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
God 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
Quran in many places. God 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...” (Quran
57:25)
And He says:
“…God wants ease for you, not hardship...” (Quran 2:185)
And He says:
“God wants to make things clear for you and to guide you to the
ways of those before you and to forgive you. God is the All knowing, the
Wise. God wants to forgive you and wants those who follow their desires
to turn wholeheartedly towards (what is right). God wants to lighten your
burdens, and He has created man weak.” (Quran 4:26-28)
And He says:
“God commands justice, righteousness, and spending on ones
relatives, and prohibits licentiousness, wrongdoing, and injustice…” (Quran
16:90)
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 prescribes 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).
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, may the mercy and blessings of God be upon
him, in its complete form as part of His 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 God 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 Quran in many places. God 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...” (Quran
57:25)
And He says:
“…God wants ease for you, not hardship...” (Quran 2:185)
And He says:
“God wants to make things clear for you and to guide you to the
ways of those before you and to forgive you. God is the All knowing,
the Wise. God wants to forgive you and wants those who follow their
desires to turn wholeheartedly towards (what is right). God wants to
lighten your burdens, and He has created man weak.” (Quran 4:26-28)
And He says:
“God commands justice, righteousness, and spending on ones
relatives, and prohibits licentiousness, wrongdoing, and injustice…” (Quran
16:90)
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
prescribes 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).
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Crime and Punishment in Islam (part 2
of 5): Forms of Punishment in Islam
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   Description: A detailed discussion about the regulations Islam has set in regards to dealing with crime in society. Part 2: Distinguishing features of the Islamic penal system, and an introduction to the three forms of punishment which Islam has legislated for certain crimes. By The Editorial Team of Dr. Abdurrahman al-Muala (translated by islamtoday.com) Published on 08 Mar 2006 - Last modified on 08 Mar 2006 Viewed: 30520 (daily average: 14) - Rating: 2.8 out of 5 - Rated by: 15 Printed: 1014 - Emailed: 14 - Commented on: 0 Category: Articles > Systems in Islam > Crime and Punishment |
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 God, 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 punish without first
preparing for the individual a situation conducive to a virtuous and happy
life.
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
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Crime and Punishment in Islam (part 3
of 5): ‘Hudood’-Prescribed Punishments
|
 Description: A detailed discussion about the regulations Islam has set in regards to dealing with crime in society. Part 3: The first form of punishment – Prescribed punishments or ‘Hudood’, and the types of crimes for which it has been legislated, as well as the wisdom behind it. By The Editorial Team of Dr. Abdurrahman al-Muala (translated by islamtoday.com) Published on 08 Mar 2006 - Last modified on 04 Oct 2009 Viewed: 28626 (daily average: 13) - Rating: 2.2 out of 5 - Rated by: 6 Printed: 1058 - Emailed: 13 - Commented on: 0 Category: Articles > Systems in Islam > Crime and Punishment |
1.
Prescribed Punishments
Crimes that fall under
this category can be defined as legally prohibited acts that God forcibly
prevents by way of fixed, predetermined punishments, the execution of which
is considered the right of God.
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 God’, 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.
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.
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 is not inclusive of coitus does
not fall under this category and does not mandate the prescribed, fixed
punishment.
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.
5.
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.
God 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 God and prayer. Will you not then desist?”
(Quran 5:90-91)
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, may the mercy and blessings of God 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 Quran relates this event to us:
“A group from the People of the Scripture said: ‘Believe in what
is revealed to those who believe at the beginning of the day, then disbelieve
at the end of the day, so perhaps they might return from faith.” (Quran 3:72)
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.
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Crime and Punishment in Islam (part 4
of 5): Retribution and Discretionary Punishments
|
 Description: A detailed discussion about the regulations Islam has set in regards to dealing with crime in society. Part 4: The second and third types of punishments, retribution and discretionary punishments, the types of crimes for which they have been legislated, as well as the wisdom behind them. By The Editorial Team of Dr. Abdurrahman al-Muala (translated by islamtoday.com) Published on 08 Mar 2006 - Last modified on 14 Jun 2007 Viewed: 24896 (daily average: 11) - Rating: 2.9 out of 5 - Rated by: 9 Printed: 1163 - Emailed: 5 - Commented on: 0 Category: Articles > Systems in Islam > Crime and Punishment |
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. God says:
“O you who believe, retribution is prescribed for you in the
case of murder...” (Quran 2:178)
And He says:
“…There is retribution in wounds...” (Quran 5:45)
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. God says:
“If anyone waives the right to retaliation out of charity, it
shall be an expiation for him.” (Quran 5:45)
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. God says:
“To forgive it is closer to piety...” (Quran 2:237)
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 God 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.
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Crime and Punishment in Islam (part 5
of 5): The Objectives of the Islamic Penal System
|
 Description: A detailed discussion about the regulations Islam has set in regards to dealing with crime in society. Part 5: A discussion of what the legislation of these types of punishment seeks to bring about in a society. By The Editorial Team of Dr. Abdurrahman al-Muala (translated by islamtoday.com) Published on 08 Mar 2006 - Last modified on 19 Feb 2008 Viewed: 27458 (daily average: 12) - Rating: 3.3 out of 5 - Rated by: 20 Printed: 1028 - Emailed: 38 - Commented on: 0 Category: Articles > Systems in Islam > Crime and Punishment |
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, that you may become pious.” (Quran 2:179)
If the murderer, or
any other criminal for that matter, 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 cause the
criminal to abstain from committing the crime in two ways. 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. God says:
“…A group of the believers should witness the punishment.”
(Quran 24:2)
The Second Objective: Islam seeks to reform the criminal. The
Quran 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. God says:
“…except for those who repent before you take hold of
them. Then know that God is the Forgiving, the Merciful.” (Quran 5:34)
God says regarding the
punishment for fornication:
“It they both repent and mend their ways, then leave them
alone. Verily, God is the Accepter of repentance, the Merciful.” (Quran
4:16)
God says after
mentioning the punishment for false accusation:
“… except for those who repent afterwards and makes amends, then
verily God is the Forgiving, the Merciful.”
God says after
mentioning the prescribed punishment for theft:
“Whoever repents after his wrongdoing and makes amends, then
verily God will accept his repentance and verily God is the Forgiving, the
Merciful.” (Quran 5:39)
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 Quran has
asserted this objective when mentioning a number of punishments. God says:
“The thieves, male and female, cut off their hands as a
recompense for what they have earned...” (Quran 5:38)
“The recompense for those who wage violent transgression against
God 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…” (Quran 5:33)
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