M6:1509 — کانک از زجر تو میرد در دمار / بر تو تاوان نیست آن باشد جبار

Translation: If someone dies instantly from your chastisement, / No liability falls on you; that death is considered jabbār (unaccounted for/wasted). Meaning: This verse refers to the judge's autonomy in determining and carrying out taʿzīr (discretionary punishment). It states that should an offender perish during a judicially sanctioned punishment, the judge bears no liability, and the death is deemed jabbār—meaning wasted or unavenged.

Following the preceding verses that describe the accused being dragged before the judge, Mawlana delves into the unparalleled authority of the judiciary in rendering justice. This particular verse unequivocally states that a judge, when fulfilling his duty and executing a verdict based on his own discernment, is exempt from all liability. I am unequivocally convinced that this statement refers to the judge's discretion in imposing taʿzīr—a form of punishment whose measure is not explicitly fixed in religious law but is determined by the judge in proportion to the offense. Mawlana emphasizes here that if the accused or convicted person should die, even from the severity of the lashings or any other chastisement deemed necessary by the judge for their discipline, the judge is not held accountable, and their blood is considered hadr (wasted). The term jabbār, used in the verse, signifies precisely this: blood for which no retribution is sought, blood that is rendered null and void. It is as if this jabbār status of the blood itself validates the judge's independence and authority.

This ruling establishes a fundamental legal distinction in Islamic jurisprudence between ḥadd (fixed, divinely ordained punishments) and taʿzīr (discretionary punishments determined by the judge). Ḥadd refers to penalties whose specific measures are prescribed in the sacred law—such as the amputation of a thief's hand or one hundred lashes for adultery. Taʿzīr, however, is entirely discretionary and subject to the judge's judgment, although it must always be dūn al-ḥadd (less than the fixed punishments). Hafez's famous couplet, where he says: 'Drink wine in secret, for they accuse you of apostasy,' or, according to another reading, 'they will chastise you with taʿzīr,' itself illustrates the debates and differing interpretations on this very topic among legal and literary scholars. Yet, the crucial point for reflection is how this absolute immunity of the judge, which in its proper context can guarantee justice and discipline offenders, might be twisted into an instrument of oppression. I lament deeply that in our own era, this very term taʿzīr has been frequently invoked to justify various forms of torture and tyrannical behavior, serving as a 'euphemism' to sanctify heinous acts with a religious label. This, in itself, is a grave sin: to attach the sacred name of religion to inhuman deeds. For the judge, as Mawlana elaborates in subsequent verses, must be the 'deputy of God' and the 'shadow of God's justice,' and must issue verdicts not out of anger or personal gain, but 'for the sake of the oppressed.' Thus, this exemption from liability for the judge is justifiable only within the framework of genuine justice and pure intention, not in the context of tyranny and abuse of power.

Key takeaways

• Judges possess full discretion in prescribing and executing taʿzīr punishments, and are not liable for the death of an offender during the process.
• The term jabbār signifies 'wasted blood' or 'unavenged death,' referring to a life lost during the lawful execution of fixed or discretionary penalties.
• Unlike ḥadd punishments (whose measures are fixed by sacred law), taʿzīr punishments are discretionary and determined by the judge.
• This judicial authority, intended for justice, must be exercised impartially and for the sake of the oppressed, not for personal vendettas or gain.
• Soroush critically views the modern misuse of taʿzīr to legitimize torture and violent acts as a profound misinterpretation and distortion of religious concepts.