SHARIA LAW AND THE PUNISHMENTS IN ISLAM
Posted on January 23rd, 2013
By A. Abdul Aziz
The world today presents a horrific scenario of crime, violence, killing and a determined attempt to destroy the very pillars of social order which sustain peace, tolerance, harmony and human dignity. The lives of millions around the world have been ruined and they are going through an unbearable syndrome of traumatic suffering and ruthless devastation. The evil deployment of modern technology has given rise to a global institution of a criminal order which is the most critical challenge of the world today. The world is dearly searching for ways to combat, control and check the raging storm of crime, and that makes it all the more pertinent to present this subject, the Philosophy of Punishments in Islam.
We see in the Holy Qur’an:-
“These are the limits set by Allah, so approach them not. Thus, does Allah make His commandments clear to men so that they may become secure against evil.” (2:188)
According to Muslim perception, Islam is not only a religion but also a civilization and social order based upon revealed principles. Islam stands out distinctly among the religions of the world in that its punishment and retribution laws are applied under exclusive rules and regulations, dealing with matters related to obligations to Allah and obligations to human kind. Under no circumstances has man the right to punish anyone for non-compliance with the obligations to Allah. So as a result of this distinction, Islam totally liberated man’s obligations to worship from human intervention and interference.
God Almighty considers to be His right to punish as He so wishes the offenders who associate something with Him, apostasy, blasphemy, opposing Him and His Messenger, maligning Him and His Messenger and obstructing His Messenger in his prayer and in his mission. Because of the severity and perfidy of these offences, God Almighty does not transfer the right of dispensing justice to such offenders to anyone – not even to His most beloved of Prophets. Instead, He tells the Holy Prophet, ‘forgive them and turn away from them’.
It is because God Almighty considers the offences to be so grave that no punishment in this world can do justice to the severity of the offences. God Almighty has prepared an abasing punishment for such people in the Hereafter as God Almighty says in the Holy
“On the Day of Resurrection, He will disgrace them; they will enter the gates of Hell to abide therein. Evil, indeed is the abode of the proud.” (16:28,30)
The other major rationale for punishment is denunciation. Under the denunciation theory, punishment should be an expression of societal condemnation. For our guidance, Allah Almighty has revealed in the Holy Quran a complete code of life – a law to govern all dimensions of human life. This in Islam is known as ‘Sharia’.
For the sources of ‘Sharia‘, we then have the Holy Quran, which is the very word of God. Supplementary to it, we have Hadith, which are traditions of the Holy Prophet of Islam – the records of his actions and his sayings, from which we must derive help in arriving at legal decisions. If, in the unlikely event, there is nothing either in the Holy Quran or in the Hadith to answer the particular question before us, we have to follow the dictates of reason in accordance with certain definitive principles.
In Islamic law, offences are divided into two major groups: Firstly, crimes for which ‘Hadd’ (Hadd – an Arabic word that means the limit set by God) punishments ordained by God are given. Secondly, other crimes such as homicide, assault and damage to property etcetera, punishments for which include retaliation, expiation and disciplinary action. However, Islam also provides guidelines on how to determine criminal liability.
For example, all acts are judged by their motives and intentions. (Bukhari). The Holy Quran uses the word ‘kasab’ for commission of crime, which implies a deliberate effort. If there is no intention to violate or exceed the limits then there is no criminal liability and the act is pardonable. Any act carried out in ignorance and without adequate knowledge deserves pardon.
God Almighty says in The Holy Quran:
“Verily, Allah accepts the repentance of only those who do evil in ignorance and then repent soon after. These are they to whom Allah turns with mercy; and Allah is All- Knowing, Wise.” (4 :18) Hadrat Ayesha (ra) narrates that the Holy Prophet (Peace and blessings of Allah be upon him) said: Try as far as possible to save a Muslim from punishment. If there can be a way to save him, then think of settling the matter. For the Imam to make a mistake in forgiving and acquitting is better than making a mistake in giving punishment (Tirmidhi Abwab AlHudood).
Hadrat Ibn Abbas (ra) narrates that the Holy Prophet (Peace and blessings of Allah be upon him) said: stop the enforcement of ‘hudood’ (limits) because of doubts. That is, do not make haste in issuing a ‘hadd’ punishment to anyone. Rather, if there is a possibility of doubt, make it a base for pardon. That makes it abundantly clear that punishments in Islam are not for revenge, but reformation, and must not exceed the extent of the offence.
Today, in the world, the ruin of families on a large scale, the weakening of family connections, and the growing lack of loyalty and trust in relationships; the growing pandemic of divorces and the sense of being rejected; moreover the spread of horrific venereal diseases such as AIDS, can be blamed on this one offence of adultery.
Islam regards adultery as one of the most heinous of all social crimes and looks upon chastity of a man or a woman as one of his or her most precious possessions. For the establishment of the kingdom of God, Islam strongly condemns this most deadly of all social crimes which if not checked and suppressed, can bring about total disintegration and destruction of society. The Holy Quran seeks to close all those avenues through which this evil can find its way among a people and severely punishes the act of adultery and condemns the guilty parties as social pariahs. As far as the nature of punishment is concerned the Holy Quran says: ‘The adulteress and the adulterer (or the fornicatoress and the fornicator), flog each one of them with a hundred stripes.’ (24:3)
Flogging and not stoning to death is therefore the punishment prescribed by Islam for adultery or fornication. Nowhere in the Holy Quran has stoning to death been laid down as punishment of adultery and for that matter for any other crime, however serious. The misconception seems to be due to a few cases recorded in the hadith (sayings of Holy Prophet) when married persons guilty of adultery were stoned to death by the order of the
Holy Prophet. One of these few cases was that of a Jew and a Jewess who were stoned to death in accordance with the Mosaic law. (Bukhari). It was invariably the Holy Prophet’s (peace be upon him) practice that he abided by the law of the Torah in deciding cases until a new Commandment was revealed to him. It is mentioned in St. John Chapter 8, V:4-5 of the Bible and I quote: ‘they say unto him, Master, this woman was taken in adultery, in the very act. Now Moses in the law commanded us, that such should be stoned’.
The misconception has persisted among certain schools of Muslim religious thought that flogging is punishment for unmarried persons only and that punishment for married adulterer and adulteress is stoning to death. In principle and sensibly in accordance with this directive, Jesus (Peace be upon him) must be followed faithfully to this day. It is however, another matter that it is not adhered to. In the light of this explanation, we witness an interesting scenario in this age, where the Jewish and Christian States, against their religious teachings, do not stone the adulterers to death, but some Muslim States in contrast to the teaching of the Holy Quran, impose the punishment of stoning to death for adultery.
The other social evil, second to adultery in heinousness, which eats into the vitals of human society, is the slandering of innocent people. Islam also views with extreme disfavour this social evil which has become so common in the so-called civilized modern society, and severely punishes the accusers. God Almighty says:‘And those who calumniate chaste women but bring not four witnesses – flog them with eighty stripes and never admit their evidence thereafter, and it is they that are transgressors.’ (24:5) Here, the Holy Quran mentions three forms of punishment in an ascending order which are to be meted out to a slanderer.
Firstly, the physical punishment of scourging. Then, disgrace of being branded as a perjurer and a liar which invalidates his or her evidence, and the spiritual stigma of being adjudged as a transgressor. In case the accuser cannot produce the necessary evidence in support of his charge, the charge would be considered as false and the accuser would render himself liable to the prescribed punishment. Whatever the facts of the case, the woman with whom adultery is alleged to have been committed will be held innocent as long as the required evidence is not produced. The law, in fact, is intended to suppress with a strong hand the offence of slandering and scandal-mongering. The commandment contained in the Holy Quran covers both men and women without any distinction.
The third offence set out in the Holy Quran is murder. Allah says;
‘O ye who believe, equittable retaliation in the matter of the slain is prescribed for you.The free man for the free man, and the slave for the slave and the female for the female. But if one is granted any remission by one’s brother, then pursuing the matter for the realization of the blood money shall be done with fairness and the murderer shall pay him the blood money in a handsome manner. This is an alleviation from your Lord and a mercy and whoso transgresses thereafter, for him there shall be a grievous punishment.’
The verse makes no distinction between different classes of persons in connection with the law of retaliation. The punishment applies to all offenders who might be guilty of murder, no matter of what rank or station in life or of what religion. Any person, irrespective of his cast or creed and irrespective of his station, must be put to death for the murder of any other person unless pardoned by the relatives of the victim and unless the pardon has the sanction of the authorities.
This verse comprises a very important principle of civil law, that is, equality of man and necessity of awarding proportionate punishment to all offenders without distinction. Unless an offender is forgiven by the relatives of his victim under circumstances that are expected to lead to improvement and betterment of conditions, punishment for the slain as prescribed is obligatory. The authorities responsible for law and order are bound to punish the offender according to the requirements of law, having no right to pardon him of their own accord. On the other hand, the heirs of the murdered person are not entitled to take the law into their own hands and inflict the punishment on the guilty person themselves.
So Islam simultaneously retains the punishment of death for murder but in some cases without depriving anyone of their right an exceptional form of punishment has also been created. This exceptional form is also based on profound wisdom; It is possible that the heirs of the murdered victim may be entirely dependant upon the person murdered for their subsistence. In such a situation capital punishment cannot fulfil a practical basic need of the family’s welfare. Thus, for making provision of claiming ransom in lieu of capital punishment, Islam offers a practical choice to the grieved family. Basically, Islam structures a society which is founded on the spirit of true fraternity where the blood of a Muslim is unlawful upon another Muslim. What a beautiful teaching imbued with the love of Allah and humanity condoning purity of heart and mind and emphasising the fact that in Islam punishment is a forceful positive power of rectification and reformation for the sustenance of a pure God loving society.
The fourth offence that is mentioned is stealing. The punishment prescribed for theft may again to some appear to be too severe. However, as I just mentioned, punishment if it is to be deterrent and effect change, has to be exemplary. God Almighty says in the Holy Quran: “And as for the man who steals and the woman who steals, cut off their hands in retribution of their offence as an exemplary punishment from Allah. And Allah is Mighty, Wise.” (5 :39) It is better to be severe to one and save a thousand than to be indulgent to all and ruin many. He certainly is a good surgeon who does not hesitate to amputate a rotten limb to save the whole body.
However, to understand the philosophy of this punishment, it would be helpful to comprehend the background of the society which Islam envisages to establish. A knowledge of the financial guarantee which an Islamic economic system provides to every citizen of the country is also necessary. As far as the structure of society is concerned, Islam builds it on simple living, truth, righteousness and abstinence from absurdities of life and senseless customs. Islam establishes a society which is pure of such frolics and has the least causes which could be held responsible to tempt someone to steal. These are the aspects of the society which irrespective of religion or belief are to be observed by every subject of an Islamic State. As far as Muslims are concerned, there is emphasis on worship and purity of heart and sight, and the moral teaching provides details regarding obligations to humans. In the light of all that, if the residents of a country are truly Muslims, the thought of stealing should be unimaginable. However, it is sad that in the real situation, such a scenario is difficult to present.
The Muslim States have sadly become the hubs and breeding grounds of evil crime, fraud and falsehood, leave alone theft and robbery. In these circumstances, there can be no better punishment than the one imposed by Islam, that is, the punishment of cutting the hands. Such a punishment becomes a warning indicator and a deterrent for others. Moreover, this punishment has a very powerful effective force for the prevention of stealing.
For the punishment of cutting the hands of a thief, Islam has also laid down limits on conditions such as that the stolen goods should not be edible on which the sustenance of life depends or pilfering or lifting. For such offences some other form of befitting punishment is meted out.
The philosophy of punishments in Islam indicates that Islam provides punishment only as a last resort and the purpose behind is reform brought about through a blending of human values and justice tempered with mercy. Encouraging forgiveness where it is likely to reform and improve things, providing severe punishment where there is clear disregard and exceeding the limit of law.
Finally, I repeat, as Holy Prophet of Islam said: all acts are judged by their motives and intentions. (Bukhari). If there is no intention to violate or exceed the limits then there is no criminal liability and the act is pardonable. Any act carried out in ignorance and without adequate knowledge deserves pardon.