The judge's discretion in determining the discretionary punishment (a comparative study between Islamic law and Libyan law)

Abstract

This study explores the discretionary power of judges in determining ta‘zīr punishments, through a comparative analysis between Islamic Sharia and Libyan law. The topic holds particular significance as it lies at the core of judicial practice in cases that do not involve fixed penalties (ḥudūd) or retribution (qiṣāṣ). The research aims to clarify the jurisprudential foundation and legal constraints governing this authority in Islamic thought, analyze its codification under Libyan legislation, and highlight points of convergence and divergence between the two systems. The findings reveal that Islamic jurisprudence grants judges broad discretionary authority, bounded by the overarching objectives of Sharia, while Libyan law acknowledges this power but confines it within precise legal provisions. Notably, Sharia stands out for its flexibility and diversity of punishments, whereas statutory law tends to be more restrictive and codified. Both frameworks, however, emphasize the importance of considering the offender’s personality, the severity of the act, and the principle of proportionality. The study recommends holding specialized training sessions for judges on ta‘zīr sentencing, incorporating Sharia-based policy principles into law curricula, and encouraging further comparative research in this field