The aim of the Sharī’ah with regard to the legislation of fixed penalties (Ḥudūd), just retribution (Qiṣāṣ), discretionary penalties (ta’zīr) and injury compensation (urūsh al-jināyāt) is to achieve the following
Ḥudūd constitute the maximum possible sentences, for they have been instituted for the most serious crimes. By intensifying these prescribed penalties, the aim of the Sharī’ah is to deter people and remove evil from the offender. Accordingly, when it is proven that a crime has been committed by mistake, the ḥadd punishment is waived. Similarly, if there is the slightest doubt or uncertainty (shubuhah) that could be used in favor of the offender, then the matter is considered on the same level as a mistake, in the sense that Sharī’ah do not apply. Furthermore, if it is revealed that the unintentional offense has been committed owing to extreme negligence to take the necessary precautions, the negligent person shall receive the appropriate disciplinary treatment.
Likewise, the purpose of giving the victim fair satisfaction takes into account the inclination for revenge that is rooted in human nature. Accordingly, the Sharī’ah has given the relatives of a murder victim (qatīl) the right of guiding the convicted offender (qātil), under the supervision of the judge, by a rope in his hand to the place where just retribution will be inflicted on him, which is known as qawad (retaliation). This is meant to satisfy them to the same extent if they were to take justice into their own hands.
The satisfaction of the victim is more important in the Sharī’ah than the reformation of the offender. Therefore, it carries greater weight when it is not possible to achieve both at the same time. An example is qiṣāṣ, where the reformation of the criminal cannot be achieved, so priority is given to the satisfaction of the victim or his relatives. For this, there is no point in the well-known disagreement amongst the scholars over the question of consent by the heirs entitled to exact qiṣāṣ (awliyā’ al-dam) to a pardon and blood money instead of inflicting retaliation, if the offender’s wealth is sufficient for that. In this respect, Ashhab’s view that the murderer must be forced to pay the blood money is more tenable, contrary to Ibn al-Qāsim’s opinion. That is why they agreed that if some of the relatives of the victim forgive the offender, qiṣāṣ is then cancelled. These factors, of course, do not apply to killing in brigandage (ḥirābah) and assassination (ghīlah), as we shall point out shortly.
It thus reverts to the purpose of reforming the community as a whole. This is because the execution of punishment according to established rules discourages perverse people and criminals from satisfying their devilish desires by committing crimes. Likewise, anything that acts as a deterrent constitutes a punishment. However, deterring the general public [other than the offender] must not transgress the limits of justice. Therefore, it has been an aspect of the wisdom of the Sharī’ahthat has laid down the punishment of the offender as a deterrent to others without violating justice. Hence, the Sharī’ah policy in instituting ḥudūd, qiṣāṣ and other types of penalties is meant to deter people from taking criminals as models.
Nevertheless, a pardon (‘afw) by the victim under certain circumstances does not defeat the purpose of deterrence, for it only rarely happens, and therefore it cannot be taken as the main reason for the offender to commit a crime. Consequently, we find that the Sharī’ah does not take into consideration forgiveness in the crimes that do not affect the right of a specific party, such as theft, the consumption of intoxicants, and adultery, because these offences are a violation of the very essence of legislation itself, and so too is brigandage (ḥirābah). As for assassination, no pardon by the relatives of the victim is accepted, owing to its hideousness. However, the repentance of the brigand (muḥārib) before his arrest has been accepted out of concern for peace and security and as a means of encouraging his companions to follow his good example.
Translated from Ibn Ashoor book
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By Asadullah Ali Al-Andalusi
The punishments required in Islam for certain crimes are often considered "barbaric" by non-Muslims and liberal Muslims alike. However, I believe this is due primarily to a misunderstanding of what the punishments entail and what exactly is being punished.
For example, many consider the punishments for adultery to be extremely harsh (i.e. lashing and stoning), but what many people don't understand is that adultery is not the thing that is actually punished -- rather it's the public display of adultery. This is why four witnesses are required; especially since Islam prohibits entering someone's private property without permission.
In other words, for such a punishment to be enacted, you'd literally have to have illegal sexual intercourse in a public place (enough so that you'd be noticed in full detail by four people).
Now, there are those who will argue that even with such a clarification, the punishments are still "too harsh". Why lash an unmarried couple for public displays of fornication? Why stone a married person for the same? Why not just fine them or jail them for a short amount of time?
But these questions display a lack of moral integrity and virtue when it comes to the issue of public displays of adultery. We are not just talking about the act of illegal intercourse here, but two people having the audacity to make it public -- an open rebellion against the very foundations of society itself (i.e. the family). It is not some innocuous performance done out of ignorance, but a willing protest against all moral decency.
And it's far worse when a married person does it. Not only are they spitting on the institution of marriage itself, but spitting in the face of their own family and children. Adultery is already such a heinous crime that one wonders why someone would have the gall to advertise it to the world. Even murderers and thieves try not to be as conspicuous.
Hence why the punishments are so harsh, because the very act that is being punished is so extreme -- almost inconceivable.
Thus, I think there is a no more fitting statement than "they were asking for it", because when you don't even bother to hide such an indecency then you are literally asking for whatever punishment exist -- no matter whether you perceive it as lenient or harsh.
At that point, neither of these categories matter, because you have agreed to the punishment by virtue of your behavior.
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Ansar Al-Adl explained :
5:33 The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter
5:32-34 ...If any one slew a person - unless it be as punishment for murder or for spreading corruption in the land - it would be as if he slew the whole people: and if any one saved a life, it would be as if he saved the life of the whole people. Then although there came to them Our apostles with clear signs, yet, even after that, many of them continued to commit excesses in the land. The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter;Except for those who repent before they fall into your power: in that case, know that Allah is Oft-forgiving, Most Merciful.
The present participle la-musrifun indicates their "continuously committing excesses" (i.e., crimes), and is best rendered as "they go on committing" them. In view of the preceding passages, these "excesses" obviously refer to crimes of violence and, in particular, to the ruthless killing of human beings. (Asad, The Message of the Qur’an)
Obviously, in view of the enormity of such acts of aggression, which are viewed by the Shari'ah (Islamic law) as an act of war against the laws and the creatures of God, there is no stricter punishment anywhere in the manmade laws. (Islamic Fiqh Council of Saudi Arabia, Terrorism – Islam’s viewpoint, Muslim World League Journal, Jumad al-Ula 1423/July 2002 CE)
The punishment for those who wage war against Allah and His Rasool and strive to create mischief in the land is death or crucifixion or the cutting off their hands and feet from opposite sides or exile from the land (based on the gravity of their offence)... (Malik, Al-Qur'an: Guidance for Mankind)
For the double crime of treason against State, combined with treason against God, as shown by overt crimes, four alternative punishments are mentioned, any one of which is to be applied according to circumstances...except that tortures such as "hanging, drawing, and quartering" in English Law, and piercing of eyes and leaving the unfortunate victim exposed to a tropical sun, which was practiced in Arabia, and all such tortures were abolished. In any case sincere repentance before it was too late was recognized as grounds for mercy. (Yusuf Ali, The English Translation of the Holy Qur’an, emphasis added)
This observation of Malik's gives me the impression that this punishment was prescribed solely to deter the potential criminal. (El-Awa, Punishment in Islamic Law; US American Trust Publications, 1993, p. 11, emphasis added)
Shaykh Muhammad Abu Zahra, in his previously mentioned book [Al-Jarima wal-'Uqba, pp. 6-11], explains the aim of both Islamic law, as well as the sacred Jewish law contained in the Torah, is to achieve public security and peace for the community as well as the retribution for the criminal minority; accordingly, the necessary means for the attainment of this latter end were prescribed both in the Torah and the Qur'an. The second question concerns the law of pardon for offenders who repent and whether the punishment for Hirabah should be considered a dead letter because of this law. To answer this question, one should again bear in mind that this punishment, and indeed all the hudud punishments in the Islamic penal system, are prescribed mainly to protect society from crime. In order to achieve this purpose, Islamic law, while prescribing punishment for criminals, makes it possible for them to be pardoned when they realize the evil of their conduct and desire to mend their ways. This does not contradict the earlier quotation from Abu Zahra. While punishment may be withheld, provision must be made for all the injuries and harm resulting from the criminal's act. In this way, society does not lose anything. On the contrary, it gains a new member who, if he had not been given the chance to repent, forever would have been considered an outlaw. (El-Awa, Punishment in Islamic Law; US American Trust Publications, 1993, p. 13, emphasis added)
Lest some of these penalties may appear 'barbarous' to some hypersensitive Western reader, let him cast a glance on 'drawing and quartering', a penalty of the English Criminal Code maintained as late as the 18th century, inflicted on those found guilty of high treason touching the king's person or government. The person committed was usually drawn on a sledge to the place of execution; there he was hung by the neck from a scaffold, being cut down and disemboweled, while still alive, his head was cut from his body and his corpse divided into four quarters. With the profession of their faith declared as high treason by law many Catholics of England and Ireland suffered this death. 'In this reign of Henry III and Edward I there is abundant evidence that death was the common punishment of felony; and this continued to be the law of the land as to treason and as to all felonies, except petty larceny, down to the year 1826' (Stephen, History of the Criminal Law of England, I. p. 458). In contemporary English law, robbery is larceny with violence; and the guilty is liable to penal servitude for life, and in addition, if a male, to be once privately whipped. The elements of the offence are essentially the same under American law (EBr. XIX. p. 346). (Daryabadi, The Glorious Qur’an, emphasis added)
Similar Narration
Bukhari: Some people from `Uraina tribe came to Medina and its climate did not suit them, so Allah's Apostle (pbuh) allowed them to go to the herd of camels (given as Zakat) and they drank their milk and urine (as medicine) but they killed the shepherd and drove away all the camels. So Allah's Apostle sent (men) in their pursuit to catch them, and they were brought, and he had their hands and feet cut, and their eyes were branded with heated pieces of iron and they were left in the Harra (a stony place at Medina) biting the stones. (Volume 2, Book 24, Number 577)
-Some people from Urayna (or Ukil) tribe came to Madinah after accepting Islam -They acquired an illness due to the climate, for which the arabs used to drink milk and urine of camels as medicine -The Prophet Muhammad (peace be upon him) allowed them to go to the herds of camels for their medicine -After recovering from their illness, they killed the sheperd and drove away the camels -The Prophet Muhammad (peace be upon him) ordered their hands and feet cut off, their eyes branded with heated pieces of iron, and they were left in the desert
It should be made clear that those people who came to the Prophet (peace and blessings be upon him) were Muslims and they were sick. The Prophet advised them to go to the herd of camels and to drink their milk and urine (as a medicine). When they became healthy, they killed the herder of the Prophet and drove away all the camels that were allocated for sadaqah (charity). When the Prophet (peace and blessings be upon him) came to know about this, he applied the punishment for Hirabah on them. Hiraba means killing people, robbing their money or raping women by an armed group of people. The punishment for Hirabah is mentioned in the Qur’an. Allah says: “The only reward of those who make war upon Allah and His Messenger and strive after corruption in the land will be that they will be killed or crucified, or have their hands and feet on alternate sides cut off, or will be expelled out of the land. Such will be their degradation in the world, and in the Hereafter theirs will be an awful doom” (Al-Ma’idah: 33).
As for branding their eyes, the Prophet (peace and blessings be upon him) branded the eyes of the people of `Ukl or `Uraina with iron because they killed the herder and branded his eyes with iron. Imam Ibn Hajar stated the differences of opinions among scholars and he said, “The killing that took place (that is, in reference to the above hadith) was in retaliation and Allah Almighty says,
‘And one who attacketh you, attack him in like manner as he attacked you’ (Al-Baqarah: 194).”
All in all, using this story as evidence in favor of the permissibility of torturing people in Islam is refuted by the fact that the Prophet (peace and blessings be upon him) applied the punishment for Hirabah on them and that he did not do so for personal vengeance. (SOURCE, emphasis added)
There is only one part of the referred narrative, which raises a question-mark in one's mind. It apparently seems strange that after having implemented the punishment prescribed in the Qur'an for crimes committed against the society, in general, why did the Prophet (pbuh) ordered their eyes to be branded. Most of the narratives do not provide an answer to this question. However, in one of the narratives reported in Ibn Al-Jarood's Al-Muntaqaa, Anas (ra) is reported to have explained the reason for this punishment as well. The companion of the Prophet (pbuh) is reported to have said: The Prophet (pbuh) branded their eyes because they had branded the eyes of the herdsmen. (volume 1, Pg. 216)
This explanation adequately clarifies the fact that the Prophet (pbuh) ordered the branding the eyes of the culprits, in compliance with the Qur'anic directive of Qisaas (Al-Baqarah 2: 178, Al-Maaidah 5: 45) for the punishment of murder and inflicting physical injury on someone. In view of the foregoing explanation, I find no reason to consider the incident narrated in the referred narrative to be unauthentic. (SOURCE)
When the criminals of 'Urainah betrayed the community of Madinah which had met them with all love and respect -- by torturing and killing the herder of their camels and escaping with the Muslim's camels as their booty -- the Prophet quickly marshalled all his powers, arrested and dealt with them in the severest manner as the law allowed him. (Al-Sid, Islamic Criminal Law: The Hudud; Malaysia, Eagle Trading Sdn. Bhd., 1995, p. 132)
On the other hand, the prevalent view among Muslim jurists is that the case of this group of 'Ukal and 'Urayna was a case of hiraba (armed robbery) and it was for this crime that they were punished (fn. See Tabari, Tafsir, vol. VI, pp. 132-146; Ibn al-Qayyim, Zad al-Ma'ad, vol. III, p. 78; Ibn Hajar, Fath Al-Bari, where he criticises Bukhari's view). The text itself demonstrates this very clearly. (El-Awa, Punishment in Islamic Law; US American Trust Publications, 1993, p. 51)
