Criminalization controls in Islamic criminal jurisprudence

Abstract

Abstract: The rulings in Islamic criminal jurisprudence are divided into two parts: The first section is fixed rulings stipulated in the Qur’an and Sunnah, and these rulings are not subject to change, and no one has the right to amend them regardless of his authority, as is the case regarding crimes of hudud and retribution. The other part is rulings that are not stipulated in the Qur’an and Sunnah and are flexible and subject to change according to changing times, interests, and places. Given that the Shari’a is based on considering the interests of people, these rulings have been entrusted to Muslim rulers or judges who have a good knowledge of legal rulings. The interest in the judgments they decide, and they have the right to issue whatever rulings they want based on the interest they see. This is called discretionary authority, and it is the authority that the guardian or judge possesses, and which authorizes him to rebuke everyone who is begging him to violate the security of people and societies, but this power is not absolute until it is not the passions of rulers and judges enable them to harness Sharia to serve their interests, which is: Not to violate the provisions of Sharia law and its general rules, taking into consideration the public interest, Presence of the criminal text and ensuring that all people are aware of it (warning before punishment), Compatibility between criminalization, punishment and considering gradual discretionary punishment, considering the condition of the perpetrator when deciding on the punishment. And Moderation in deciding on sanctions and avoiding insulting human dignity