M6:1510 — در حد و تعزیر قاضی هر که مرد / نیست بر قاضی ضمان کو نیست خرد

Translation: If anyone should die during the judge’s execution of a hadd (fixed punishment) or taʿzīr (discretionary punishment), the judge is not liable for him, for he is not petty (kherd). Meaning: This verse states a jurisprudential principle: should an offender die while a judge is carrying out a religiously prescribed or discretionary punishment, the judge bears no responsibility for the death, as the office of judgeship is not insignificant, and the judge, in their role, is not a minor figure.

We delve into a jurisprudential verse in the Masnavi, where Mowlana touches upon a subtlety of religious law. The verse states: 'If anyone should die during the judge’s execution of a hadd or taʿzīr, the judge is not liable for him, for he is not petty.' In jurisprudential terminology, 'hadd' refers to punishments whose type and measure are precisely stipulated in religious law. For instance, the Holy Quran prescribes specific 'hadd' for theft (cutting off a thief's hand) or adultery (one hundred lashes). 'Taʿzīr,' however, refers to punishments whose measure is left to the judge's discretion and is typically less severe than a hadd. For example, for insult or false accusation (qadhf), a judge may impose a taʿzīrī punishment.

Mowlana, in this verse, presents an important legal principle: if someone dies during the execution of a judicial hadd or taʿzīr, for instance, under the lash, the judge who issued the verdict is not responsible for their blood. That is, no blood money (diyah) is incumbent upon the judge, and their blood is considered 'heḍr' (without recompense). The reason for this, as Mowlana beautifully articulates, is that the judge 'is not petty' (ko nist kherd). Judgeship is not a trivial or insignificant matter. In the position of judgment, a judge is the deputy of God (nā'ib-i ḥaqq) and the shadow of divine justice (sāyeh-yi ʿadl-i ḥaqq). They do not issue verdicts out of personal anger, caprice, or for financial gain; rather, they employ discipline and punishment to uphold the rights of the oppressed and implement divine justice.

It is crucial that a judge must be like a mirror or a scale: lifeless, impartial, and utterly unbiased. They should neither distort an image out of self-interest nor alter a weight out of personal desire. The jurisprudential ruling 'La yaqḍi al-qāḍī wa huwa ghaḍbān' (A judge should not judge when angry) precisely conveys this meaning. A judge must not pass judgment while angry or agitated. They must judge in complete tranquility, based solely on evidence. This legal severity, because it stems from a position of truth and justice, is free from any taint of selfish motives, and thus, if an error occurs in its execution, personal responsibility does not fall upon the judge. Mowlana even links this point to the principle of 'diyah on the ʿāqileh,' where, in the case of an unintentional error, the payment of blood money falls to the paternal kin (ʿāqileh), not the individual. These principles illustrate the elevated and sensitive position of judgeship within Mowlana's intellectual framework and Islamic jurisprudence.

Here, it is apt to mention the famous textual variant in a verse by Hafez. Where Hafez says: 'Drink wine in secret, lest they accuse you of heresy (takfir)' or 'drink wine in secret, lest they impose taʿzīr.' The late Dr. Ja'far Shahidi believed that Hafez was aware of jurisprudential rulings and knew that the punishment for wine-drinking was a 'hadd,' not a 'taʿzīr,' and therefore could not have said 'they impose taʿzīr.' However, others rejected this argument, stating that Hafez might have spoken from another perspective, for example, criticizing the excesses of judges or baseless accusations of heresy. Mowlana, in this verse, clearly distinguishes between hadd and taʿzīr and brings both under a general ruling (the judge's non-liability). This demonstrates his precision in jurisprudential matters. And, of course, I must point out that the use of the word 'taʿzīr' to justify torture in today's political systems is an example of 'euphemism'; giving a sacred name to an ugly act, precisely like 'renewing ablutions' for going to the toilet.

Key takeaways

• Hadd and Taʿzīr are two forms of Islamic punishment; the former is fixed by scripture, the latter is discretionary.
• A judge, in the execution of divine justice, acts as a deputy of God, and their office is not considered petty or insignificant.
• If an offender dies during the execution of a judicial punishment, the judge is not liable, as their intention is to seek justice, not personal gain.
• A judge must dispense justice impartially, like a mirror or a scale, free from anger or personal desires.
• Mowlana, through this verse, emphasizes the subtleties of Islamic jurisprudence and avoids the imprecise use of legal terms in literature (unlike, for instance, the debate surrounding Hafez).
• The use of 'taʿzīr' to justify torture is an example of 'euphemism,' applying a sacred term to an objectionable act.