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Crime and Punishment in Islam (part 1 of 5): Introduction
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Description: A detailed discussion about the regulations Islam has set in regards to dealing with crime in society. Part 1: Introduction and the Islamic approach to combating crime.
By The Editorial Team of Dr. Abdurrahman al-Muala (translated by islamtoday.com)
- Published on 08 Mar 2006 - Last modified on 01 Apr 2008
Viewed: 8545 - Rating: 4.1 from 5 - Rated by: 8
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Category: Articles
> Systems in Islam
> Crime and Punishment
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_-_Introduction_001.jpg) Security and stability are basic human needs, no less
important than food and clothing. Without security and stability, a human
being is not able to properly conduct his daily life, let alone come up with
new ideas or contribute to the development of a high level of civilization.
Man has been conscious of the need for security since
the beginning of his life on Earth, and he has continuously expressed his
awareness of this need in many ways. With the formation and evolution of human
society, he has expressed this and other needs through the establishment of a
state and the formation of laws. This was accomplished in order to ensure
general security, settle disputes and conflicts that threaten society, and
oppose external threats to its security posed by other nations. The
development of these man-made laws did not come to completion except in the
last few centuries as the result of a long process of trial and error.
By contrast, the Law of Islam was sent down to Muhammad,
may the mercy and blessings of God be upon him, in its complete form as part of
His final message to humanity. Islamic Law pays the most careful attention to
this matter and provides a complete legal system. It takes into consideration
the changing circumstances of society as well as the constancy and permanence
of human nature. Consequently, it contains comprehensive principles and
general rules suitable for dealing with all the problems and circumstances that
life may bring in any time or place. Likewise, it has set down immutable
punishments for certain crimes that are not affected by changing conditions and
circumstances. In this way, Islamic Law combines between stability,
flexibility, and firmness.
From what angle does Islam approach combating crime? What
are the principles that the Islamic penal code is based upon? What are the
distinguishing features of this code? What are the measures that it employs to
combat crime? What types of punishments exist in Islam? What are the
objectives behind their being legislated? These are the questions that will be
dealt with in the following pages.
The Islamic Approach to Combating Crime
The ultimate objective of every Islamic legal injunction
is to secure the welfare of humanity in this world and the next by establishing
a righteous society. This is a society that worships God and flourishes on the
Earth, one that wields the forces of nature to build a civilization wherein
every human being can live in a climate of peace, justice and security. This
is a civilization that allows a person to fulfill his every spiritual,
intellectual, and material need and cultivate every aspect of his being. This
supreme objective is articulated by the Quran in many places. God says:
“We have sent our Messengers with clear signs and have sent
down with them the book and the criterion so that man can establish justice. And
we sent down iron of great strength and many benefits for man...” (Quran 57:25)
And He says:
“…God wants ease for you, not hardship...” (Quran 2:185)
And He says:
“God wants to make things clear for you and to guide you to
the ways of those before you and to forgive you. God is the All knowing, the
Wise. God wants to forgive you and wants those who follow their desires to
turn wholeheartedly towards (what is right). God wants to lighten your
burdens, and He has created man weak.” (Quran 4:26-28)
And He says:
“God commands justice, righteousness, and spending on ones
relatives, and prohibits licentiousness, wrongdoing, and injustice…” (Quran
16:90)
Since the Islamic legal injunctions are aimed at
achieving human welfare, they can all be referred back to universal principles
which are necessary for human welfare to be secured. These universal
principles are:
1. The preservation of life.
2. The preservation of religion.
3. The preservation of reason.
4. The preservation of lineage.
5. The preservation of property.
The Islamic penal system is aimed at preserving these
five universal necessities. To preserve life, it prescribes the law of
retribution. To preserve religion, it prescribes the punishment for apostasy.
To preserve reason, it prescribes the punishment for drinking. To preserve
lineage, it prescribes the punishment for fornication. To preserve wealth, it
prescribes the punishment for theft. To protect all of them, it prescribes the
punishment for highway robbery.
It should therefore become clear to us why the crimes
for which Islam for which the Law has prescribed fixed punishments are as
follows:
1. Transgression against life (murder or
assault).
2. Transgression against property (theft).
3. Transgression against lineage (fornication
and false accusations of adultery).
4. Transgression against reason (using
intoxicants).
5. Transgression against religion (apostasy).
6. Transgression against all of these universal
needs (highway robbery).
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Crime and Punishment in Islam (part 2 of 5): Forms of Punishment in Islam
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Description: A detailed discussion about the regulations Islam has set in regards to dealing with crime in society. Part 2: Distinguishing features of the Islamic penal system, and an introduction to the three forms of punishment which Islam has legislated for certain crimes.
By The Editorial Team of Dr. Abdurrahman al-Muala (translated by islamtoday.com)
- Published on 08 Mar 2006 - Last modified on 08 Mar 2006
Viewed: 7774 - Rating: 3.2 from 5 - Rated by: 5
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Category: Articles
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Distinguishing Features of the Islamic Penal System
In the aforementioned principles, Islamic Law and
contemporary law coincide, though Islamic Law has the distinction of being
first. However, the Islamic penal system also has unique virtues and
distinguishing features, among the most important of which are the following:
1. The inner deterrent of man’s moral conscience
is fully integrated with external supervision. This is due to the fact that
Islamic Law, when dealing with social problems such as crime, does not rely
merely on legislation and external deterrents. It focuses more on the internal
deterrent, placing the greatest emphasis on man’s moral conscience. It
endeavors to develop this conscience within a person from childhood so that he
can be brought up with the noblest moral character.
It promises success and
salvation for those who work righteousness and warns wrongdoers of an evil fate.
In this way, it stirs up emotions, making a criminal renounce his ways by
inspiring him with faith in God, hope for divine mercy, fear of divine
punishment, adherence to moral virtues, love for others, and a desire to do
good to others and refrain from causing injury and harm.
2. It has a balanced outlook with respect to the
relationship between the individual and society. This becomes clear from the
fact that while the Divine Law protects society by legislating punishments and
preventative measures against crimes, it does not marginalize the individual
for the sake of society. On the contrary, its priority is the protection of
the individual, his freedom, and his rights. It provides every safeguard to
leave no excuse for a person to have to resort to crime. It does not set out
to punish without first preparing for the individual a situation conducive to a
virtuous and happy life.
Forms of Punishment in Islam
Islamic Law, in confronting the problems of life and
setting down solutions for them, is established on two complimentary principles.
These are: the stability and permanence of its basic tenets on the one hand and
the dynamism of its subsidiary injunctions on the other.
For the unchanging aspects of life, Islamic Law brings
fixed statutes. For the dynamic aspects of life that are affected by social
development, broadening horizons, and advances in knowledge, Islamic Law comes
with general principles and universal rules capable of being applied in a
number of different ways and in a variety of circumstances.
When we apply these principles to the penal system, we
find that Islamic Law has come with clear texts prescribing fixed punishments
for those crimes that no society is free of, crimes that do not vary in their
forms because they are connected with the constant and unchanging factors of
human nature.
Islamic Law confronts other crimes by stating the
general principle that decisively indicates their prohibition, leaving the
punishment to be decided by the proper political authority in society. The
political authority can then take the particular circumstances of the criminal
into consideration and determine the most effective way to protect society from
harm. In accordance with this principle, punishments in Islamic Law are of
three types:
1. Prescribed punishments
2. Retribution
3. Discretionary
punishments
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Crime and Punishment in Islam (part 3 of 5): ‘Hudood’-Prescribed Punishments
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Description: A detailed discussion about the regulations Islam has set in regards to dealing with crime in society. Part 3: The first form of punishment – Prescribed punishments or ‘Hudood’, and the types of crimes for which it has been legislated, as well as the wisdom behind it.
By The Editorial Team of Dr. Abdurrahman al-Muala (translated by islamtoday.com)
- Published on 08 Mar 2006 - Last modified on 01 Apr 2008
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Category: Articles
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1. Prescribed Punishments
Crimes that fall under this category can be defined as
legally prohibited acts that God forcibly prevents by way of fixed,
predetermined punishments, the execution of which is considered the right of
God.
These punishments have certain peculiarities that set
them apart from others. Among these are the following:
1. These punishments can neither be increased
nor decreased.
2. These punishments cannot be waived by the
judge, the political authority, or the victim after their associated crimes
have been brought to the attention of the governing body. Before these crimes
are brought before the state, it may be possible for the victim to pardon the
criminal if the damage done was only personal.
3. These punishments are the ‘right of God’,
meaning that the legal right involved is of a general nature where the greater
welfare of society is considered.
The following crimes fall under the jurisdiction of the
fixed punishments:
1. Theft
Theft is defined as covertly taking the wealth of
another party from its secure location with the intention of taking possession
of it.
2. Highway Robbery
Highway robbery is defined as the activity of an
individual or a group of individuals who go out in strength into the public
thoroughfare with the intention of preventing passage or with the intention of
seizing the property of passers-by or otherwise inflicting upon them bodily
harm.
3. Fornication and Adultery
This is defined as any case where a man has coitus with
a woman who is unlawful to him. Any relationship between a man and a woman
that is not inclusive of coitus does not fall under this category and does not
mandate the prescribed, fixed punishment.
4. False Accusation
This is defined as accusing the chaste, innocent person
of fornication or adultery. It also includes denying the lineage of a person
from his father (which implies that his parents committed fornication of
adultery). False accusation includes any claim of fornication or adultery that
is not backed up by a proof acceptable to Islamic Law.
5. Drinking
One of the most important objectives of Islam is the
realization of human welfare and the avoidance of what is harmful. Because of
this, it “permits good things and prohibits harmful things.” Islam, thus,
protects the lives of people as well as their rational faculties, wealth, and
reputations. The prohibition of wine and the punishment for drinking it are
among the laws that clearly show Islam’s concern for these matters, because
wine is destructive of all the universal needs, having the potential to destroy
life, wealth, intellect, reputation, and religion.
God says:
“O you who believe! Verily wine, gambling, idols, and
divination are but the abominations of Satan’s handiwork, so abandon these
things that perchance you will be successful. Satan only wishes to cause
enmity and hatred between you through wine and gambling and to prevent you from
the remembrance of God and prayer. Will you not then desist?” (Quran 5:90-91)
6. Apostasy
Apostasy is defined as a Muslim making a statement or
performing an action that takes him out of the fold of Islam. The punishment
prescribed for it in the Sunnah is execution, and it came as a remedy for a
problem that existed at the time of the Prophet, may the mercy and blessings of
God be upon him. This problem was that a group of people would publicly enter
into Islam together then leave Islam together in order to cause doubt and
uncertainty in the hearts of the believers. The Quran relates this event to
us:
“A group from the People of the Scripture said: ‘Believe in
what is revealed to those who believe at the beginning of the day, then
disbelieve at the end of the day, so perhaps they might return from faith.” (Quran
3:72)
Thus, the prescribed punishment for apostasy was
instituted so that apostasy could not be used as a means of causing doubt in
Islam.
At the same time, the apostate is given time to repent,
so if he has a misconception or is in doubt about something, then his cause of
doubt can be removed and the truth clarified to him. He is encouraged to
repent for three days.
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Crime and Punishment in Islam (part 4 of 5): Retribution and Discretionary Punishments
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Description: A detailed discussion about the regulations Islam has set in regards to dealing with crime in society. Part 4: The second and third types of punishments, retribution and discretionary punishments, the types of crimes for which they have been legislated, as well as the wisdom behind them.
By The Editorial Team of Dr. Abdurrahman al-Muala (translated by islamtoday.com)
- Published on 08 Mar 2006 - Last modified on 14 Jun 2007
Viewed: 6086 - Rating: 3 from 5 - Rated by: 2
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Category: Articles
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> Crime and Punishment
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2. Retribution
This is the second type of punishment in Islamic Law. This
is where the perpetrator of the crime is punished with the same injury that he
caused to the victim. If the criminal killed the victim, then he is killed. If
he cut off or injured a limb of the victim, then his own limb will be cut off or
injured if it is possible without killing the criminal. Specialists are used
to make this determination.
Important Rules Regarding Retribution
1. Retribution is not lawful except where the
killing or injury was done deliberately. There is no retribution for
accidentally killing or injuring someone. God says:
“O you who believe, retribution is prescribed for you in the
case of murder...” (Quran 2:178)
And He says:
“…There is retribution in wounds...” (Quran 5:45)
2. In the crimes where the criminal directly
transgresses against another, Islam has given the wish of the victim or his
family an important role in deciding whether or not the punishment should be
carried out. Islam permits the victim to pardon the perpetrator, because the
punishment in these crimes is considered the right of the victim. Islam even
encourages pardon, promising a reward in the hereafter for the one who does. God
says:
“If anyone waives the right to retaliation out of charity, it
shall be an expiation for him.” (Quran 5:45)
The pardon can either be to the payment of blood money,
a fixed, monetary compensation, or can be total, where no worldly compensation
is demanded. God says:
“To forgive it is closer to piety...” (Quran 2:237)
3. The punishment must be carried out by the government.
The family of the victim cannot carry it out.
The Wisdom behind Retribution:
With regard to Islamic punishments in general, and
retribution in specific, we find that they have two complementary
characteristics. The first of these is the severity of the punishment. This
is in order to discourage the crime and limit its occurrence.
The second characteristic is the difficulty of
establishing guilt, reducing the opportunities for carrying out the punishment,
and protecting the accused. In this vein, we see the principle that
punishments are waived in the presence of doubt, and that the benefit of the
doubt is always given to the accused. Some prescribed punishments are even
waived on the grounds of repentance, as we can see in the case of highway
robbery. This is also seen in the permissibility of pardon in the case of
retribution and the fact that pardon is encouraged and preferred.
These two elements complement each other in that crime
is effectively discouraged, protecting society, and the rights of the accused
are safeguarded by the fact that speculation and accusations cannot be grounds
for punishment, and that the accused enjoys the greatest guarantee of justice
and being spared the punishment whenever possible. Most people will abstain
from committing crime, because of the severity of the punishment, and the
punishments for these crimes will rarely be carried out. In this way, the
general security of society and the rights of the individual are equally
realized.
3. Discretionary Punishments
These are punishments that are not fixed by Islamic Law,
for crimes that either infringe on the rights of God or the rights of an
individual, but do not have a fixed punishment or a set expiation.
Discretionary punishments are the broadest category of
punishments, because the crimes that have fixed punishments are few in number
and all other crimes fall under the scope of this last category.
They are the most flexible type of punishment, because
they take into consideration the needs of society and changing social
conditions. Consequently, they are flexible enough to realize the maximum
general benefit to society, effectively reform the criminal, and reduce the
harm that he causes.
Islamic Law has defined different types of discretionary
punishments starting from exhortations and reprimands to flogging, to fines,
and to imprisonment. These discretionary measures are left to the decision of
the legal authorities within the general framework of Islamic Law and the
universal purposes of Islam that balance between the right of society to be
protected from crime and the right of the individual to have his freedoms
protected.
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Crime and Punishment in Islam (part 5 of 5): The Objectives of the Islamic Penal System
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Description: A detailed discussion about the regulations Islam has set in regards to dealing with crime in society. Part 5: A discussion of what the legislation of these types of punishment seeks to bring about in a society.
By The Editorial Team of Dr. Abdurrahman al-Muala (translated by islamtoday.com)
- Published on 08 Mar 2006 - Last modified on 19 Feb 2008
Viewed: 6221 - Rating: 3.6 from 5 - Rated by: 9
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Category: Articles
> Systems in Islam
> Crime and Punishment
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The Objectives of the Islamic Penal System
The Islamic penal system has many objectives, the most
important of which are as follows:
The First Objective: Islam seeks to protect
society from the dangers of crime. It is common knowledge that if crimes are
not countered with serious punishments, then society will be in grave danger. Islam
seeks to make social stability and security widespread, making life in society
secure and peaceful. It has made this consideration a platform for action,
legislating punishments that will discourage crime. This purpose has been
articulated by the following verse that discusses retribution and its effects
on society:
“There is (preservation of) life for you in retribution, O
people of understanding, that you may become pious.” (Quran 2:179)
If the murderer, or any other criminal for that matter, knows
the extent of the negative consequences for himself that his crime will cause,
he will think a thousand times before committing it. Awareness of the
punishment will cause the criminal to abstain from committing the crime in two
ways. The criminal who has already been subject to the punishment will most
likely not return to the crime again. As for the rest of society, their
awareness of the effects of this punishment will keep them from falling into
the crime. To realize a general effect from the punishment, Islam has
established the principle of publicly announcing when it will be carried out. God
says:
“…A group of the believers should witness the punishment.”
(Quran 24:2)
The Second Objective: Islam seeks to reform the
criminal. The Quran often makes mention of repentance in association with the
crimes that it deals with, making it clear that the door to repentance is open
whenever the criminal abandons his crime and behaves properly. It has made
repentance a means of waiving a fixed punishment in some instances, like the
punishment for highway robbery. God says:
“…except for those who repent before you take hold of them. Then
know that God is the Forgiving, the Merciful.” (Quran 5:34)
God says regarding the punishment for fornication:
“It they both repent and mend their ways, then leave them
alone. Verily, God is the Accepter of repentance, the Merciful.” (Quran 4:16)
God says after mentioning the punishment for false
accusation:
“… except for those who repent afterwards and makes amends,
then verily God is the Forgiving, the Merciful.”
God says after mentioning the prescribed punishment for
theft:
“Whoever repents after his wrongdoing and makes amends, then
verily God will accept his repentance and verily God is the Forgiving, the
Merciful.” (Quran 5:39)
This objective is seen more frequently with regard to
discretionary punishments, whereby it is incumbent upon the judge to take into
consideration the circumstances of the criminal and what will insure his
betterment.
The Third Objective: The punishment is a
recompense for the crime. It is undesirable to treat a criminal lightly who
threatens the security of society with danger. The criminal should receive his
just recompense as long as he is pleased with taking the path of evil instead
of the path of righteousness. It is the right of society to be secure in its
safety and the safety of its individual members. The Quran has asserted this
objective when mentioning a number of punishments. God says:
“The thieves, male and female, cut off their hands as a recompense
for what they have earned...” (Quran 5:38)
“The recompense for those who wage violent transgression
against God and His Messenger and who go forth spreading corruption in the
Earth is that they should be killed or crucified or that their hands and feet
should be cut off on alternate sides or that they should be sent into exile…”
(Quran 5:33)
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