Is discretionary punishment (Ta'zir) obligatory when prescribed?
General Chapter
Al-Mughni
Book of Beverages (Intoxicants)
Primary text
Discretionary punishment (Ta'zir) is obligatory if the Imam deems it necessary for a matter where Ta'zir is legislated. This view is held by Malik and Abu Hanifa. The obligation stems from the fact that any Ta'zir explicitly mentioned, such as for having intercourse with one's wife's slave-girl or a jointly owned slave-girl, must be carried out according to the command. Furthermore, for cases not explicitly mentioned, if the Imam perceives a public benefit or knows that the offender will not abstain except through it, it becomes obligatory because it is a prescribed restraint for the sake of Allah, thus necessitating it, similar to a fixed legal punishment (Had).
Supporting text
Al-Shafi'i holds that Ta'zir is not obligatory. The evidence cited is that when a man confessed to the Prophet (peace be upon him) that he had touched a woman, stopping short of intercourse, the Prophet recited the verse {Indeed, good deeds take away bad deeds} (Quran 11:114) to him. Additionally, the Prophet instructed the Ansar, "Accept the good from your good-doers and overlook the faults of your wrongdoers." Furthermore, the Prophet did not punish a man who challenged his judgment in favor of Al-Zubayr by stating, "He is your cousin's son," nor did he punish another man who told him, "This is a division not intended for the sake of Allah."