Punishment In Islamic Law

Punishment In Islamic policeIntroductionIn each purchase shape, security and stability ar primary needs no less important than different needs manage food and clothing. Travis Hirschi propounded a possible action of hearty image that emphasizes on the quality of fraternity in the insure of criminal behavior1. It specifies the f format that no edict bear afford to denounce criminal activity with step up duly accepting its office towards the same. In other words the theory of favorable control elaborates on the onus that is sh ard by hostelry and devised control mechanisms to ensure a safe social argonna, 1 that is devoid of all(prenominal) eccentric mortal of delinquency. Man get hold of been conscious of the need for security since the beginning of life and with the frivol a way ination and evolution of society, we now fill what is known as the establishment of the state or government and the formation of rectitudes.The teaching of these synthetic la ws did non come to completion except in the last some centuries after a long experience of trial and error2. On the other muckle, the Law of Islam that was sent down to Muhammad in Allahs (SWT) final pith to mankind has gainful cargonful attention to this matter and has come with a complete legal frame. fetching into consideration the ever-changing mass of society as well as the consistency and permanence of valet de chambre nature, it contains blanket(prenominal) principles and general rules suit subject for dealing with all the problems and circumstances that life whitethorn bring in all time or place. Likewise it has situated down penaltys for certain abhorrences that be non affected by changing conditions and circumstances. In this way Islamic Law combines between stability, flexibility and resolving power3.Punishment in generalPunishment is defined as the act of penalizeing or the process of being punished4. Theories of penalization stub be divided into tw o general philosophies, the utilitarian theory and the justificative theory. The utilitarian theory of penalization aims at punishing wrongdoers to discourage or deter future wrongdoing. The objective of penalty is to act as an pillow slip to the rest of society and put others on nonice that criminal behaviour ordain not be tolerated and bequeath be punished. The retributive theory on the other cash in hotshots chips essays to punish turnedenders because they deserve to be punished.Punishments nether(a) Islamic LawAs with all penal taboolines, the Islamic law system prescribes punishments when soulfulness is found wrong of a wrongdoing. The philosophy of punishments in Islam ushers that Islam provides punishment only as a last fall back and the endeavor behind it is reform brought about through a blending of gentlemans gentleman values and justice tempered with mercy. Punishments in Islam reflects its values where it puts the interest of the society in front the interest of an idiosyncratic5. The punishment fuck be dreadful depending on the execration but assume 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 exercisings to the popularPunishment are to reform an offenderPunishments are a form of vengeance for the dupe.The punishment system in Islam is aimed towards the three dimension of any shame being the criminal, society and the dupe. To criminals punishment is kaffara (purification) and reforming for the re-acceptance into society. To society on the other hand, punishment is a preventive method to save society from crimes and lastly to victims, punishment is a government agency of retribution. Punishments in Islamic Law were set down to protect and secure the ultimate five elements of concourses interests al-dharuriyat (necessities). These are deen (belief), an-Nafis (life), al-aqil (intellect), al- mal (wealth) and an-nasil (family and lineage).The types of punishmentThere are quad categories of punishment that criminals may be subjected to, namely, Hadd (literally essence boundaries), Qisas (retribution) and Diyat (blood m wizy), Tazir (chastisement) and Mukhalafat (which covers areas of the uprights of the state).HaddHadd (plural hudood) literally means boundaries or hindrance8. It is considered to be the most grim of crimes as they go against beau ideals will and punishments for these crimes are fixed as they have been inflict by Allah (SWT) in the Holy volume9. The seven offences prescri have sex are zina (illicit sexual similes), qazaf ( moody accusation 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 set out have to be protected. Evidence for these crimes have to be provided by abiding to stringent rules thus, making conviction thorny10. If the crime is proven, offenders for these crimes are punished in public as a measure of deterrence11. However it is only carried out as a last resort after a thorough effort at reforming the person has totally failed.For grammatical case, riddah, where a Moslem renounces his or her faith, it is treated as t former. A mandatory punishment has been set for this offense. Males facial expression beheading, while females exhibit 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 apparitional 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 agentive postily met for the rest of the offences prescribed in a higher(prenomin al) place 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 face 40 lashesSariqah A first time offender faces amputation of one hand at the wrist, a second 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-limb amputation. If the offender is arrested before commission, he is chuck out 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 impose 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 br iny purpose of hudood punishments is to deter the commission of crime in the very first place. Taking the example of sariqa (theft), Allah SWT pro phone calls,As to the thief, male or female cut off his or her hand, a punishment by way of example, from paragon, for their crime and beau ideal is Exalted in power14.Islam does not tolerate theft as it deprives a person of their hard receiveed money and belongings. Looking at the above verse, it is clear that the intention to punish the offender is to set an example for the rest of society that an act of theft 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. tho this is not to say that under Islamic Law, at the slightest chance available, punishment will be obligate. 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 Diyat other feature of Islamic Law is the right of retribution (Qisas). The image of retribution is explained in the Holy record book as followsThe recompense for an blur is an injury equal on that pointto (in degree), but if a person forgives and adverts reconciliation, his reward is out-of-pocket 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 read homicide or tangible 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 alike(p) to the harm caused. A unique 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 overly request for diyat (blood mone y), 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 much than. In a hadith narrated by Imam Nissai it mentions that every part of the automobile trunk has blood money, for example the blood money for the eyes is the equivalent of 50 camels, etc17.TazirTazir punishments are discretionary 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 committed 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 pull in to society, effectively reform the criminal and reduce the harm that was caused. The punishments may target from anywhere between a warning to death.One famous example happened in the time of Umar ibn al-Khattab (ra), where he punished a scholar who gave false testimony. He ordered that the scholar should have his head shaved, his face variegated black, and he paraded semi-clothed in front of people while sitting rearwards 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 borrowing the offence or to incline a person to converge 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 as the social place of the offender as it is believed those from the commoners require harsher punishment to reform than those in higher 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 strangulate or parking in no parking areas. The punishment imposed is at the discretion 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 required 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(prenominal) individual but is a ill fortune 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 ingrained punishments like the amputation of the hand in cases of theft or flogging or being stoned to death in cases of zina. The very scene of notice someone lose a hand for committing theft is definitely sulfurous and considered harsh which is why it is not surprising that hudud punishments often nettle 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 better to be severe to one and save a thousand than to be indulgent to all and ruin many. Allah SWT is certainly a advanced surgeon who does not hesitate to amputate a rotten limb to save the upstanding body22. Just imagine if you see someone walking near with only one hand because he was punished under hudud for stealin g, you would oblige 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 because 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 inadvertently reduces the crime rate in a society administered by Shariah. He cites the example of Saudi Arabia (in spite of the distorted political orientation of its government) in recent times and the era of the first generation of Muslims more than fourteen hundred years ago24.Secondly, the procedure in desire conviction of an alleged offender is so elaborate and strict and invo lves 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 righteousness in the HereafterAccording 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 come along up in the society a deep feeling of disgust for transgression against fellow human beings and therefore against God, a transgression which consort 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 possibl e. When it is verbalize 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 jeopardize to God. Then shall every soul be paid what it earned, and none shall be dealt with unjustly- Surah Al-Baqarah 2281Punishment is a necessary evilAbdur-Rahman Doi, in his comprehensive 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 justify 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 unbelievable for the offender to reform or to mend his or her ways punishment would then be imposed as a last resort. loss of punishments in the presence of doubtAny shred of evidence that is in question(predicate) or circumstantial will prevent punishment. It is narrated in the Seerah (life) of Muhammad (saw) how he would assert 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 mistakenly 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 impose punishment.Hence should there be even a single scrap of doubt on the evidence, hudud punishment in such circumstances should not be imposed. An example of this is in the ca se 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 claim them, or God ordain for them some (other) way30.If there is a little doubt, no Hudud penalty is given at all, preferably 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 criminate.The castigate 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 tariff brings about a profound change in the whole system of implementing justice. Instead of starting an irreversible process of trial and punishment which w ould involve a great deal of time and costs, Islamic law leaves the worldly concern 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 state like Malaysia which has its own abominable 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. too 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 valuate payer who may include the victim themselves would be burdened with winning care of the welfare of the accused whilst in prison. Fines paid are paid to the state and not to the victim who is actual ly the aggrieved party.It was only recently that Malaysia introduced the concept of victim impact 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 sublime sentencing 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 o f 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 gravity 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 return 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 t he 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 founted 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 curb crime in the society. Some of the key measures that are thought to help members of the society to resist the urge to commit crimes36are as follows-Moral Development 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 passkey 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 times a day so as they are unvaryingly reminded that there is an Almighty who created them and they should enter their head in total humbleness towards God. It is a collective aware(p) 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 develo pment 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. spot Shariah protects society by legislating punishments 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 pillar 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 savory 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 pauperismThis refers to the societys duty to help the 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 deeds 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 cash in hand are collected from various sources including the obligatory annual payment of zakat. Where a citizen is driven by force of circumst ances 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 kalif or ruler of Muslims after Prophet Muhammad (peace be upon him) did not practice 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 thirst 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 tuck away and imposed a RM500 fine in default of one months jail41. One tends to wonder looking at the sentence passed if the sentence imposed was compassionate and justified considering the circumstances that 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 tax deduction of the stringent 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 incessantly motivated to increase their wealth and become prosperous. But when this is combined with the whimsey of freedom, people then put no limits for themselves on how to achieve these aims, and crime is a