Introduction


The criminal or penal law is the body of law that regulates the power of the state to inflict punishment on persons in order to enforce compliance with certain rules.  Such rules typically protect public interests and values that society regards as crucial.  Criminal laws, therefore, give an insight into what a society and its rulers regard as its core values.

Rather than a uniform and unequivocal formulation of the law, Islamic criminal law is a scholarly discourse consisting of the opinions of religious scholars, who argue, on the basis of the texts of the Quran, the Prophetic narrations and the consensus of the first generations of Muslim scholars, what the law should be.

The levels of implementation of Islamic criminal law and the involvement of the different law-enforcing authorities (such as the qadi, the ruler and the executive officials) have historically varied from region to region and from dynasty to dynasty.

The application of Islamic criminal law has come to an end except for some instances like Saudi Arabia.  Its doctrine, however, lives on.  It is studied by Islamic scholars, and discussed and taught to students.

The Five Necessities


The ultimate objective of every Islamic instruction and piece of law is securing the welfare of humanity and creating a just and balanced society.  It does so by emphasizing the welfare in this world and success in the next one with the goal of bringing an egalitarian society.  Having understood this point, all Islamic laws can therefore be referred back to five universal principles that are deemed necessary for human welfare.  They are preservation of:

1.       Life

2.       Religion

3.       Reason

4.       Lineage

5.       Property

The Islamic penal code is also aimed at preserving these five universal principles.  To explain it further, the Islamic law of retribution aims to preserve life, the punishment of apostasy is meant to preserve religion, the punishment of consuming alcohol is to preserve the mind, the laws against fornication are to preserve lineage, and the punishment for theft is to preserve wealth.  To protect all five necessities, it prescribes the punishment for highway robbery.  Therefore, Islam’s fixed punishments for the following crimes:

1.       Transgression against life whether it is in the form of murder or assault.

2.       Transgression against religion through apostasy.

3.       Transgression against reason by the use of intoxicants. 

4.       Transgression against lineage through fornication or even a false accusation of adultery.

5.       Transgression against property in the form of theft.

6.       Transgression against all of these universal needs (highway robbery).

Features of Islamic Penal System


1.    The beauty of Islamic teachings is that its external checks and balances coincide with the moral compass of human beings that serves as an inner deterrent.  Islamic Law, when dealing with social problems such as crime, does not rely merely on legislation and external deterrents in the form of punishments.  It lays greater emphasis on the internal compass by placing the greatest emphasis on man’s own moral capacity.  It does so by developing the faculty of conscience from childhood so that he can value moral character as an adult.  Islam promises salvation to those who do good but warns those who practice wrong, thereby inspiring faith in God, hope in His mercy, and fear of His punishment to renounce immoral conduct and harming others whilst inculcating morality and a desire to do good to others.

2.    Islam creates a balanced relationship between the individual and the society.  While the divine Law protects society by legislating  strict punishments as deterrents against crimes, it does not marginalize  the individual for the sake of society.  On the contrary, Islam gives priority to protecting individual freedom and rights.  It does so by providing safeguards that leave no excuse for a person to resort to criminal behavior.  It does not set out to punish without first preparing for the individual a situation conducive to a virtuous life.

Forms of Punishment


Islamic Law is based on two principles:

a)     Unchanging basic tenets

b)    Changing secondary laws

For the permanent aspects of life, Islamic Law established fixed statutes.  For the changing aspects of life that are affected by social development and advances in human knowledge, Islamic Law provides general principles and universal rules that are applicable to different social setups and circumstances.

When these principles are applied to the penal system, Islamic Law comes with clear texts prescribing fixed punishments for those crimes that exist in every society because they are tied to the constant and unchanging human nature.

When dealing with other crimes, Islamic Law lays down the general principle that decisively prohibit them, but leaves the punishment to be decided by the legitimate political authority.  The political authority can take the circumstances of the criminal into consideration and determine the most effective way to safeguard society. 

Thus, punishments in Islamic Law are divided into three types:

1.     Prescribed punishments

2.     Retribution

3.     Discretionary punishments


Types of Punishments in Islamic Law


1-    Prescribed Punishments for Hadd Crimes


Hadd crimes are defined as offences with fixed, mandatory punishments that are based on the Quran or the Sunnah of Prophet Muhammad, may the mercy and blessings of Allah be upon him. The principal purpose of the institution of prescribing these punishments is to deter acts harmful to the fabric of the society.

A distinctive feature of the law of hadd crimes is that the doctrine has made it extremely difficult to obtain a conviction. This is achieved by three factors:

(1)  Strict rules of evidence to prove these crimes.

(2)  Extensive use of the notion of shubha (uncertainty) in determining crimes to suspend the strict punishments in most circumstances.

(3)  Limiting the definition of the crimes that carry the strict prescribed punishments so that many similar infractions fall outside the scope and cannot be punished with fixed penalties, but only at the discretion of the judge.

The crimes with fixed punishments are:

·       Theft

·       Highway robbery

·       Unlawful sexual intercourse

·       Unfounded accusation of unlawful sexual intercourse (slander, calumny, defamation)

·       Drinking of alcohol

·       Apostasy

Apostasy is defined as a Muslim making a statement or performing an action that takes him out of the fold of Islam. Its punishment was meant to be a remedy for problems that existed at the time of Prophet Muhammad. A group of tricksters would publicly enter Islam then abandon it in order to create uncertainty among the believers and make common people question the faith. The Quran relates this reality:

“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)

The prescribed punishment for apostasy was instituted to deter such behavior.

2-    Retribution


This is another form of punishment in Islamic Law. The perpetrator of the crime is punished with the same injury that he caused to the victim. The criminal is killed if the criminal killed the victim. If he severed 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.

3-    Discretionary Punishments


These are punishments that are not fixed by Islamic Law. They are for crimes that either infringe on the rights of Allah or the rights of an individual, but do not have fixed punishments or set expiations in the texts of the Quran or the Sunnah. They are the most flexible type of punishment because they take into consideration the needs of society and changing conditions. Islamic Law has defined different types of discretionary punishments ranging from reprimands to flogging, monetary fines, and imprisonment. 

Objectives of the Islamic Penal System


First Objective: Islam seeks to protect the society from crime. Rampant criminal behavior makes the society unsafe to live in and endangers its very survival if left unchecked. Islam seeks to establish social cohesion and security, thereby promoting peace. It has legislated punishments that are meant to discourage crime. This purpose is mentioned in the following verse that discusses retribution and its effect on society:

“There is (preservation of) life for you in retribution, O people of understanding, that you may become pious.” (Quran 2:179)

A criminal will think twice if he knows the negative consequences of his crime. Awareness of the punishment will give pause to the criminal to abstain from committing the crime in two ways:

a)     The criminal who has already been subject to the punishment will most likely not repeat the crime again.

b)    As for the rest of society, their awareness of the effects of this punishment will keep them from falling into the crime.

To thwart criminal behavior, Islam requires publicly announcing as to when it will be carried out based on the verse of the Quran:

“…A group of the believers should witness the punishment.” (Quran 24:2)

Second Objective: Islam actually aims to reform the criminal. The Quran often mentions repentance in association with the crimes to highlight the fact that the door to repentance is always open. In some cases, Islam has made repentance a means of waiving a fixed punishment. For example, in reference to the punishment for highway robbery, Allah says in the Quran:

“…except for those who repent before you take hold of them.  Then know that Allah is the Forgiving, the Merciful.” (Quran 5:34)

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.” (Quran 4:16)

Allah says after mentioning the punishment for false accusation:

“… except for those who repent afterwards and makes amends, then indeed Allah is the Forgiving, the Merciful.”

Allah also says after mentioning the prescribed punishment for theft:

“Whoever repents after his wrongdoing and makes amends, then indeed Allah will accept his repentance and indeed God is the Forgiving, the Merciful.” (Quran 5:39)

This objective is more relevant to discretionary punishments where the judge takes into consideration the circumstances of the criminal and what will ensure his reformation.

Third Objective: The punishment is a recompense for the crime. It is undesirable to treat a criminal lightly who threatens the security of the society. The criminal should receive his just recompense. It is the right of society and its individual members to be secure. The Quran mentions this objective in conjunction with a number of punishments. For instance, Allah 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 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…” (Quran 5:33)