Punishment In Islamic Law

Introduction

In every society, security and stability are basic needs no less important than other needs like food and clothing. Travis Hirschi propounded a theory of social control that emphasizes on the role of society in the control of criminal behaviour [1] . It specifies the fact that no society can afford to denounce criminal activity without duly accepting its responsibility towards the same. In other words the theory of social control elaborates on the onus that is shared by society and devised control mechanisms to ensure a safe social arena, one that is devoid of any type of delinquency. Man have been conscious of the need for security since the beginning of life and with the formation and evolution of society, we now have what is known as the establishment of the state or government and the formation of laws.

The development of these man-made laws did not come to completion except in the last few centuries after a long experience of trial and error [2] . On the other hand, the Law of Islam that was sent down to Muhammad in Allah’s (SWT) final message to mankind has paid careful attention to this matter and has come with a complete legal system. Taking into consideration the changing circumstances of society as well as the consistency and permanence of human nature, 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 punishments for certain crimes that are not affected by changing conditions and circumstances. In this way Islamic Law combines between stability, flexibility and firmness [3] .

Punishment in general

Punishment is defined as the act of punishing or the process of being punished [4] . Theories of punishment can be divided into two general philosophies, the utilitarian theory and the retributive theory. The utilitarian theory of punishment aims at punishing offenders to discourage or deter future wrongdoing. The purpose of punishment is to act as an example to the rest of society and put others on notice that criminal behaviour will not be tolerated and will be punished. The retributive theory on the other hand seeks to punish offenders because they deserve to be punished.

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Punishments under Islamic Law

As with all penal systems, the Islamic law system prescribes punishments when someone is found guilty of a wrongdoing. The philosophy of punishments in Islam indicates that Islam provides punishment only as a last resort and the purpose behind it is reform brought about through a blending of human values and justice tempered with mercy. Punishments in Islam reflects its values where it puts the interest of the society before the interest of an individual [5] . The punishment can be severe depending on the crime but have to abide with strict rules and have prominent features [6] . Some of the features of punishment are as follows [7] :-

Punishments are meant to be a last resort;

Punishments are made to be examples to the public;

Punishment are to reform an offender;

Punishments are a form of retribution for the victim.

The punishment system in Islam is aimed towards the three dimension of any crime being the criminal, society and the victim. To criminals punishment is kaffara (purification) and reforming for the re-acceptance into society. To society on the other hand, punishment is a preventive method to save society from crimes and finally to victims, punishment is a means of retribution. Punishments in Islamic Law were set down to protect and secure the ultimate five elements of people’s interests: al-dharuriyat (necessities). These are deen (belief), an-Nafis (life), al-‘aqil (intellect), al-mal (wealth) and an-nasil (family and lineage).

The types of punishment

There are four categories of punishment that criminals may be subjected to, namely, Hadd (literally meaning boundaries), Qisas (retribution) and Diyat (blood money), Ta’zir (chastisement) and Mukhalafat (which covers areas of the rights of the state).

Hadd

Hadd (plural hudud) literally means boundaries or prohibition [8] . It is considered to be the most severe of crimes as they go against God’s will and punishments for these crimes are fixed as they have been prescribed by Allah (SWT) in the Holy Quran [9] . The seven offences prescribed are zina (illicit sexual relations), qazaf (false accusation of zina), sariqah (theft), hirabah (highway robbery), shrub al-khamr (consumption of alcohol), riddah (apostasy), and baghy (rebellion against the government). These offences appear to have been selected to indicate that life, family institution, property, honour and social order have to be protected. Evidence for these crimes have to be provided by abiding to stringent rules thus, making conviction difficult [10] . If the crime is proven, offenders for these crimes are punished in public as a measure of deterrence [11] . However it is only carried out as a last resort after a thorough effort at reforming the person has totally failed.

For example, riddah, where a Muslim renounces his or her faith, it is treated as treason. A mandatory punishment has been set for this offense. Males face beheading, while females face imprisonment until the time where they renounce their new belief and revert to the teachings of Islam. However, every effort is made to allow the male offender to revert to Islam including receiving visits of religious officials before the punishment is inflicted. [12] 

The punishments that have been set and have to be carried out if all criteria for evidence have been satisfactorily met for the rest of the offences prescribed above are [13] :

Zina – A married individual would face death by stoning while an unmarried person would face 100 lashes.

Qazaf – 80 lashes are mandatory for a free person while slaves face 40 lashes

Sariqah – A first time offender faces amputation of one hand at the wrist, a second time offender faces amputation of the second hand while a third time offender face either amputation at the ankle or imprisonment until the individual repents.

Hirabah – If death is caused, the offender faces death by beheading. If no death occurs, the offender faces cross-limb amputation. If the offender is arrested before commission, he is imprisoned until repentance.

Shrub al-khamr – 80 lashes are mandatory for a free person while 40 lashes are mandatory for slaves or those in the Shafi’i school

Baghy – Death is imposed for those who fight and are captured. However, ta’zir punishments are for those who are arrested or surrender.

Looking at the punishments set out above, it appears as very severe and harsh but the main purpose of hudud punishments is to deter the commission of crime in the very first place. Taking the example of sariqa (theft), Allah SWT proclaims,

“As to the thief, male or female cut off his or her hands, a punishment by way of example, from God, for their crime: and God is Exalted in power” [14] .

Islam does not tolerate theft as it deprives a person of their hard earned money and belongings. Looking at the above verse, it is clear that the intention to punish the offender is to set an example for the rest of society that an act of stealing will not be condoned or accepted by God.

What hudud seeks to bring is peace and order and disciplined behaviour as people would seriously consider their actions to do an evil deed as they know the punishment that awaits them is severe. This is the wisdom of hudud. But this is not to say that under Islamic Law, at the slightest chance available, punishment will be imposed. On the contrary, punishments would only be imposed as a last resort where all the conditions and elements of the crime have been satisfied.

Qisas & Diyat

Another feature of Islamic Law is the right of retribution (Qisas). The concept of retribution is explained in the Holy Quran as follows:

“The recompense for an injury is an injury equal thereto (in degree), but if a person forgives and makes reconciliation, his reward is due from God, for (God) loveth not those who do wrong.” [15] 

In simple terms, Qisas follows the doctrine of an eye for an eye, where the punishment is similar to the crime. As Qisas is usually reserved for crimes that involve homicide or bodily harm, for a crime of homicide, the punishment would be death while a crime involving bodily harm, the punishment would be to inflict an injury comparable to the harm caused. A unique feature of the punishment of these crimes is that the victim is able to request for punishment or to forgive the offender [16] . The victim may also request for diyat (blood money), a form of compensation paid by the offender to the victim, the amount of which has to be equal to the loss incurred and not more. In a hadith narrated by Imam Nissai it mentions that every part of the body has blood money, for example the blood money for the eyes is the equivalent of 50 camels, etc [17] .

Ta’zir

Ta’zir punishments are discretionary punishments that do not fall under the jurisdiction of hudud or qisas and cannot be used as an alternative to these punishments. Ta’zir can, however, be used if a crime has been committed but has not met the standards of hudud or if the offender has been pardoned by the victim. They are the most flexible type of punishment because they take into account the needs of society and changing social conditions. It is also flexible enough to realize the maximum general benefit to society, effectively reform the criminal and reduce the harm that was caused. The punishments may range from anywhere between a warning to death.

One famous example happened in the time of ‘Umar ibn al-Khattab (ra), where he punished a scholar who gave false testimony. He ordered that the scholar should have his head shaved, his face painted black, and he paraded semi-clothed in front of people while sitting backwards on a donkey [18] . But the punishment can be just as severe as the punishments under hudud. The power to punish is given to the judge or to the legal authorities.

The purpose of ta’zir is to prevent an offender from repeating the offence or to incline a person to fulfil his or her duty. A number of factors go into choosing the appropriate punishment under ta’zir one of which is the situation of the offender where aspects such as the social status of the offender as it is believed those from the commoners require harsher punishment to reform than those in higher classes. It has to also be determined if the offender has committed similar crimes in the past, making the punishment individualized. [19] 

Mukhalafat

This covers the areas of the rights of the state. A person or group contravenes a law which the state has enacted such as exceeding the speed limit or parking in no parking areas. The punishment imposed is at the discretion of the judge or the legal authorities.

Kaffarah

If a person who has not fulfilled their duty (such as not fasting or performing prayers), the individual is required to pay kaffarah or penance. It is not meant to be a punishment rather it is a reminder of their obligations. There are three forms of kaffarah which are offering a sacrifice, feeding six orphans or the poor and performing fast for three days. [20] The kaffarah that needs to be performed depends on the violation that had occurred. [21] It is interesting to note that the ‘crime’ here is not one which is against the state or another individual but is a failure to fulfil one’s duty or obligations under Islam of which there are also ‘punishments’ prescribed.

Punishment as a last resort

Severity of punishments as a form of prevention and deterrence

The ultimate aim for a Muslim society is that its citizens do not commit crimes at all and so there should be no occasion to resort to extreme punishments like the amputation of the hand in cases of theft or flogging or being stoned to death in cases of zina. The very thought of watching someone lose a hand for committing theft is definitely unpleasant and considered harsh which is why it is not surprising that hudud punishments often make the headlines in the media due to its severity. However the severity of the punishment is to serve as a prevention and deterrence from committing these crimes in the first place. It is better to be severe to one and save a thousand than to be indulgent to all and ruin many. Allah SWT is certainly a good surgeon who does not hesitate to amputate a rotten limb to save the whole body [22] . Just imagine if you see someone walking around with only one hand because he was punished under hudud for stealing, you would keep away from such person. This indirectly causes stigmatization for the offender as society would not want to be associated with an offender. This is another motivating factor to desist from committing the crime.

Further, just because punishments under Islamic Law are seen to be harsh, it does not necessarily make them unjust. According to Abdur-Rahman.Doi [23] , incidences of cutting off the hands are rare in an Islamic society for two reasons. Firstly, statistically speaking, the simple enforcement of hudud punishment itself has a significant deterring effect on potential offenders which inadvertently reduces the crime rate in a society administered by Shariah. He cites the example of Saudi Arabia (in spite of the distorted ideology of its government) in recent times and the era of the first generation of Muslims more than fourteen hundred years ago [24] .

Secondly, the procedure in seeking conviction of an alleged offender is so elaborate and strict and involves a host of exceptions and conditions, as a result of which in most cases the offender’s punishment is reduced from the level of Hadd to Ta’zir, where the judgement is left to the discretion of the judge.

Fear of Allah (SWT) and accountability in the Hereafter

According to Muslim jurists, punishments are designed to keep the sense of justice alive in the community by a public repudiation of the acts violating the limits set by God. They are expected to build up in the society a deep feeling of abhorrence for transgression against fellow human beings and therefore against God, a transgression which according to the Quran is the root cause of all disorders and corruption in human life [25] . Hence severe punishments are imposed for purposes of dissuading most people from committing crimes. For this purpose it imbues the Muslims with the fear of Allah (SWT) and inculcates the sense of accountability in the Hereafter, as it is believed that punishment should be prevented as far as possible.

” When it is said to him, “Fear God”, he is led by arrogance to (more) crime. Enough for him is Hell;- and evil bed indeed (to lie on)!”- Surah Al-Baqarah 2: 206

” And fear the Day when ye shall be brought back to God. Then shall every soul be paid what it earned, and none shall be dealt with unjustly”- Surah Al-Baqarah 2:281

Punishment is a necessary evil

Abdur-Rahman Doi, in his encyclopaedic work Shariah: The Islamic Law makes an insightful observation that the Quran generally adopts the same word for ‘punishment’ (retribution) as for the original crime [26] . Therefore, both crime and punishment are known as Sayyiah (evil). By using the same word for both crime and punishment, it implies that punishment although justified by circumstances is truly speaking nothing but a necessary evil [27] . This being the case, at the first instance where a crime has been committed, Islam seeks to forgive and reform the offender wherever possible. However, where it is clear that it is unlikely for the offender to reform or to mend his or her ways punishment would then be imposed as a last resort.

Waiver of punishments in the presence of doubt

Any shred of evidence that is doubtful or circumstantial will prevent punishment. It is narrated in the Seerah (life) of Muhammad (saw) how he would exert himself to avert the punishment when individuals asked for punishment to be implemented upon them [28] . It is narrated that Muhammad (saw) said, “To free someone criminal mistakenly is better than to punish someone innocent mistakenly” [29] 

A’isha narrated that the Prophet (peace be upon him) said :

“Ward off punishment as much as you can. If you find any way out for a Muslim then set him free. If the Imam makes a mistake in granting forgiveness, it is better for him than that he should commit a mistake in imposing punishment.”

Hence should there be even a single iota of doubt on the evidence, hudud punishment in such circumstances should not be imposed. An example of this is in the case of adultery (zina) where the testimonies of four eye witnesses are required to prove the crime. Allah SWT says,

“If any of your women are guilty of lewdness, take the evidence of four (reliable) witnesses from amongst you against them; and if they testify, confine them to houses until death do claim them, or God ordain for them some (other) way” [30] .

If there is a little doubt, no Hudud penalty is given at all, instead they will then be subject to the punishment of qadhf (false accusation). Hence, Hudud punishments are waived in the presence of doubt, and that benefit of the doubt is always given to the accused.

The Right of Retribution

Under Islamic law, it offers the aggrieved party the right of retribution. This right of retribution belongs to the individual, and not to the society or state. This simple shift in the responsibility brings about a profound change in the whole system of implementing justice. Instead of starting an irreversible process of trial and punishment which would involve a great deal of time and costs, Islamic law leaves the ground open for settlement between individuals, without the interference by impersonal bureaucratic machinery, though under no circumstances can the individual take the law into his or her own hands [31] .

If we compare this with a country like Malaysia which has its own Criminal Laws enshrined under the Penal Code and the Criminal Procedure Code, where a person is a victim of theft or robbery for example, the action against the accused is brought by the state and not the victim. Also where all the elements of the crime are satisfied, the accused would be either imprisoned for a period which may extend to seven years, fined or in some cases to both imprisonment and fine. Under this criminal law system, the tax payer who may include the victim themselves would be burdened with ‘taking care’ of the ‘welfare’ of the accused whilst in prison. Fines paid are paid to the state and not to the victim who is actually the aggrieved party.

It was only recently that Malaysia introduced the concept of victim impact statements in courts. This is an avenue provided to the victims of crimes to voice their feelings in relation to the offence committed against them of which the victim impact statements will be considered when imposing sentencing or punishment. Hence what is certain from the Malaysian Criminal Law system is that unlike the Islamic legal system upon the establishment of guilt and where the accused is found guilty of the crime, the imposition of punishment is definite and as a matter of first choice.

The Concept of Forgiveness

The concept of forgiveness is one of the main elements under the concept of punishment under Islamic law. In Islamic Law the wishes of the victim or his family is given an important role in deciding whether or not the punishment should be carried out. The victim is allowed to pardon the perpetrator because the punishment in crimes under Qisas is considered the right of the victim and is avoidable because “whoever forgives and makes amends, his reward is due from Allah…” [32] . The ideal way is not to seek revenge at all but reconciliation and to make the offender realize the gravity of his or her offence.

The Concept of Tawbah

The concept of tawbah is also another element of interest. If an individual does commit crime, Islam allows the individual to repent (tawbah) as Islam believes in awarding its believers a second chance. Tawbah brings the meaning of return from sin. [33] The concept of tawbah can be clearly seen to be encouraged in the Holy Quran through the verse,

“But if the thief repents after his crime, and amends his conduct, God turneth to him in forgiveness: for God is Oft-forgiving, Most Merciful” [34] ; and

“Except those who repent and make amends and openly declare (the Truth): to them I turn for I am Oft-returning, Most Merciful”- Surah Al Baqarah 2:160.

One is said to have repented if there is a feeling of genuine remorse, shame and resolve to not repeat the crime. [35] Where a person has repented before being caught or arrested, the effect of this is that it can remit the hadd punishment.

Islam’s approach towards crime prevention

Islam has looked towards crime prevention more than punishing the criminal. This is akin to the English saying “Prevention is better than cure”. For this purpose Islam has prescribed preventative measures that are to be taken in order to curb crime in the society. Some of the key measures that are thought to help members of the society to resist the urge to commit crimes [36] are as follows:-

Moral Development and ‘pre-crime reform’

Self purification is one of the main goals of the Prophet’s (peace be upon him) mission [37] . In Surah Al- Baqarah 2: 112 it says,

” Nay,- whoever submits his whole self to God and is a doer of good,- he will get his reward with his Lord; on such shall be no fear, nor shall they grieve.”

The teachings of Allah aim towards performing what is good and abstaining from harm. When the individual’s heart is with the Almighty God, he does not allow for his ego to control his mind and its animal demands, so indirectly one abstains from committing crimes. It is also for this reason that Muslims are required to pray five times a day so as they are constantly reminded that there is an Almighty who created them and they should bow their head in total humbleness towards God. It is a collective mindful meditation that helps you not to forget who you are and where you belong.

In a Muslim society Khurram Murad argued that every institution is value oriented and owes a responsibility towards the moral development of every person. Reform is therefore a pre-crime responsibility and not a post-crime syndrome [38] . Islamic Law makes an effort to ensure that the inducement to commit crime is minimal. This is for instance the reason behind the complete prohibition of consuming intoxicants and intense free-mixing of unrelated members of the opposite genders. Part of pre-crime reform involves development of an environment where preventive measures are already in place. Once the crime is committed however, the best place for reform is in the family and in society where a criminal is to live after the punishment and not in a prison where every inmate is a criminal [39] .

While Shariah protects society by legislating punishments and preventative measures against crimes, it does not resort to punishment without first preparing for the individual a situation conducive to a virtuous life. It would be considered unjust from the standpoint of Shariah to allow a hazardous act, such as drinking alcohol and then punish a person for drinking while driving.

Family

Family is considered as the pillar of society. Children look up to their parents as the teachers of customs, practices and morality. Hence stable relationships between parents , spouses and children reduces the need for engaging in criminal activities. Research has shown that children from single parent homes, dysfunctional families, etc are usually involved in crime as a means to stay away from the ‘problems’ at home or for purposes of seeking attention. Therefore a strong family bond coupled with religious and moral beliefs and teachings would not create a need for people to commit crimes.

The fight against poverty

This refers to the society’s duty to help the poor (in the way of zakat) as poverty is said to be one of the reasons behind the occurrence of crime. The Holy Quran has introduced ‘zakat’ as one of the good deeds which leads to the purification and development. In Surah Al-Baqarah 2 :110, it provides,

“And be steadfast in prayer and regular in charity: and whatever good ye send forth for your souls before you, ye shall find it with God: for God sees well all that ye do.”

In a Muslim state, every individual is entitled to social security through the public treasury where funds are collected from various sources including the obligatory annual payment of zakat. Where a citizen is driven by force of circumstances since he could not earn his living for himself or his family due to lack of employment opportunities or was not taken care of by the central treasury, the society and government will be considered at fault and no hudud punishment will be imposed on the accused.

It is keeping with this principle that Umar bin-al-Khattab the second Caliph or ruler of Muslims after Prophet Muhammad (peace be upon him) did not apply the hudud punishment to those accused of theft during the period of famine in the state of Madinah [40] . Similarly, if a person is found stealing out of hunger or to fulfil his basic needs, then no punishment is meted out to him as it is deemed that the fault lies with society and government because it is their duty to see that no person is without means to support himself or his family with dignity.

“And in their wealth and possessions (was remembered) the right of the (needy), him who asked, and him who (for some reason) was prevented (from asking).” Surah Al Dhariyat (51:19)

In Malaysia for example, a mother who stole a tin of milk for purposes of feeding her child was sentenced to a day’s jail and imposed a RM500 fine in default of one month’s jail [41] . One tends to wonder looking at the sentence passed if the sentence imposed was compassionate and justified considering the circumstances that drove the mother to steal in the first place. Also if the mother had RM500, she would not need to resort to stealing in the very first place. Further being the sole breadwinner, in the event she is unable to pay the fine, then she would need to serve her one month prison sentence and risk being separated from her child. This is the implication of the stringent criminal laws in Malaysia.

Conclusion

To live in constant fear of being attacked or robbed is surely unacceptable state of affairs. The thoughts and ideas that are prevalent in the society around us affect the way people behave and in this society people are constantly motivated to increase their wealth and become prosperous. But when this is combined with the notion of freedom, people then put no limits for themselves on how to achieve these aims, and crime is a