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
Crimes that fall under this category can be defined as legally prohibited acts that Allah forcibly prevents by way of fixed, predetermined punishments, the execution of which is considered the right of Allah.
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 Allah?, 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.
There are conditions that must be met before an act of theft mandates carrying out the prescribed, fixed punishment. They are:
i. The stolen property must be completely taken into the thief?s possession after being removed from the victim?s possession from a place where such property is generally secured.
ii. The stolen property must be movable.
iii. The stolen property must have an appraisable value. This entails the following:
a. The value of the stolen property must not be negated by being a substance whose use is prohibited by Islamic Law, such as wine and other forbidden things.
b. The stolen item must be among the things that people generally ascribe value to in their dealings with others, and it should not be among the things that people customarily overlook. If these conditions are met in the absence of any doubt that would prevent carrying out the punishment, it becomes mandatory to cut off the hand of the thief from the wrist joint. This is based on Allah?s words:
The thieves, male and female, cut off their hands.
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. The evidence for the prescribed punishment for this crime is to be found in the following words of Allah:
The recompense for those who wage violent transgression against Allah 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. This is a disgrace for them in this world, and in the Hereafter they will have a great punishment, except for those who repent before you take hold of them. Then know that Allah is the Forgiving, the Merciful.
This verse has given a clear indication of many punishments to give a number of prescriptions for various manifestations of this crime. Each manifestation of this crime is fixed with its appropriate punishment.
In the case where the criminal repents and abstains from perpetrating this crime before being taken into custody, then the fixed punishment of highway robbery no longer applies to him, as clearly indicated by the previously mentioned verse. At the same time, he is still liable for any infringements that he may have made against the lives or property of others.
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 does not contain coitus does not fall under this category and does not mandate the prescribed, fixed punishment.
The prescribed punishment is different depending on the marital status of the perpetrator. A single person who has never been previously married receives one hundred lashes as stated by Allah:
The fornicatress and the fornicator, give each of them one hundred lashes.
If the person is married or has previously been married, then the punishment is stoning until death. This punishment has been established by a number of had?th of the Prophet Muhammad (peace be upon him).
The following conditions must be met before either of these two punishments can be carried out:
1. Four trustworthy witnesses must give testimony that they have witnessed the act take place with absolute certainty. They must be in complete agreement about all the details of the act, and about its place, time, and circumstances. If their stories do not coincide, their testimony will be considered false. In this case, instead of the punishment for fornication being carried out on the accused, the prescribed punishment for bearing false witness will be carried out against the witnesses. Allah says:
- Why did they not produce four witnesses? Since they did not produce witnesses, then with Allah they are the liars.
- Those who accuse chaste women then do not come with four witnesses, flog them eighty lashes and never accept their testimony. They are the sinful ones.
It is obvious that the one who commits fornication in the plain sight of four witnesses whereby they can see every detail of his crime is a person who is flagrant in his behavior, who has little regard for religion or for social values, and if he is married, has little regard for his relationship with his wife.
This person fully deserves a severe punishment. At the same time, it must be known that there is no documented case in Muslim history ? to the extent of our knowledge ? where the prescribed punishment for fornication was carried out on the testimony of witnesses. In most cases, this punishment was carried out at the wish of the perpetrator in order that he may purify himself of the sin and as a means of repentance.
2. There must be no cause for doubt that can make the punishment fall away. If any doubt is present, or any way out is found for the accused, the punishment is not to be carried out, because Allah?s Messenger (peace be upon him) said: ?Do not carry out the prescribed punishments when there is doubt.?
Some things should be made clear at this point. The first is that if a person becomes weak and falls into this sin, it is preferable for him to conceal it from others and not speak about it or admit to it. Instead, he should repent, seek Allah?s forgiveness, and try to make up for it by doing righteous deeds. He should not despair of Allah?s mercy.
This is because Allah?s Messenger has said: ?Whoever comes with one of these filthy acts should conceal it as Allah has concealed it.?
Allah says:
- Those who, if they commit an indecency or wrong themselves, remember Allah and seek His forgiveness ? and whoever forgives save Allah? ? and do not persist in committing it, their reward is forgiveness from their Lord and gardens beneath which rivers flow.
- O my servants who have transgressed against themselves, do not despair of Allah?s mercy. Verily, Allah forgives all sins.
It should also be observed that, likewise, if someone is to see another Muslim commit this act, then he should conceal it from the public. Allah?s Messenger has said: ?Whoever conceals the fault of a Muslim, Allah will conceal his fault.?
It must also be noted that Islam has made the home completely inviolable. It is not permissible to enter someone else?s home except with the permission of its occupants. Spying is likewise prohibited. Allah says:
O you who believe, do not enter homes other than your own until you have asked permission and greeted their inhabitants. This is better for you, in order that you may remember.
Also, if a person confesses to this sin of his own accord, it is necessary to determine if he is of sound mind and in possession of all of his faculties. It must also be certain that he is under no compulsion or coercion.
Beyond that, he is afforded the opportunity to retract his confession and he is encouraged to do so. If he retracts his statement, the prescribed punishment will not be carried out. This is what Allah?s Messenger (peace be upon him) did with M?`iz when he confessed to committing adultery. Allah?s Messenger (peace be upon him) turned away from him many times while he repeatedly said: ?I have committed adultery, so purify me.? Allah?s Messenger (peace be upon him) only turned his face away.
Then he said: ?Maybe you only kissed? and: ?Maybe you were drinking.? In spite of this the man was insistent. Then, when the people were going to administer the punishment, he denied everything and fled. They informed Allah?s Messenger (peace be upon him) of this and he said: ?Why not leave him to repent so Allah can forgive him.?
The wisdom behind the prescribed punishment for fornication and adultery
If we look at all the punishments prescribed by Islamic Law, we see that they all have two inseparable qualities:
A. Excessive recourse to caution for the benefit of the accused and the large number of provisions that must be met before a punishment can be carried out.
B. The harshness and severity of the punishments.
This guarantees two things. First of all, it preserves the general security of society and reduces crime, due to the harshness of the punishments. The potential murderer who knows he will be killed, the potential thief who knows he will have his hand cut off, and the potential sexual offender who knows that he will be stoned or given a hundred lashes will think twice before going out and committing the crime. If, on the other hand, he knows that he will only be imprisoned for a few months or a few years, then he might not pay heed to the punishment and might not be discouraged from committing the crime.
Secondly, it safeguards the life of the accused and guarantees him that no punishment will be carried out until every excuse is exhausted and every reason for discarding the punishment is looked into.
If we look at fornication and adultery, we see that it is dealt with in this manner. The condition for establishing it ? four reliable witnesses ? is a very strict one, and the punishment is decisive.
If we look at the application of this punishment, we find many aspects of the wisdom behind it:
1. It preserves general peace and security, because one of the most important motives for murder is the violation of someone?s honor. Applying the punishment against fornication causes a decrease in one of the major causes of violating people?s honor, which in turn, reduces the frequency of murder. This has a direct, positive effect on public safety.
2. It protects the family. The family enjoys a special esteem in Islam. The widespread practice of extramarital sex is destructive to the family, undermines its integrity, and destabilizes the relationships between its members. The severe punishment for fornication and adultery has the effect of reducing its occurrence, which has a direct, positive effect on the family in two ways. Firstly, the family of the one who commits adultery share in the experience of his punishment, so they are discouraged from committing the act themselves, which brings stability to the family. Likewise, the family who had been harmed by the act of adultery benefits by the reduced opportunity for this crime afforded by this punishment, so its stability is increased.
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.
The prescribed punishment for false accusation is given in the following verse of the Qur??n:
Those who accuse chaste women then do not come with four witnesses, flog them eighty lashes and never accept their testimony. They are the sinful ones.
The verse prescribes two punishments. The first is eighty lashes. The second is that their testimony will never again be accepted. These two punishments are above and beyond the punishment that they will receive in the Hereafter if they do not repent. These punishments were prescribed to safeguard the reputations of people from being stained by those who have nothing to do except destroy others by circulating damaging rumors.
In order to safeguard honor and reputation, Islam came with two complementary solutions:
A. It inspires the motivational power of faith and the deterrent of moral conscience in its prohibition of backbiting, spying, and suspicion of others. Allah says:
O you who believe, avoid a lot of suspicion, for verily some suspicion is sinful, do not spy, and do not backbite one another.
B. It legislates a fixed, prescribed punishment for false accusation. So whoever is not deterred by faith and fear of Allah will be deterred by the punishment.
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.
It may seem, at first glance, that drinking is damaging only to the intellect. In truth, it is equally destructive to life, wealth, reputation, and religion. This is because the habitual drinker becomes enslaved to his base desires, unable to entertain a higher thought or a noble purpose. In this way, his emotional sentiments are extinguished and his religious sensitivities are dulled so that they might never be revived. It is destructive of life. It causes incurable, fatal illnesses, above and beyond the damage it causes by provoking all sorts of conflict.
If we consider the losses incurred by the accidents, absenteeism in the workplace, unnecessary expenditure, and the treatments for the illnesses that it causes, we can see that it places great financial demands on the state. It removes from the human being that singular human quality of reason, by which man subjugates to his benefit everything in the Earth, and by removing this faculty, it makes him more akin to the beasts.
It weakens the value of social bonds, causing enmity and hatred between people, especially if we consider the words and actions that the drinker often directs at others.
These problems are the cause of a lot of harm and detriment. Therefore, Islam has decisively forbidden the use of wine.
Allah 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 Allah and prayer. Will you not then desist?
Since wine causes all of this material and spiritual harm, Islamic Law has imposed upon the drinker a fixed punishment.
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 (peace 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 Qur??n relates this event to us:
A group from the People of the Scripture said: ?Believe in what came down upon those who believe at the beginning of the day, then disbelieve at the end of the day, so perhaps they might return from faith.
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.
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. Allah says:
- O you who believe, retribution is prescribed for you in the case of murder.
- There is retribution in wounds.
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. Allah says:
If anyone waives the right to retaliation out of charity, it shall be an expiation for him.
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. Allah says:
To forgive it is closer to piety.
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 Allah 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.
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, so perhaps you may become pious.
The murderer, or any other criminal for that matter, if he 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, in two ways, cause the criminal to abstain from committing the crime. 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. Allah says:
A group of the believers should witness the punishment.
The Second Objective: Islam seeks to reform the criminal. The Qur??n 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. Allah says:
?except for those who repent before you take hold of them. Then know that Allah is the Forgiving, the Merciful.
Allah says regarding the punishment for fornication:
It they both repent and mend their ways, then leave them alone. Verily, Allah is the Accepter of repentance, the Merciful.
Allah says after mentioning the punishment for false accusation:
? except for those who repent afterwards and makes amends, then verily Allah is the Forgiving, the Merciful. Allah says after mentioning the prescribed punishment for theft:
Whoever repents after his wrongdoing and makes amends, then verily Allah will accept his repentance and verily Allah is the Forgiving, the Merciful.
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 Qur??n has asserted this objective when mentioning a number of punishments. Allah says:
- The thieves, male and female, cut off their hands as a recompense for what they have earned.
- The recompense for those who wage violent transgression against Allah 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.
Is it finished? ???