Crime and Punishment in Islam

 

Security and stability are basic human needs, no less important than food and clothing. Without security and stability, a human being is not able to properly conduct his daily life, let alone come up with new ideas or contribute to the development of a high level of civilization.

Man has been conscious of the need for security since the beginning of his life on Earth, and he has continuously expressed his awareness of this need in many ways. With the formation and evolution of human society, he has expressed this and other needs through the establishment of a state and the formation of laws. This was accomplished in order to ensure general security, settle disputes and conflicts that threaten society, and oppose external threats to its security posed by other nations. The development of these man-made laws did not come to completion except in the last few centuries as the result of a long process of trial and error.

By contrast, the Law of Islam was sent down to Muhammad (peace be upon him) in its complete form as part of Allah’s final message to humanity. Islamic Law pays the most careful attention to this matter and provides a complete legal system. It takes into consideration the changing circumstances of society as well as the constancy and permanence of human nature. Consequently, it contains comprehensive principles and general rules suitable for dealing with all the problems and circumstances that life may bring in any time or place. Likewise, it has set down immutable punishments for certain crimes that are not affected by changing conditions and circumstances. In this way, Islamic Law combines between stability, flexibility, and firmness.

From what angle does Islam approach combating crime? What are the principles that the Islamic penal code is based upon? What are the distinguishing features of this code? What are the measures that it employs to combat crime? What types of punishments exist in Islam? What are the objectives behind their being legislated? These are the questions that will be dealt with in the following pages.

The Islamic Approach to Combating Crime

The ultimate objective of every Islamic legal injunction is to secure the welfare of humanity in this world and the next by establishing a righteous society. This is a society that worships Allah and flourishes on the Earth, one that wields the forces of nature to build a civilization wherein every human being can live in a climate of peace, justice and security. This is a civilization that allows a person to fulfill his every spiritual, intellectual, and material need and cultivate every aspect of his being. This supreme objective is articulated by the Qur’ân in many places. Allah says:

 

-         We have sent our Messengers with clear signs and have sent down with them the book and the criterion so that man can establish justice. And we sent down iron of great strength and many benefits for man.

- Allah wants ease for you, not hardship.

- Allah wants to make things clear for you and to guide you to the ways of those before you and to forgive you. Allah is the All knowing, the Wise. Allah wants to forgive you and wants those who follow their desires to turn wholeheartedly towards (what is right). Allah wants to lighten your burdens, and He has created man weak.

- Allah commands justice, righteousness, and spending on ones relatives, and prohibits licentiousness, wrongdoing, and injustice.

Since the Islamic legal injunctions are aimed at achieving human welfare, they can all be referred back to universal principles which are necessary for human welfare to be secured. These universal principles are:

1. The preservation of life.
2. The preservation of religion.
3. The preservation of reason.
4. The preservation of lineage.
5. The preservation of property.

The Islamic penal system is aimed at preserving these five universal necessities. To preserve life, it prescribes the law of retribution. To preserve religion, it prescribes the punishment for apostasy. To preserve reason, it prescribes the punishment for drinking. To preserve lineage, it prescribes the punishment for fornication. To preserve wealth, it prescribes the punishment for theft. To protect all of them, it prescribed the punishment for highway robbery.

It should therefore become clear to us why the crimes for which Islam for which the Law has prescribed fixed punishments are as follows:

1. Transgression against life (murder or assault).
2. Transgression against property (theft).
3. Transgression against lineage (fornication and false accusations of adultery).
4. Transgression against reason (using intoxicants).
5. Transgression against religion (apostasy).
6. Transgression against all of these universal needs (highway robbery). < p class=chap1>Principles of the Islamic Penal System

The Islamic penal system is based on a number of principles, the most important of which are as follows:

The first principle is that nothing is prohibited before the appearance of the Divine Law. Deeds are only described as prohibited if their prohibition is stated in the sacred texts. This principle is implied by many verses of the Qur’an and indicated by a number of the rules of Islamic jurisprudence.

Among these verses are:

-         We would punish no one until after we had sent a messenger.

- Your Lord would not destroy the towns until He sent a messenger to the mother of the towns who would recite to them Our signs.

The jurists have derived two rules of jurisprudence from verses such as these. The first is that no accountability exists before the appearance of the Divine Law. The second is that everything is assumed to be permissible unless there is proof indicating otherwise.

These two rules in the Islamic penal system mean that punishments for prohibited acts outlined by the sacred texts apply only to crimes they are committed after the relevant texts have been revealed. This is with regard to prohibited acts that have fixed punishments prescribed for them by the texts. As for the prohibitions of a more discretionary nature – where the divine texts establish that certain activities are prohibited but make no mention of a prescribed punishment – in these cases the punishment is to be determined by the political authority in light of the indications given by the prescribed punishments for other crimes.

The second principle is that previous violations are to be pardoned (punishments are not retroactive). This principle, which is a consequence of the previous one, means that the divine texts that prescribe fixed punishments for certain crimes are not to be carried out on people who committed these acts before the texts prohibiting them were revealed. They are only applicable to those who commit these crimes after their punishments have been prescribed. The previously mentioned verses point to this principle, as do the following. Allah says:

-         Allah has pardoned what has passed.

- Say to those who disbelieve that if they desist, Allah will forgive them what has passed.

The third principle is that no one is punishable for the deeds of others. This means that, in Islamic Law, the individual is solely accountable for his or her crime, and no one else will bear the burden of an action that he or she committed. No one will be punished for a crime committed by someone else, no matter how close the two people might be related. The Qur’an has established this principle in many verses. Among these are the following: Allah says:

 

-         No soul will earn any wrong except against itself. No one shall bear the burden of another.

- Whoever does good, then it is for his own soul, and whoever does wrong then it is against it.

- Man has nothing except what he strives for.

- Whoever does wrong will be recompensed for it.

- Every soul is mortgaged against what it earns.

The fourth principle is that the penal code is universally applicable. The Islamic penal code – like other Islamic institutions – is equally applicable to everyone, without discrimination, regardless of social status. The Qur’ân has established the principle of universal equality in the following verse:

O mankind, We have created you from a male and a female and made you into nations and tribes so you can come to know one another. Verily, the most noble of you with Allah is the most righteous.

Allah’s Messenger (peace be upon him) has clearly illustrated the principle of equality in carrying out punishments when a woman from the Makhzûm clan – one of the noblest clans within the tribe of Quraysh – committed theft. The people of Quraysh interceded to have her acquitted, but Allah’s Messenger (peace be upon him) said:

O people, those who came before you came to ruin only because they used to pardon their nobility when they stole and would carry out the punishment on the weak. By Allah, if Fatimah, the daughter of Muhammad, committed theft, I would cut off her hand.

The fifth principle is that a punishment is not to be carried out in the face of doubt. This means that the judge cannot rule to have the punishment carried out upon the accused whenever there is doubt as to whether or not the crime has been committed, or whether or not there is a legal justification making it excusable.

This principle is intrinsically related to the maxim observed by the Divine Law in both civil and criminal cases: that innocence and freedom from accountability is to be assumed unless proven otherwise. Allah’s Messenger (peace be upon him) made this clear when he said: “Do not carry out the prescribed punishments when there is doubt.”

Distinguishing Features of the Islamic Penal System

In the aforementioned principles, Islamic Law and contemporary law coincide, though Islamic Law has the distinction of being first. However, the Islamic penal system also has unique virtues and distinguishing features, among the most important of which are the following:

1. The inner deterrent of man’s moral conscience is fully integrated with external supervision. This is due to the fact that Islamic Law, when dealing with social problems such as crime, does not rely merely on legislation and external deterrents. It focuses more on the internal deterrent, placing the greatest emphasis on man’s moral conscience. It endeavors to develop this conscience within a person from childhood so that he can be brought up with the noblest moral character.

It promises success and salvation for those who work righteousness and warns wrongdoers of an evil fate. In this way, it stirs up emotions, making a criminal renounce his ways by inspiring him with faith in Allah, hope for divine mercy, fear of divine punishment, adherence to moral virtues, love for others, and a desire to do good to others and refrain from causing injury and harm.

2. It has a balanced outlook with respect to the relationship between the individual and society. This becomes clear from the fact that while the Divine Law protects society by legislating punishments and preventative measures against crimes, it does not marginalize the individual for the sake of society. On the contrary, its priority is the protection of the individual, his freedom, and his rights. It provides every safeguard to leave no excuse for a person to have to resort to crime. It does not set out to punishm without first preparing for the individual a situation conducive to a virtuous and happy life.

Motives for Murder and the Islamic Solution

In most cases, murder is motivated either by causes stemming from economic factors or causes stemming from the violation of a person’s reputation or honor.

As for the economic reasons for murder, Islam has addressed them in the following way:

1. It calls towards empowering individual efforts in the realm of working, manufacturing, and developing the Earth. It considers this one aspect of making man the vicegerent on Earth, a status defined by the Qur’ân in many places as being one of man’s basic responsibilities. Allah says:

- Remember when Allah said to the angels: “Verily, I am placing a vicegerent on the Earth.”

- He is the one who made you vicegerents on the Earth.”

In this way, Islam removes every material and ideological impediment that might prevent man from working.

2. It holds the political leaders responsible for preserving social equilibrium and realizing social justice. A situation must not surface where excessive wealth exists alongside wretched poverty. Islam facilitates this by prohibiting the concentration of wealth in the hands of the very few. Allah says, regarding Zakâh:

…so it (wealth) will not be circulated between the wealthy among you.

3. It prohibits usury and monopoly. These are two means by which capital is unduly concentrated in the fewest of hands, which is in turn the principle reason for the loss of social equilibrium.

4. Islam has established an alms tax known as Zakât and made it a religious obligation. It is a specific percentage taken from the wealthy – they pay it themselves due to their faith – and then redistributed among the poor.

5. Islam provides a system of inheritance that fragments accumulated wealth with the passing of every generation, distributing it among relatives in a very detailed and precise manner.

6. Islam provides the principle of social security for those who are incapable of earning for themselves.

7. It makes the state responsible for providing opportunities for work. Islam considers this to be one aspect of its general responsibility to promote the general welfare.

8. Added to all of this, Islam has the greatest concern for the conscience and emotional state of the individual. It develops the individual from childhood to have faith in Allah and to rely upon Him. It teaches him the value of integrity, modesty, decency, love for others, cooperation, and participation in society. In this way, it destroys the seeds of hatred and resentment before they can take root in the heart. Allah says:

- ...those who respect their trusts and covenants.

- Cooperate with each other in doing righteous deeds and in fearing Allah.

As for the motivess for murder connected with honor and reputation, Islam has legislated the following to remedy them:

1. It develops the individual to be accustomed to controlling his or her impulses and having command over his or her desires. He learns to only fulfill his desires within permissible limits. Allah says:

Hasten towards forgiveness from your Lord and gardens beneath which rivers flow, prepared for the God-fearing who spend in prosperity and hardship, suppress their anger, and pardon others.

2. Islamic Law includes procedures that restrain these reasons by providing preventative measures against adultery (and that will be dealt with later). Because of these procedures, the punishment for murder becomes just and logical, since its causes become limited to pure aggression. It is necessary to restrain such aggression so that society will not be exposed to division and corruption.

The Causes of Theft and Their Islamic Remedy

The only reasonable causes for theft are hunger, the inability to earn, and disruption in the economy. There are other reasons as well, of a more psychological nature.

What has been mentioned in the previous paragraphs about the Islamic remedy for the absence of social equilibrium and the precautionary measures it takes in this regard are all relevant for the issue of theft. In spite of all these precautions, if a person is found stealing out of hunger or to fulfill his basic needs, then no punishment is meted out to him. Allah’s Messenger (peace be upon him) said: “Do not carry out the prescribed punishments when there is doubt.”

The Causes of Fornication and Adultery and Their Islamic Remedy

The causes for fornication and adultery can all be referred back to the power of the sexual urge and to defects in the social order that make marriage difficult, place impediments in its way, and promote the dissolution of moral values. Islam has taken many precautionary measures to remedy this problem and prevent fornication and adultery, among which are the following:

1. Islam permits marriage, encourages it, and makes the process of marriage very simple. Allah’s Messenger (peace be upon him) has said: “O assembly of young men, those of you who find the means to do so should get married.” He also said: “If a man whose religion and fidelity are pleasing to you approaches you for marriage (from your family), then get him married. Otherwise, there will be a lot of turmoil and corruption on Earth.”

Allah calls society to get its single members married. Allah says:

Get those among you who are single married as well as the suitable ones among your male and female slaves. If they be poor, Allah will enrich them out of His bounty.

The command to get people married includes giving financial assistance to those whose incomes are insufficient to cover the requirements of marriage due to high dowries or for other reasons.

2. Islam develops the individual from childhood with values such as God-consciousness, chastity, and humility, ingraining in the psyche a moral impetus that effectively prevents the individual from committing forbidden acts. Allah says:

Those who do not find the means to marry should abstain until Allah enriches them out of His grace.

3. Islam establishes society on the basis of virtue, moral values, decency, modest dress, and avoiding licentiousness in all public forums including the media. It forbids everything that excites sexual desire or promotes licentiousness in society. Allah says:

- Verily, those who like to promote sexual immorality among the believers, they will have a painful punishment.”

- Tell the believing men to lower their gazes and protect their private parts (from illegal sexual acts).”

- Tell the believing women to lower their gazes and protect their private parts (from illegal sexual acts) and not reveal their adornments save for their outer garments.”

4. Islam encourages young men and women to busy themselves with things that vent off their sexual powers, like study, sports, and public service.

5. Islam also promotes frequent fasting for those who are unable to get married. Allah’s Messenger said: “O assembly of young men, those of you who find the means to do so should get married, and if one is not able to do so, then he should fast.”

6. It calls society to return to the aforementioned Islamic values whenever it begins to deviate from them, whether this is related to its placing obstacles in the way of marriage or its neglecting the moral values that protect and safeguard society from falling into vice and depravity, or its abandoning its responsibility to assist those who are unable to get married, or due to its weakness in its developing and educating its members spiritually. Society, in every instance, is called upon to return to guidance and to the Lord. For this reason, the Sacred Law requires society to command what is good and forbid what is wrong. Allah says:

Let there arise a group of people from among you who call to righteousness, command what is good, and forbid what is wrong.

7. Islam has prescribed divorce to deal with situations where one of the two spouses loathes the other or cannot have his or her sexual needs fulfilled. This is so that person may find love, affection, and fulfillment with someone else. Allah says:

If they separate, Allah will enrich each from His abundance.

The Causes for Taking Intoxicants and the Islamic Remedy

The use of narcotics, including alcohol, is one of the most dangerous societal ills. It affects the health of the individual, causing disease. It affects the mind, taking away the individual’s mental powers and making him accustomed to running away from his problems. It affects his finances as well, due to the expenditure that his generally expensive habit forces upon him.

The harm also extends to the family and society at large. This can be clearly seen in every society where this evil practice has become the norm. Due to these harmful effects, Islam has forbidden the use of these substances and has prescribed a specific punishment upon the user. It has also remedied the causes of this malady.

The social causes for drinking and drug use can generally be traced back to the loss of social equilibrium. This tends to lead two distinct groups of people to substance abuse:

A. The first are those people who are taken to luxurious living and opulence. The pleasure-seeker, on account of his free time, boredom, and jaded tastes, turns to intoxicants looking for something that will spice up his life and give him pleasure and vitality.

B. The second group is the deprived. They use intoxicants to escape from the harsh and wearisome realities of a daily life filled with pain.

Islam has remedied these causes in the following way:

1. Islam calls to restoring social equilibrium whenever it becomes imbalanced, so that wealth, economic activity, and the means of production do not become hoarded up by a small group of people, and so that wealth is not passed exclusively among the affluent.

2. Islam connects the believer’s heart to Allah, making it constantly in touch with Him, so he does not live his life overwhelmed by anxieties. Allah says:

Whoever fears Allah, Allah will make for him a way out; and He will provide for him in ways that he could never imagine; and whoever relies upon Allah, then He will be sufficient for him. Verily, Allah will accomplish his affair.

3. Working and struggling to earn a livelihood counts as a form of worship that earns blessings for the one who engages in it as long as his heart is in touch with Allah and his intention is sincere. Being aware of this earns for the heart trust in Allah, pleasure in worship, and a high spiritual awareness because he can feel the love of Allah. As Allah says: “Allah is with you.”

4. Islam develops the individual to confront his problems and not run away from them. It also inculcates within him reliance upon Allah when undertaking to confront them and faith that whatever befalls him would never have passed him by and whatever passes him by would never have befallen him. Allah says:

Say (O Muhammad): “Nothing will ever befall us save what Allah has written for us.”

Islam conditions the individual to rely upon Allah and to be aware of the fact that Allah will never leave him to face his problems alone; quite the contrary, he is enveloped by the divine providence and care granted to the believers. Allah says:

Allah is with you, and He will never decrease the reward of your good deeds.

Islam develops within the individual the concept that his efforts will never go to waste, for whatever he earns in this world, he will also realize it in the next, and even when he does not realize the fruits of his effort in this world, he will definitely realize them in the next. Allah says:

 

-         Those will be given their reward twice because of their patience.

- Verily, Allah is the Provider, possessing great power.

Faith causes the believer to be steadfast and patient in solving his problems, not to try to run away from them by any possible means. So, whoever holds these values and believes in them will be unlikely to resort to alcohol and other drugs in order to avoid his problems and escape from reality.

Islam prohibited wine in stages. When Islam first confronted the use of wine in Arab society, wine use was deeply ingrained in their culture. Islam, consequently, chose to approach the issue gradually and wisely. In the beginning, it called the people's attention to the harmful effects of wine that far surpass its benefits. Allah says:

They ask you (O Muhammad) about wine and gambling. Say: “They both cause harm and benefit, but their harm is greater than their benefit.”

In the next stage, use of wine was prohibited before the times of prayer to insure that no prayer time would arrive without everyone being completely sober. Allah says:

O you who believe, do not approach prayer while you are intoxicated, until you are able to know what you are saying.

The absolute prohibition of wine came after the people were prepared for its prohibition so much so that they began to look for the day that it would be completely prohibited, saying: “O Allah, give us a clear decision about wine.” Allah says:

 

O you who believe, verily wine, gambling, idols, and divination are but the abominations of Satan’s handiwork, so abandon these things that perchance you will be successful. Satan only wishes to cause enmity and hatred between you through wine and gambling and to prevent you from the remembrance of Allah and prayer. Will you not then desist?

Due to this gradual nature of the prohibition, they found no difficulty in obeying the verse prohibiting wine. On the contrary, they poured the wine into the streets of Madinah so much so that the streets were flowing with it. From this point on, avoidance of alcohol became embedded in the social customs of the Muslims.

In spite of the deviation found in contemporary Muslim societies and the varying degrees of estrangement from Islam found within them, we find that the use of alcohol remains low in comparison to its widespread use in other societies. This is because wine is looked upon with an attitude of aversion that has been deeply ingrained in the social customs of Muslim societies. This is the distinctive feature of Islam whereby it tackles social problems with a dual approach: employing both the inner pressure of a conscience inspired by faith as well as the external pressure of supervision that comes both by way of public opinion and by way of punishments carried out by the state.

The Causes of Apostasy and the Islamic Remedy

In most cases, apostasy stems from the onset of doubt in the belief of the apostate. Islam has remedied this problem in the following manner:

1. Islam, from the onset, has never compelled anyone to accept it as his or her religion. It should be safe to assume that the individual – as long as he or she is not being confronted with any material or spiritual coercion – will never accept Islam except on account of conviction. Allah says:

- There is no compulsion in faith.

- So would you (O Muhammad) then compel people to become believers?

2. Islam encourages the development of the faculty of reason, expanding its horizons to contemplate on the signs within the person’s body and the signs in the surrounding environment. It encourages researching and contemplating the Qur’ân as well as history. Allah says:

- In the Earth are signs for those who are certain, and in themselves (as well). Will they not then see?”

- Say (O Muhammad): “Behold all that is in the heavens and the Earth.”

- Say (O Muhammad): ‘Travel in the land and see how He originated Creation.”

- Have they not pondered the word?

- Do they not ponder the Qur’ân?

- Say (O Muhammad): “Travel in the land and see what was the end of those before you. Most of them were polytheists.”

- Have they not traveled through the land, and have they not hearts wherewith to understand and ears wherewith to hear?

Thus, Islam requires that conviction be built upon the results of deep investigation and contemplation into Creation, including oneself, and into life and history, as well as the Qur’ân. From this, the precision in the governance of the universe and the wonder of its creation will be revealed, as well as how this requires that Allah alone must possess divinity. In this way, conviction in Islam becomes established on the basis of these clear and obvious conclusions. This establishes the believer’s faith on the basis of evidence as opposed to blind following, and on the basis of sound arguments as opposed to conjecture.

3. Islam grants the individual an opportunity to repent. In this fixed period of time, he has the opportunity to present and freely discuss his problem so that his misconceptions can be removed and the issues that give him doubt can be clarified by rational proofs and tangible evidence. If he returns to faith – even if only with his tongue – his life will remain inviolable and his rights and honor will be upheld.

Highway Robbery and the Islamic Remedy

As for highway robbery, it is roughly a composite of all the previously mentioned crimes. Its causes are generally the same as the causes for those other crimes. The measures that Islam takes to remove those crimes and to prevent them from developing in the first place are also applicable to preventing highway robbery and keeping it in check.

This is how Islam confronts the problem of crime, stopping it in its infancy, or moreover, destroying the root causes for the crime, giving it no opportunity to develop and no suitable place to proliferate. In this way, Islam safeguards society and gives full consideration to the individual, remedying his corruptive tendencies by assuring him his rights, solving his problems, and removing the seeds of criminal behavior from his psyche. Consequently, crime is reduced to the lowest possible extent, and both the individual and society at large thrive in peace and security.

Forms of Punishment in Islam

Islamic Law, in confronting the problems of life and setting down solutions for them, is established on two complimentary principles. These are: the stability and permanence of its basic tenets on the one hand and the dynamism of its subsidiary injunctions on the other.

For the unchanging aspects of life, Islamic Law brings fixed statutes. For the dynamic aspects of life that are affected by social development, broadening horizons, and advances in knowledge, Islamic Law comes with general principles and universal rules capable of being applied in a number of different ways and in a variety of circumstances.

When we apply these principles to the penal system, we find that Islamic Law has come with clear texts prescribing fixed punishments for those crimes that no society is free of, crimes that do not vary in their forms because they are connected with the constant and unchanging factors of human nature.

Islamic Law confronts other crimes by stating the general principle that decisively indicates their prohibition, leaving the punishment to be decided by the proper political authority in society. 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. In accordance with this principle, punishments in Islamic Law are of three types:

1. Prescribed punishments

2. Retribution

3. Discretionary punishments

Crimes that fall under this category can be defined as legally prohibited acts that Allah forcibly prevents by way of fixed, predetermined punishments, the execution of which is considered the right of Allah.

These punishments have certain peculiarities that set them apart from others. Among these are the following:

1. These punishments can neither be increased nor decreased.

2. These punishments cannot be waived by the judge, the political authority, or the victim after their associated crimes have been brought to the attention of the governing body. Before these crimes are brought before the state, it may be possible for the victim to pardon the criminal if the damage done was only personal.

3. These punishments are the ‘right of Allah’, meaning that the legal right involved is of a general nature where the greater welfare of society is considered.

The following crimes fall under the jurisdiction of the fixed punishments:

1. Theft

Theft is defined as covertly taking the wealth of another party from its secure location with the intention of taking possession of it.

There are conditions that must be met before an act of theft mandates carrying out the prescribed, fixed punishment. They are:

i. The stolen property must be completely taken into the thief’s possession after being removed from the victim’s possession from a place where such property is generally secured.

ii. The stolen property must be movable.

iii. The stolen property must have an appraisable value. This entails the following:

a. The value of the stolen property must not be negated by being a substance whose use is prohibited by Islamic Law, such as wine and other forbidden things.

b. The stolen item must be among the things that people generally ascribe value to in their dealings with others, and it should not be among the things that people customarily overlook. If these conditions are met in the absence of any doubt that would prevent carrying out the punishment, it becomes mandatory to cut off the hand of the thief from the wrist joint. This is based on Allah’s words:

The thieves, male and female, cut off their hands.

2. Highway Robbery

Highway robbery is defined as the activity of an individual or a group of individuals who go out in strength into the public thoroughfare with the intention of preventing passage or with the intention of seizing the property of passers-by or otherwise inflicting upon them bodily harm. The evidence for the prescribed punishment for this crime is to be found in the following words of Allah: 

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. This is a disgrace for them in this world, and in the Hereafter they will have a great punishment, except for those who repent before you take hold of them. Then know that Allah is the Forgiving, the Merciful.

This verse has given a clear indication of many punishments to give a number of prescriptions for various manifestations of this crime. Each manifestation of this crime is fixed with its appropriate punishment.

In the case where the criminal repents and abstains from perpetrating this crime before being taken into custody, then the fixed punishment of highway robbery no longer applies to him, as clearly indicated by the previously mentioned verse. At the same time, he is still liable for any infringements that he may have made against the lives or property of others.

3. Fornication and Adultery

This is defined as any case where a man has coitus with a woman who is unlawful to him. Any relationship between a man and a woman that does not contain coitus does not fall under this category and does not mandate the prescribed, fixed punishment.

The prescribed punishment is different depending on the marital status of the perpetrator. A single person who has never been previously married receives one hundred lashes as stated by Allah:

The fornicatress and the fornicator, give each of them one hundred lashes.

If the person is married or has previously been married, then the punishment is stoning until death. This punishment has been established by a number of hadîth of the Prophet Muhammad (peace be upon him).

The following conditions must be met before either of these two punishments can be carried out:

1. Four trustworthy witnesses must give testimony that they have witnessed the act take place with absolute certainty. They must be in complete agreement about all the details of the act, and about its place, time, and circumstances. If their stories do not coincide, their testimony will be considered false. In this case, instead of the punishment for fornication being carried out on the accused, the prescribed punishment for bearing false witness will be carried out against the witnesses. Allah says:

- Why did they not produce four witnesses? Since they did not produce witnesses, then with Allah they are the liars.

- Those who accuse chaste women then do not come with four witnesses, flog them eighty lashes and never accept their testimony. They are the sinful ones.

It is obvious that the one who commits fornication in the plain sight of four witnesses whereby they can see every detail of his crime is a person who is flagrant in his behavior, who has little regard for religion or for social values, and if he is married, has little regard for his relationship with his wife.

This person fully deserves a severe punishment. At the same time, it must be known that there is no documented case in Muslim history – to the extent of our knowledge – where the prescribed punishment for fornication was carried out on the testimony of witnesses. In most cases, this punishment was carried out at the wish of the perpetrator in order that he may purify himself of the sin and as a means of repentance.

2. There must be no cause for doubt that can make the punishment fall away. If any doubt is present, or any way out is found for the accused, the punishment is not to be carried out, because Allah’s Messenger (peace be upon him) said: “Do not carry out the prescribed punishments when there is doubt.”

Some things should be made clear at this point. The first is that if a person becomes weak and falls into this sin, it is preferable for him to conceal it from others and not speak about it or admit to it. Instead, he should repent, seek Allah’s forgiveness, and try to make up for it by doing righteous deeds. He should not despair of Allah’s mercy.

This is because Allah’s Messenger has said: “Whoever comes with one of these filthy acts should conceal it as Allah has concealed it.”

Allah says:

- Those who, if they commit an indecency or wrong themselves, remember Allah and seek His forgiveness – and whoever forgives save Allah? – and do not persist in committing it, their reward is forgiveness from their Lord and gardens beneath which rivers flow.

- O my servants who have transgressed against themselves, do not despair of Allah’s mercy. Verily, Allah forgives all sins.

It should also be observed that, likewise, if someone is to see another Muslim commit this act, then he should conceal it from the public. Allah’s Messenger has said: “Whoever conceals the fault of a Muslim, Allah will conceal his fault.”

It must also be noted that Islam has made the home completely inviolable. It is not permissible to enter someone else’s home except with the permission of its occupants. Spying is likewise prohibited. Allah says:

O you who believe, do not enter homes other than your own until you have asked permission and greeted their inhabitants. This is better for you, in order that you may remember.

 

Also, if a person confesses to this sin of his own accord, it is necessary to determine if he is of sound mind and in possession of all of his faculties. It must also be certain that he is under no compulsion or coercion.

Beyond that, he is afforded the opportunity to retract his confession and he is encouraged to do so. If he retracts his statement, the prescribed punishment will not be carried out. This is what Allah’s Messenger (peace be upon him) did with Mâ`iz when he confessed to committing adultery. Allah’s Messenger (peace be upon him) turned away from him many times while he repeatedly said: “I have committed adultery, so purify me.” Allah’s Messenger (peace be upon him) only turned his face away.

Then he said: “Maybe you only kissed” and: “Maybe you were drinking.” In spite of this the man was insistent. Then, when the people were going to administer the punishment, he denied everything and fled. They informed Allah’s Messenger (peace be upon him) of this and he said: “Why not leave him to repent so Allah can forgive him.”

The wisdom behind the prescribed punishment for fornication and adultery

If we look at all the punishments prescribed by Islamic Law, we see that they all have two inseparable qualities:

A. Excessive recourse to caution for the benefit of the accused and the large number of provisions that must be met before a punishment can be carried out.

B. The harshness and severity of the punishments.

This guarantees two things. First of all, it preserves the general security of society and reduces crime, due to the harshness of the punishments. The potential murderer who knows he will be killed, the potential thief who knows he will have his hand cut off, and the potential sexual offender who knows that he will be stoned or given a hundred lashes will think twice before going out and committing the crime. If, on the other hand, he knows that he will only be imprisoned for a few months or a few years, then he might not pay heed to the punishment and might not be discouraged from committing the crime.

Secondly, it safeguards the life of the accused and guarantees him that no punishment will be carried out until every excuse is exhausted and every reason for discarding the punishment is looked into.

If we look at fornication and adultery, we see that it is dealt with in this manner. The condition for establishing it – four reliable witnesses – is a very strict one, and the punishment is decisive.

If we look at the application of this punishment, we find many aspects of the wisdom behind it:

1. It preserves general peace and security, because one of the most important motives for murder is the violation of someone’s honor. Applying the punishment against fornication causes a decrease in one of the major causes of violating people’s honor, which in turn, reduces the frequency of murder. This has a direct, positive effect on public safety.

2. It protects the family. The family enjoys a special esteem in Islam. The widespread practice of extramarital sex is destructive to the family, undermines its integrity, and destabilizes the relationships between its members. The severe punishment for fornication and adultery has the effect of reducing its occurrence, which has a direct, positive effect on the family in two ways. Firstly, the family of the one who commits adultery share in the experience of his punishment, so they are discouraged from committing the act themselves, which brings stability to the family. Likewise, the family who had been harmed by the act of adultery benefits by the reduced opportunity for this crime afforded by this punishment, so its stability is increased.

4. False Accusation

This is defined as accusing the chaste, innocent person of fornication or adultery. It also includes denying the lineage of a person from his father (which implies that his parents committed fornication of adultery). False accusation includes any claim of fornication or adultery that is not backed up by a proof acceptable to Islamic Law.

The prescribed punishment for false accusation is given in the following verse of the Qur’ân:

Those who accuse chaste women then do not come with four witnesses, flog them eighty lashes and never accept their testimony. They are the sinful ones.

The verse prescribes two punishments. The first is eighty lashes. The second is that their testimony will never again be accepted. These two punishments are above and beyond the punishment that they will receive in the Hereafter if they do not repent. These punishments were prescribed to safeguard the reputations of people from being stained by those who have nothing to do except destroy others by circulating damaging rumors.

In order to safeguard honor and reputation, Islam came with two complementary solutions:

A. It inspires the motivational power of faith and the deterrent of moral conscience in its prohibition of backbiting, spying, and suspicion of others. Allah says:

O you who believe, avoid a lot of suspicion, for verily some suspicion is sinful, do not spy, and do not backbite one another.

B. It legislates a fixed, prescribed punishment for false accusation. So whoever is not deterred by faith and fear of Allah will be deterred by the punishment.

Drinking

One of the most important objectives of Islam is the realization of human welfare and the avoidance of what is harmful. Because of this, it “permits good things and prohibits harmful things.” Islam, thus, protects the lives of people as well as their rational faculties, wealth, and reputations. The prohibition of wine and the punishment for drinking it are among the laws that clearly show Islam’s concern for these matters, because wine is destructive of all the universal needs, having the potential to destroy life, wealth, intellect, reputation, and religion.

It may seem, at first glance, that drinking is damaging only to the intellect. In truth, it is equally destructive to life, wealth, reputation, and religion. This is because the habitual drinker becomes enslaved to his base desires, unable to entertain a higher thought or a noble purpose. In this way, his emotional sentiments are extinguished and his religious sensitivities are dulled so that they might never be revived. It is destructive of life. It causes incurable, fatal illnesses, above and beyond the damage it causes by provoking all sorts of conflict.

If we consider the losses incurred by the accidents, absenteeism in the workplace, unnecessary expenditure, and the treatments for the illnesses that it causes, we can see that it places great financial demands on the state. It removes from the human being that singular human quality of reason, by which man subjugates to his benefit everything in the Earth, and by removing this faculty, it makes him more akin to the beasts.

It weakens the value of social bonds, causing enmity and hatred between people, especially if we consider the words and actions that the drinker often directs at others.

These problems are the cause of a lot of harm and detriment. Therefore, Islam has decisively forbidden the use of wine.

Allah says:

O you who believe! Verily wine, gambling, idols, and divination are but the abominations of Satan’s handiwork, so abandon these things that perchance you will be successful. Satan only wishes to cause enmity and hatred between you through wine and gambling and to prevent you from the remembrance of Allah and prayer. Will you not then desist?

Since wine causes all of this material and spiritual harm, Islamic Law has imposed upon the drinker a fixed punishment.

6. Apostasy Apostasy is defined as a Muslim making a statement or performing an action that takes him out of the fold of Islam. The punishment prescribed for it in the Sunnah is execution, and it came as a remedy for a problem that existed at the time of the Prophet (peace be upon him). This problem was that a group of people would publicly enter into Islam together then leave Islam together in order to cause doubt and uncertainty in the hearts of the believers. The Qur’ân relates this event to us:

A group from the People of the Scripture said: ‘Believe in what came down upon those who believe at the beginning of the day, then disbelieve at the end of the day, so perhaps they might return from faith.

Thus, the prescribed punishment for apostasy was instituted so that apostasy could not be used as a means of causing doubt in Islam.

At the same time, the apostate is given time to repent, so if he has a misconception or is in doubt about something, then his cause of doubt can be removed and the truth clarified to him. He is encouraged to repent for three days.

2. Retribution

This is the second type of punishment in Islamic Law. This is where the perpetrator of the crime is punished with the same injury that he caused to the victim. If the criminal killed the victim, then he is killed. If he cut off 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.

Important Rules Regarding Retribution

1. Retribution is not lawful except where the killing or injury was done deliberately. There is no retribution for accidentally killing or injuring someone. Allah says:

- O you who believe, retribution is prescribed for you in the case of murder.

- There is retribution in wounds.

2. In the crimes where the criminal directly transgresses against another, Islam has given the wish of the victim or his family an important role in deciding whether or not the punishment should be carried out. Islam permits the victim to pardon the perpetrator, because the punishment in these crimes is considered the right of the victim. Islam even encourages pardon, promising a reward in the hereafter for the one who does. Allah says:

If anyone waives the right to retaliation out of charity, it shall be expiation for him.

The pardon can either be to the payment of blood money, a fixed, monetary compensation, or can be total, where no worldly compensation is demanded. Allah says:

To forgive it is closer to piety.

3. The punishment must be carried out by the government. The family of the victim cannot carry it out.

The wisdom behind retribution:

With regard to Islamic punishments in general, and retribution in specific, we find that they have two complementary characteristics. The first of these is the severity of the punishment. This is in order to discourage the crime and limit its occurrence.

The second characteristic is the difficulty of establishing guilt, reducing the opportunities for carrying out the punishment, and protecting the accused. In this vein, we see the principle that punishments are waived in the presence of doubt, and that the benefit of the doubt is always given to the accused. Some prescribed punishments are even waived on the grounds of repentance, as we can see in the case of highway robbery. This is also seen in the permissibility of pardon in the case of retribution and the fact that pardon is encouraged and preferred.

These two elements complement each other in that crime is effectively discouraged, protecting society, and the rights of the accused are safeguarded by the fact that speculation and accusations cannot be grounds for punishment, and that the accused enjoys the greatest guarantee of justice and being spared the punishment whenever possible. Most people will abstain from committing crime, because of the severity of the punishment, and the punishments for these crimes will rarely be carried out. In this way, the general security of society and the rights of the individual are equally realized.

3. Discretionary Punishments

These are punishments that are not fixed by Islamic Law, for crimes that either infringe on the rights of Allah or the rights of an individual, but do not have a fixed punishment or a set expiation.

Discretionary punishments are the broadest category of punishments, because the crimes that have fixed punishments are few in number and all other crimes fall under the scope of this last category.

They are the most flexible type of punishment, because they take into consideration the needs of society and changing social conditions. Consequently, they are flexible enough to realize the maximum general benefit to society, effectively reform the criminal, and reduce the harm that he causes.

Islamic Law has defined different types of discretionary punishments starting from exhortations and reprimands to flogging, to fines, and to imprisonment. These discretionary measures are left to the decision of the legal authorities within the general framework of Islamic Law and the universal purposes of Islam that balance between the right of society to be protected from crime and the right of the individual to have his freedoms protected.

The Objectives of the Islamic Penal System

The Islamic penal system has many objectives, the most important of which are as follows:

The First Objective: Islam seeks to protect society from the dangers of crime. It is common knowledge that if crimes are not countered with serious punishments, then society will be in grave danger. Islam seeks to make social stability and security widespread, making life in society secure and peaceful. It has made this consideration a platform for action, legislating punishments that will discourage crime. This purpose has been articulated by the following verse that discusses retribution and its effects on society:

There is (preservation of) life for you in retribution, O people of understanding, so perhaps you may become pious.

The murderer, or any other criminal for that matter, if he knows the extent of the negative consequences for himself that his crime will cause, he will think a thousand times before committing it. Awareness of the punishment will, in two ways, cause the criminal to abstain from committing the crime. The criminal who has already been subject to the punishment will most likely not return to the crime again. As for the rest of society, their awareness of the effects of this punishment will keep them from falling into the crime. To realize a general effect from the punishment, Islam has established the principle of publicly announcing when it will be carried out. Allah says:

A group of the believers should witness the punishment.

The Second Objective: Islam seeks to reform the criminal. The Qur’ân often makes mention of repentance in association with the crimes that it deals with, making it clear that the door to repentance is open whenever the criminal abandons his crime and behaves properly. It has made repentance a means of waiving a fixed punishment in some instances, like the punishment for highway robbery. Allah says:

…except for those who repent before you take hold of them. Then know that Allah is the Forgiving, the Merciful.

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.

Allah says after mentioning the punishment for false accusation:

… except for those who repent afterwards and makes amends, then verily Allah is the Forgiving, the Merciful. Allah says after mentioning the prescribed punishment for theft:

Whoever repents after his wrongdoing and makes amends, then verily Allah will accept his repentance and verily Allah is the Forgiving, the Merciful.

This objective is seen more frequently with regard to discretionary punishments, whereby it is incumbent upon the judge to take into consideration the circumstances of the criminal and what will insure his betterment.

The Third Objective: The punishment is a recompense for the crime. It is undesirable to treat a criminal lightly who threatens the security of society with danger. The criminal should receive his just recompense as long as he is pleased with taking the path of evil instead of the path of righteousness. It is the right of society to be secure in its safety and the safety of its individual members. The Qur’ân has asserted this objective when mentioning a number of punishments. Allah says:

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