M6:1508 — یا به زخم دره او را ده جزا / آنچنان که رای تو بیند سزا

Translation: Or with the wound of the lash, grant him retribution, / As your judgment deems appropriate and deserved. Meaning: This verse refers to the judge's discretionary power in administering taʿzīr, a punishment whose measure is left to the judge's own discernment and judgment.

This verse emerges from a narrative where an unfortunate wretch is brought before a judge to receive his due. Here, Mowlana explicitly uses the Arabic word darrah, which means 'lash' or 'whip.' Undeniably, it alludes to the famous whip of the second Caliph, Umar, which he carried to maintain order and administer punishment. This verse, and those immediately following, introduce a significant jurisprudential point: the distinction between ḥadd and taʿzīr in Islamic law.

As I have often explained, ḥadd refers to punishments whose measure and nature are precisely stipulated in religious law, such as the cutting of a thief's hand or the lashing of an adulterer. Taʿzīr, however, denotes punishments whose measure is not fixed and is left to the judge's discretion and judgment, provided it remains below the level of a ḥadd. Mowlana states a clear legal ruling in these verses: if an accused person dies as a result of a taʿzīr punishment, such as a whipping, their blood is considered hadar (forfeit), and the judge is not liable for compensation (tāvān). Mowlana's line, "Kan ke az zajr-e to mīrad dar damār / Bar to tāvān nīst, ān bāshad jabbār"—meaning, 'Should one die from your admonishment in disgrace / There is no liability on you, their blood is forfeit'—uses jabbār here to signify the worthlessness or forfeiture of the blood. This legal precept is significant because it suggests that the judge, in administering taʿzīr, is considered a deputy of divine truth and a shadow of divine justice, and their action is immune from error, provided their discipline is enacted "for the sake of the oppressed / Not for coin, or wrath, or gain, or expense"; that is, their intent must be justice, not personal motives.

This insight is crucial for understanding many classical texts, including Hafez. I recall the textual dispute over Hafez's verse, whether it reads "penhān khorīd bāde ke takfīr mīkonand" (drink wine in secret lest they declare you an infidel) or "taʿzīr mīkonand" (lest they administer taʿzīr). Jurists have offered various opinions. Some, like the late Dr. Jafar Shahidi, argued that Hafez knew consuming wine carried a ḥadd punishment, not taʿzīr; thus, takfīr was more accurate. Others held the opposite view. This debate illustrates how deeply legal and jurisprudential subtleties permeated even poetry. Mowlana's verse here clearly demonstrates his own profound awareness of these distinctions.

However, a bitter point must also be made here. In our time, we have witnessed how some have justified harsh and even torturous punishments under the guise of taʿzīr. Taʿzīr, which was meant as a tool for a judge to administer justice with greater latitude, became a pretext for justifying oppression and torture. This is a phenomenon I call 'euphemism' or 'bestowing a religious name upon ugly deeds,' much like calling a trip to the restroom 'renewing one's ablutions.' While Mowlana speaks here of the judge's power within the framework of religious law, he warns that this power must be 'for the sake of the oppressed,' not an instrument for tyranny or the justification of cruelty.

Key takeaways

• The darrah (lash) symbolizes a tool of punishment, with historical allusions to its use in dispensing justice.
• The verse emphasizes the judge's discretionary power in administering taʿzīr, punishments whose measure is not fixed by religious law.
• Mowlana presents the jurisprudential ruling that an accused's blood is hadar (forfeit) if they die from legitimate taʿzīr, underscoring the judge's sanctioned authority.
• A judge in this capacity acts as a deputy and shadow of divine justice, provided their motive is to serve the oppressed and uphold justice, not personal gain.
• The modern abuse of taʿzīr to justify violence and torture is a 'euphemism'—a misnomer for reprehensible acts—which directly contradicts Mowlana's spirit of justice.