does not mean every person caught masturbating should be beaten like this. It was what Imam Ali(as) judged best for that particular individual.

If it was the example of an infallible Imam to carry out this punishment, then why shouldn't his example by copied?

Moreover, it is said that when the 12th Imam as.gif will re-appear, he will not need witnesses to prove a crime and he will give punishments based on his own divine knowledge about who is really guilty and who is not.

I'm curious about this. Do you have a source? The Prophet (pbuh) and Imam Ali (as), to the best of my knowledge, did not use their knowledge of the unseen to judge criminal cases, so why would Imam Mahdi (as)?

This is another example of the Judge's knowledge (although specific for Imam-e-zamana as).

I don't think we can compare the divinely inspired knowledge of an Imam to fallible knowledge of some judge.

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