Continuation or Disappearance of Deterrent Punishments in the Islamic Penal Code of 2013: A Jurisprudential–Legal Critique of Deliberate Distinctions and Legislative Negligence

Abstract

The Islamic Penal Code enacted in 2013, by expanding the scope of ta’zirat (discretionary punishments), subsumed deterrent punishments (ta’zirat-e hokoomati) under the broader category of ta’zir, creating the impression that the historical distinction between Shari‘a-based ta’zirat and state-based deterrent sanctions had been eliminated. Using a descriptive–analytical method combined with jurisprudential–legal critique, the present study demonstrates that despite the legislator’s attempt at unification, the 2013 Code in practice remains committed to this dichotomy and at times neglects it. In the area of intentional distinctions by the legislator, Articles 10 and 99 (non-retroactivity and abrogation limited to governmental rules and regulations), Article 18 (explicit differentiation of the grounds of ta’zir into “commission of Shari‘a-prohibited acts” and “violation of governmental regulations”), Article 135 (emphasis on fixed Shari‘a-based ta’zir and the distinction between divine rights ḥaqq-allāh and private rights ḥaqq-al-nās), and especially the retention of Article 638 of Book Five (public commission of a prohibited act as a clear instance of Shari‘a-based ta’zir) all indicate the legislator’s awareness of and insistence on preserving foundational, temporal, and legal-effect distinctions between Shari‘a-based ta’zirat (fixed and grounded in intrinsic moral wrongfulness) and state-based deterrent punishments (variable and grounded in expediency and extrinsic wrongfulness). In the area of legislative negligence, the legislator—without attending to this distinction—has uniformly applied institutions such as repentance (tawba, Article 115), statutes of limitation for prosecution and punishment (Articles 105–107), and the prohibition of testimonial hearsay (shahāda ‘ala al-shahāda) in all ta’zir offenses (Article 189) to both Shari‘a-based and deterrent ta’zirat. Yet repentance and strict evidentiary requirements are meaningful in cases involving ḥaqq-allāh (Shari‘a-based ta’zirat), whereas they lack jurisprudential grounding in offenses involving purely private rights (ḥaqq-al-nās), such as deterrent sanctions. The conclusion is that deterrent punishments in the 2013 Code continue to maintain an independent existence, and the Code’s superficial unification of ta’zirat has ultimately failed due to the Guardian Council’s insistence on preserving the foundations of classical jurisprudence.