by Dr. Ali Shehata
The Islamic Criminal Punishment System
Understanding the foundations and basic principles of the Islamic Shari’ah are certainly important, but the attention of the world these days is focused mostly on only one aspect of the Shari’ah—the criminal punishment system. It has been called barbaric, backward and cruel, yet most people, even a significant percentage of Muslims, know precious little about this system and its rulings.
The primary goal of every criminal punishment system is the security and stability of the general populace. Certainly, security is a basic human need, no less important than food and shelter. Without security, society will quickly disintegrate into anarchy.
The Islamic criminal justice system is no different in this regards. As mentioned earlier, it is aimed at preserving the five universal pursuits: life, intellect, religion, lineage and property. For example, to protect life it sets down the law of retribution, to protect intelligence it imposes punishment for drinking alcohol, and to protect property it established punishment for theft, and so on. Consequently, the Islamic penal system is based upon a number of principles, some of which are:
1. Nothing is prohibited with the exception of that specified in the Revelation. Deeds can only be prohibited if their prohibition is clearly stated in the Quran or Sunnah. This principle is stated in many verses of the Quran, like: “We punish no one until after we send a Messenger.” {17:15} Thus, all actions are assumed to be permissible, unless there is clear proof indicating otherwise.
2. No one can be held responsible for the crimes of another. Thus in Islamic Law, the individual is solely accountable for his or her crime. The Qur’an has established this principle in many verses such as: “And every soul earns not [blame] except against itself, and no bearer of burdens will bear the burden of another.” {6:164}
3. The Islamic criminal system, like other Islamic institutions, is equally applicable to everyone, and no one is above the law in Islam. Everyone is equal before it, no matter what his or her standing in society might be. The Quran has established this principle of universal equality before the law in the following verse: “O mankind, indeed We have created you from male and female and made you peoples and tribes that you may come to know one another. Indeed, the most noble of you in the sight of God is the most righteous of you. Indeed, God is All-Knowing and Acquainted.” {49:13}
The Prophet Muhammad pbuh also clearly demonstrated this principle of equality before the law when a woman from the Makhzum family—a very wealthy and powerful family—committed theft. The local people tried to have her acquitted because of her family’s standing, but the Prophet said: “O people, those who came before you were destroyed because they used to pardon their nobles when they stole, but would apply the punishment on the weak. By God, if Fatimah, the daughter of Muhammad, committed theft, I would amputate her hand.” [Muslim]
4. Punishments are never to be carried out if there is doubt as to whether or not the crime has been committed, or whether or not there was a legal justification for making it excusable (like necessity, reasonable ignorance, incompetence, etc.). The Prophet established this principle through his gentle behavior with people who sought to admit their crimes as will be detailed below.
Furthermore, in addition to retribution, Islamic Law recognizes two other categories of criminal punishments. The first are punishments that are detailed in the Quran and Sunnah for specific crimes. These punishments cannot be waived or modified when a conviction is pronounced.
The other category of punishments is of a flexible nature. These are to be applied in cases where the divine texts establish the prohibition of certain actions without setting down a specific punishment. In such cases, 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 as well as reform the offender. Thus, punishments in Shari’ah Law are of three kinds:
1. Retribution
2. Prescribed punishments, known as Hudood
3. Discretionary punishments
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