Punishment In Islamic Law

Punishment In Muslim impartialityIntroductionIn each(prenominal) partnership, security and stability argon basic needs no less important than new(prenominal) needs wish well food and clothing. Travis Hirschi propounded a theory of social discover that emphasizes on the social occasion of society in the control of criminal behaviour1. It specifies the fact that no society can afford to denounce criminal activity with come forward duly accepting its responsibility towards the same. In other words the theory of social control elaborates on the onus that is sh bed by society and devised control mechanisms to ensure a safe social arena, one that is devoid of whatsoever type of delinquency. Man exhaust been conscious of the need for security since the beginning of workness and with the make believeation and evolution of society, we now have what is cognize as the validation of the state or government and the formation of rectitudes.The development of these man-make laws did non come to completion except in the last some centuries after a long experience of trial and error2. On the other hand, the Law of Islam that was sent down to Muhammad in Allahs (SWT) final message to humanity has paid careful attention to this matter and has come with a complete legal system. Taking into consideration the changing circumstances of society as salubrious 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 some(prenominal) era or place. Likewise it has set down penalisations for certain offenses that are non affected by changing conditions and circumstances. In this way Islamic Law combines amidst stability, flexibility and firmness3.Punishment in generalPunishment is defined as the act of punishing or the go of being penalise4. Theories of penalty can be divided into two general philosophies, the utilitarian theo ry and the retributive theory. The utilitarian theory of penalisation aims at punishing offenders to deter or deter future wrongdoing. The exercise of punishment is to act as an specimen to the rest of society and put others on nonice that criminal behaviour testament non be tolerated and will be punished. The retributive theory on the other hand seeks to punish offenders because they deserve to be punished.Punishments chthonic Islamic LawAs with all penal systems, the Islamic law system prescribes punishments when someone is found dishonored of a wrongdoing. The philosophy of punishments in Islam indicates that Islam provides punishment precisely as a last resort and the purpose behind it is reform brought about through a blending of human values and justice indurate with mercy. Punishments in Islam reflects its values w here(predicate) it puts the interest of the society in the lead the interest of an individual5. The punishment can be severe depending on the crime but have to abide with strict rules and have prominent features6. Some of the features of punishment are as follows7-Punishments are meant to be a last resortPunishments are made to be examples to the habitualPunishment are to reform an offenderPunishments are a form of revenge for the dupe.The punishment system in Islam is aimed towards the three holding 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 hinderance method to save society from crimes and eventually to victims, punishment is a means of retribution. Punishments in Islamic Law were set down to protect and secure the ultimate five elements of peoples interests al-dharuriyat (necessities). These are deen (belief), an-Nafis (life), al-aqil (intellect), al-mal ( riches) 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), Tazir (chastisement) and Mukhalafat (which covers areas of the rights of the state).HaddHadd (plural hudood) literally means boundaries or prohibition8. It is considered to be the most severe of crimes as they go against Gods will and punishments for these crimes are fixed as they have been prescribed by Allah (SWT) in the Holy Quran9. The seven offences prescribed are zina (illicit sexual relations), qazaf (false electric charge 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 compressed rules thus, making conviction difficult10. If the crime is proven, offenders for these crimes are punished in public as a measure of deterrence11. thus far 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 tempered as treason. A authorization punishment has been set for this offense. Males face beheading, duration 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.12The punishments that have been set and have to be carried out if all criteria for evidence have been satis geneily met for the rest of the offences prescribed above are13Zina 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 fac e 40 lashesSariqah A kickoff time offender faces amputation of one hand at the wrist, a morsel 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-arm 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 Shafii schoolBaghy Death is obligate for those who fight and are captured. However, tazir 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 hudood 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 fe male cut off his or her hands, a punishment by way of example, from God, for their crime and God is Exalted in power14.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 aim to punish the offender is to set an example for the rest of society that an act of fall awaying 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. barely this is not to say that downstairs 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 DiyatAnother feature of Islamic Law is the right of retribution (Qisas). The concept of retribution is explained in the Holy Quran as followsThe 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.15In 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 queer feature of the punishment of these crimes is that the victim is able to request for punishment or to forgive the offender16. The victim may likewise 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, etc17.TazirTazir punishments are diplomacyary punishments that do not fall under the jurisdiction of hudud or qisas and cannot be used as an alternative to these punishments. Tazir can, however, be used if a crime has been founderted 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 scholarly person 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 donkey18. 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 tazir 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 tazir one of which is the situation of the offender where aspects such(prenominal) as the social status of the offender as it is believed those from the commoners require harsher punishment to reform than those in higher(prenominal) classes. It has to also be determined if the offender has committed similar crimes in the past, making the punishment individualized.19MukhalafatThis 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 daintiness of the judge or the legal authorities.KaffarahIf a person who has not fulfilled their duty (such as not fasting or performing prayers), the individual is indispensable 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.20The kaffarah that needs to be performed depends on the violation that had occurred.21It 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 ones duty or obligations under Islam of which there are also punishments prescribed.Punishment as a last resortSeverity of punishments as a form of prevention and deterrenceThe 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 lack 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 come apart 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 body22. 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 b ecause punishments under Islamic Law are seen to be harsh, it does not necessarily make them unjust. According to Abdur-Rahman.Doi23, 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 unknowingly reduces the crime rate in a society administered by sharia law. He cites the example of Saudi Arabia (in spite of the distorted ideology of its government) in recent measure and the era of the first generation of Muslims more than fourteen hundred years ago24.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 offenders punishment is reduced from the level of Hadd to Tazir, where the judgement is left to the discretion of the judge.Fear of Allah (SWT) and accountability in the Here afterAccording 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 annoyance 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 life25. 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 2281Punishment is a essential evilAbdur-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 crime26. 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 evil27. 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 hence be imposed as a last resort.Waiver of punishments in the bearing of doubtAny shred of evidence that is doubtful or fine will prevent punishment. It is narrated in the Seerah (life) of Muhammad (saw) ho w he would exert himself to avert the punishment when individuals asked for punishment to be implemented upon them28. It is narrated that Muhammad (saw) said, To free someone criminal dislocatenly is better than to punish someone innocent mistakenly29Aisha 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 cl aim them, or God ordain for them some (other) way30.If there is a puny 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 RetributionUnder 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 hands31.If we compare this with a country l ike 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 clash 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 senten cing 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 ForgivenessThe 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 Allah32. The ideal way is not to seek revenge at all but reconciliation and to make the offender realize the temperance of his or her offence.The Concept of TawbahThe 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 re dig from sin.33The 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 Merciful34 andExcept 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 2160.One is said to have repented if there is a feeling of genuine remorse, shame and resolve to not repeat the crime.35Where a person has repented before being caught or arrested, the effect of this is that it can remit the hadd punishment.Islams approach towards crime preventionIslam 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 guard crime in the society. Some of the key measures that are thought to wait on members of the society to resist the urge to commit crimes36are as follows-Moral growing and pre-crime reformSelf purification is one of the main goals of the Prophets (peace be upon him) mission37. 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 individuals 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 propagation 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 incorporated 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 syndrome38. 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 criminal39.While Shariah protects society by enact punishm ents 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.FamilyFamily is considered as the tower 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 povertyThis refers to the societys duty to help t he 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 whole caboodle 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 Madinah40. 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 (5119)In Malaysia for example, a mother who stole a tin of milk for purposes of feeding her child was sentenced to a days jail and imposed a RM500 fine in indifference of one months jail41. One tends to wonder looking at the sentence passed if the sentence imposed was compassionate and justified considering the circumstances tha t 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 fuddled criminal laws in Malaysia.ConclusionTo 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