Jarimah ta'zir Islamic criminal law
A. Understanding ta'zir
According to the meaning of the language, derived from the word lafadz ta'zir (......) the sionimnya:
1 ............. means to prevent and reject;
2 ............. which means educating;
3 ............ which means that glorify and honor;
4 ............ which means help, strengthen, and help.
Of these four, the most relevant is the notion that the first :............( prevent and reject), and the sense that both :..........( educate). This understanding accords with what is put forward by Abdul Qadir Audah and wahbah Zuhaili. Ta'zir in mean preventing and (.....) because he refused to deny the perpetrators so as not to repeat his actions. Ta'zir in educating interpret because ta'zir to educate offenders and improve the perpetrators so that he realizes act jarimah then leave and stop it.
According to the terms, ta'zir identified by al-Mawardi as follows:
.............................................
Ta'zir is a punishment that is pendididkan of sin (sin) that his sentence has not been determined by Islamic rules. "
Ibarahim unais and colleagues provide a definition ta'zir according to Islamic rules' as follows:
From the above definition, it is clear that ta'zir is a term for punishment for jarimah-jarimah that his sentence has not been determined by Islamic rules. " Among the fuqoha, jarimah-jarimah that his sentence has not been ditentuakn by Personality 'called jarimah ta'zir. Thus, the term ta'zir nisa used for punishment and it could be to jarimah (crime).
From these definitions can be understood that jarimah ta'zir consists of immoral acts which are not subject to punishment nor kifarat Had. Thus the core of the act jarimah ta'zir is immoral deeds. The intention with which the immoral is to do something that is prohibited by and act on compulsory leave.
Punishment can ta'zir djatuhkan if it desired by the common good, however immoral deeds, but at first permissible. Actions that include this group can not be specified, because the act was not in his forbidden substances, but because of its nature. If such is the nature of the forbidden deeds, and deeds do not exist then apabla permissible actions. The nature of the reason (illat) wore a punishment for such actions are harmful or detrimental to public interest. If there is an element in an act detrimental to the public interest then the act was considered jarimah the perpetrators be punished. However, if the act was not detrimental to public interest there are elements of the act was not jarimah and offenders are not subject to punishment.
Ta'zir sentencing in the public interest is based on the actions of Allah rosullullah. Who arrested a man in the suspect stole the camel. Now we know he did not steal it, rasullulloh saw release. Analysis of Allah's Apostle tinakan is that detention is the punishment ta'zir, while punishment may only be imposed on the Suatau jarimah which already can be proved. If in the event there is no criminal element will mean Allah's Apostle wearing a sentence of detention (jail) just because of mere accusations (tuhmah). This means that rasullullah allow sentencing to seeorang in a position of suspects, although he did not perform acts that are prohibited.
From the above description, it can capture the essence of that jarimah ta'zir divided into three parts:
a. For committing immoral acts.
b. For committing acts that endanger the public kepetingan.
c. For committing a prohibited act (mukhalafah).
Meanwhile dilihata in terms of rights and the violations, jarimah ta'zir can be divided into two parts:
a. Jarimah ta'zir rights pertaining to gods.
b. Jarimah ta'zir that offend individual rights (individual).
B. The legal basis is prescribed ta'zir
The legal basis in syariatkannya ta'zir beberpa contained in the hadith the Prophet and Companions action. Hadith include:
1. Hadith narrated by Ibn Hakim Bahz
From Bahz ibn judge from his father from his grandfather, that the prophet PBUH detain a person because the suspect committed a crime. (Hadith narrated by Abu Dawood, Turmudzi, Nasa'i and Bayhaqi, and in shohihkan by judges).
2. Prophet Hadith narrated by abi burdah
From burdah abi al-Anshori ra. That he heard rasullullah Allah said: "should not be bound over ten whip except in the punishment prescribed by Allah Ta'ala (muttafaq alaih)
In general, these two hadith explains the existence of ta'zir in Islamic Shari'a.
The actions that can become a friend of a legal basis for jarimah and punishment among other actions ta'zir Sayyidina Umar ibn al-Khattab when he saw someone who menelentangkan in slaughtered goats for, then he is caring for his knife. Caliph Umar then hit him with a whip and said "first sharpening the knife."
