Non-fixed Heavy Penalty Formula from Hanafi Tradition to Classical Ottoman Kanuns

This article focuses on the notion of non-fixed heavy punishment in the Hanafi penal tradition and its reflection on the classical Ottoman laws. In this context, it firstly draws attention to the relationship between the heavy punishment given by the public authority’s own opinion (siyasa) and the repetition of an offence (tekerrur) and the effort for corruption of society (sa‘y bil-fesad fil-ard). It emphasizes the fact that an understanding has evolved in the Hanafi penal tradition that habitual criminals can be severely punished by the administrative authority’s own opinion on the grounds that they have attempted to corrupt society. This understanding has the potential to include some crimes that are not repeated, but which are devastating to society. This study gives representative examples of how to use the Hanafi notion of non-fixed heavy punishment in the classical Ottoman kanuns and practice. Lawmakers generally have a reference to this notion with a siyasa term. They seem to be clearly inspired by the mentioned notion when they punish habitual criminals more severely than non-habitual ones. Lawmakers do not act independently of this notion when they sometimes punish nonhabitual criminals heavily with their own opinion.