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Everybody seems to know what punishment means: Legal offenders are punished by the law. Children that don’t behave are eventually punished by their parents. Confronting natural disasters can sometimes be felt as a punishment. Apparently, the term is highly ambivalent. What exactly is punishment and how can it be related to a state’s criminal law? Several political scientists as well as law scholars have repeatedly tried to find a satisfying answer to this question. But none of the given answers that are to be found in legal literature comes up with all aspects that should be included.
Following a suggestion made by Hart and Primoratz, legal punishment can be analytical defined as an evil which is imposed on a criminal by a legal authority on purpose. This legal authority has to be authorized by a set of laws which were broken by the offender.12 The term “evil” stands for everything that is not desired by people – not just physical pain or theft and other actions usually defined as being criminal but also imprisonment or the negation of basic rights. An evil that is authorized and justified by the public such as imprisonment is the ultimate response to individually committed criminal action. In other words, evil answers evil.
Punitive theories explain why people feel they should punish or why others should be punished. Furthermore, they give reasons for legal action by the state or try to justify it. Emotion and justification almost go into each other. There is only a thin line that distinguishes emotion and the reasonable justification. As a result, putting punishment into an arbiter’s hand – usually the state - aims at a canalisation of emotion and at a moderate and balanced sanction.
One fundamental function of penalisation is the idea that it helps a community of men. Punishment holds a community of people together because they believe to agree on what is wrong and what is right. The act of punishment itself – a trial, followed by the execution of the judgement – seems to be a public celebration of common values. It was Emile Durkheim who advocated this thesis for the first time. He concludes that punishment has a religious origin, a mechanical solidarity among all members of a society which brings about the collective moral conscience.13
The problem with this interpretation is that it applies to archaic societies more than to modern ones. Larger and advanced societies with a rapid social transformation do have a pluralism of values and moral standards which make it harder for everybody to agree on a common standard. This would explain why moral values are more likely to be referred to in socially and religiously extremely homogeneous societies like the Arab world than in modern Western civilisations. In any case, the relationship between moral values and a legal order is complex and contradictory. It limits individual life styles and creates an atmosphere of restrain – elements often felt in the Muslim world.
One solution to the problem would be to demoralise the system of criminal laws. But however promising that may be, in the end it does not seem to be a feasible solution since a state’s legal action is almost always based on somewhat common standards that a community of men agrees upon and that are also rooted on moral ground. In other words, a system of criminal laws always needs to be morally justified, even if it is only the idea that murder or rape should deserve damnation. Admittedly, this connection is less evident in the Western legal system than in Islamic criminal law. Nevertheless, it is present in any legal system.
But the dilemma of a pluralism of values of a society on one side and a demoralisation of a criminal law on the other side can be solved. MacCormick suggests as a first step to view the state instead of a society as an agent that condemns by attributing values. Following this idea, one has to precisely say what the state should aim at. MacCormick puts forward four different models14:
The state enforces true morals
The state enforces positive morals
The state enforces everything that guarantees its existence
The state enforces a minimal moral standard
a) The first model is not feasible within a modern society that has many, often radically differing ideas on morals. Ideas concerning one’s personal life are usually very individual. Thus, a true moral standard would never meet the agreement of everybody. The state was never able to find a common moral standard. Therefore, true morals don’t exist.
b) Durkheim explicitly advocates the second model saying that actions are criminal if they hurt a community’s conviction. Punishment is therefore a publicly exercised wrath or a sentiment of vengeance. In that sense, punishment is a means of defence of a society. This theory helps to explain why certain actions are defined as being criminal even though they did not do any harm to the society. Briefly, the model puts forward the idea that not the true but the ruling moral conviction is enforced. The state’s task is to enforce a conviction of a majority of its members.
c) The third model makes the criminal law a tool to enforce the raison d’état. Any crime would automatically be defined as an offence against society. Strictly speaking, any crime is seen as an avalanche that threatens to eradicate a state’s existence. Those ideas are based upon fears of anarchy and chaos that justify an extremely harsh legal action taken against law offenders. This is typically to be found in Muslim countries that search to preserve their existence by any means and tolerate relatively few offences against the law. On the contrary, in modern societies only few crimes such as high treason are directly linked to the immediate existence of a state. That’s why they tend to be more liberal.15
d) The most promising approach to separate law and morals is the fourth one. The state limits its role as an arbiter and only penalizes moderately. Under punishment is everything that endangers the public’s security or threatens individual rights. This approach can do without any religious or vastly moral impact and does not enforce any ideal. It only focuses on the invulnerability of individual rights.
As a conclusion one can say that a specific set of moral attitudes are automatically part of any criminal law. In the course of time, Western criminal laws have aimed at limiting these moral standards to a minimum as much as possible in order to ensure a truly free society. Nevertheless, certain moral assumptions and attitudes are still part of the criminal law code and will always be.
In other countries those convictions have not yet made much progress. Especially in the Muslim world, both moral assumptions and a state’s legal action do have a strong connection and very often seem to be inseparable. Most countries lack a strong political stability. Therefore, they tend to prefer a mixture of the first three models suggested by MacCormick. The third model serves as a guarantee of a state’s existence. The first and in a less righteous society the second one aim at founding a certain sense of community in order to hold the often fragile societies together by the means of religion that interferes with state action on the basis of defining morals.
As a general introduction to this chapter one will need to acknowledge the following before looking at the details of a specific Islamic philosophical and sociological approach to penalisation: The most forceful part of the criticism often evoked is the West's denunciation of the harshness of the Hadd (fix punishments) that the Islamic criminal law prescribes. Obviously this stems from their conception of human dignity that evokes a high measure of pity if not even sympathy for law offenders.
For a moment, it seems, some of those Western sociologists forget the heinous deeds of the criminals, their impact on the society and that is why they prescribe lighter punishments. This illustrates at least the impression one gets in Islamic countries from the Western penal code. The kind of judgement advocated in the Western hemisphere might be called positive justice and is a product of the permanent interaction between expectations and existing conditions, aimed at a gradual improvement of human kind. 16
Contrary to it, Islamic societies presuppose that man is essentially weak and therefore incapable of rising above personal failings. Therefore, it imposes a rigid code of punishment for the microscopic minority of criminals and ensures an atmosphere of peace and security for the rest of the society. Broadly speaking, one could conclude that Westerners rather focus on the individual and do their best to ensure his rights even if he has offended the law. Muslims, on the other side, pay more attention to the general welfare and are rather ready to sacrifice an individual’s welfare on behalf of the community. In short, “Islamic penal laws were conceived in larger interests of society.” 17 If this basic difference is kept in mind while striking a comparison between the two, the whole matter can be understood easily.
Any Islamic legal scholar will agree that the purpose of punishment is not vengeance against the culprit. It rather aims at protecting society from the aggressions of legal offenders and to halt transgression and crime. It seeks to prevent further criminal acts and can also be understood as a warning against its repetition by others. In this sense, there is not much difference compared to Western systems of criminal law since both approaches aim at occupying a preventive as well as a curative role.
But in addition to those very general aims, Islam also sees punishment as a necessary requisite of divine justice and the Sharia “as the most prominent distillation of Islamic morals and law.”18 This has to do with the strong connection of religious and state affairs in the Muslim world. Any judicial proceeding operates on the ground of divine affirmation; justice is pronounced in the name of God. It is believed that all penalties following the accusation and trial of an offender to the law are measured with a divine balance of justice. Punishments are, therefore, harsh where necessary and lenient where appropriate. No matter how harsh the sentence may be, it is viewed as ultimately merciful.
The stated mercifulness in the eyes of the public can be described under various aspects. First of all, a punishment is seen as a remedy for offenders whether obedient or not. It is a mercy for the obedient since it protects him from the powers of evil, prevents disobedience, and saves him from the harm of the crime. Furthermore, an imposed penalty is also a mercy for the disobedient offender because it restrains him from the pursuit of crime and puts a stop to his criminal energy which could, otherwise, do even more harm. Following this stream of thoughts, it is not correct to identify punishment with some form of revenge against the culprit but rather as a reward for his action and a relief for both, the offender and the community. In addition to that, it also serves the betterment of the offender. Within this context, the punishment is not the aim but rather a measure taken in response to a genuine need.
Accusation, trial and punishment are key elements of justice. But when talking about justice, the religious sphere is once more inflicted: “Islam is a religion that believes it has a monopoly over truth and salvation. It is the only faith that divides the world into good and evil.”19 God is identified as representing and even being the highest justice possible. God is just in all He commands. The exercise of justice is therefore in His will.
Adding to that, the Islamic approach to criminal proceeding is, as above stated, the stand that man is weak and incapable of rising above his personal failings. Betterment can, therefore, only derive from God. A divine authority is invoked to provide the sources and basic principles of the public order. It commands respect and has a lasting impact on the administration of justice.
But justice cannot be achieved without the threat of punishment and its actual implementation. If an offender is left unpunished, it will harm the interests of society and break the divine will. Furthermore, it is an effective deterrent since it helps to prevent further acts of crime in that sense as people will know the severe consequences of any criminal action. This threat is usually sufficient to deter them from committing an act of crime and therefore it represents once more the will of God.
To conclude, one can state that the objective of the Islamic Sharia is the prevention of crime, the strife for a peaceful society and protecting the dignity of individual men. This is achieved by the means of cleansing the culprit’s life from all traces of criminal energy, by preventing him from lapsing back, and by threatening others to repeat any criminal act. Thus, punishment, however painful it may be, is in full agreement with the divine will and balanced reason. The pain it causes is seen as necessary to restore health and provide cure just as the pain caused by a surgeon’s knife also results in a final remedy.
Crime as defined in the Shariah consists is legal prohibitions imposed by Allah, whose infringement entails punishment prescribed by him. “Crime as defined in the Shariah is identical with Crime as defined in modern law”20.
In Islamic criminal laws every thing prohibited by God and his prophet is a Crime. Unlike in Western law where only that which has a specified punishment is a Crime, in Islamic law every crime is punishable but not every punishment is specified. The role of the State is to ensure that, in a person’s public conduct, he does not commit a crime or any act likely to lead to one. Islamic law does not empower the State to infringe on the right of an individual citizen. It cannot break into a man’s room and punish him for adultery. It cannot plant a camera in a hotel room and punish a man based on a recording of a sexual act or drinking spree. But if a man and a woman choose to have sex where four eye witnesses actually see coitus, or if a man chooses to drink his beer in front of his house instead of inside his living room, the act immediately leaves the realm of private conscience to one of public morals and the state punishes this severely. “Crime is an act or conduct whereby a person breaks the law and (ii) infringes upon the rights of others. In the religious parlance it is called “a sin”.21
The classic Sharia identified the most serious crimes as those mentioned in the Koran. “These were considered sins against Allah and carried mandatory punishments.”.22 These crimes and punishments are:
Adultery: death by stoning.
Highway robbery: execution; crucifixion; exile; imprisonment; or right hand and left foot cut off.
Theft: right hand cut off (second offence: left foot cut off; imprisonment for further offences).
Slander: 80 lashes
Drinking wine or any other intoxicant.
Crimes against the person included murder and bodily injury. In these cases, the victim or his male next of kin had the "right of retaliation" where this was possible. This meant, for example, that the male next of kin of a murder victim could execute the murderer after his trial (usually by cutting off his head with a sword). “If someone lost the sight of an eye in an attack, he could retaliate by putting a red-hot needle into the eye of his attacker who had been found guilty by the law”23. But a rule of exactitude required that a retaliator must give the same amount of damage he received. If, even by accident, he injured the person too much, he had broken the law and was subject to punishment. The rule of exactitude discouraged retaliation. Usually, the injured person or his kinsman would agree to accept money or something of value ("blood money") instead of retaliating. In a third category of less serious offences such as gambling and bribery, the judge used his discretion in deciding on a penalty. Punishments would often require the criminal to pay reparation to the victim, receive a certain number of lashes, or be locked up.
Muslim criminal law arranged punishments for various offences into four broad categories: Kisas, Hudod, Tazeer and Diya
KisasPunishments means the equal punishment. Kisaspunishments are imposed only for premeditated murder and intended crimes other than homicide, which involve the loss of a limb or organ, bearing in mind that the crime and Kisas are equal. It is laid down by the Koran that the Kisas punishment should not exceed the extent of injury or loss sustained by the crime. It states:
"0 believers, prescribed for you is retribution in case of murder. A freeman for a freeman, a slave for a slave. A fema1e for a fema1e. But if his brother pardons a man aught, let the pursuing be honourable and let the payment be with kindness. That is a lightening granted you by your Lord. And a mercy; and for him who commits aggression after that. For him there awaits a painful chastisement".24
"In retaliation there is life for you men possessed of mind haply you will be God fear in”.25
"And therein we prescribe for them: a 1ife for a life. An eye for an eye. A nose for a nose. An ear for an ear, a tooth for a tooth”. 26
Retaliation meant principle, life for life and limb for limb. Kisas applied to cases of will feel killings and certain type of grave wounding or maiming and gave to the injured party or his heirs a right to inflict a like injury on the wrong doer.
On the other hand Diya meant blood money. For certain unintentional injuries Diya was awarded to the victim on a fixed scale. In such cases where Kisas was available it could be exchanged with blood money or Diya. The injured of his heir could accept Diya or Kissas according to his choice; it means in case of murder, the heirs of the murdered person could accept blood money and forgo his right to claim death on the murderer.
This word means the limit or boundary. In Muslim criminal law, “it meant the specific penalties for specific offences”.27 The idea was to prescribe, define and fix the nature, quantity or quality of the punishment for certain particular offences, which the society regarded as anti-social or anti-religious. The offences were characterised as being offences against god or offences against public justice in contradiction to the ‘offences against person.’ The punishment prescribed under Hadd, could not be varied, increased and decreased. The judge had no discretion in the matter but to award the punishment if the offence is abolished. Some of the Hadd punishments were: Death by stoning, amputation of a limb or limbs and flogging. The prescribed punishment for certain crimes were: For Zina or illicit intercourse, death by stoning; for theft, amputation of limb like right hand or left foot; for falsely accusing a married woman of adultery, eighty strips. The Hadd punishment was severe and the object of awarding such punishment was deterrent i.e. to prevent the criminals from committing such crimes, which were injurious to the society or the creatures of the God. In case of Hadd, the injured party could not remit or compound the prescribed penalty as he could do in case of kisas.
The proof of the offence must be very strict and full legal evidence either two or four competent eye-witnessed of proved credit was insisted upon for the conviction of the offender. For example, an offender for the crime of Adultery (Zina) could be punished only if there were four male eye witnesses of actual crime, thus a person could not be punished for Zina unless he defend public decency and committed offence in the open. An accused could be committed for a Hadd offence on his confession but it had to be made four times before (Kadi) judge and it could be retracted at any time. Apart for technical rules of evidence, any doubt would be sufficient to prevent the imposition of Hadd. According to some Jurisprudence, the rules of Hadd are so strict and inflexible that it must be only in rape cases that the infliction of Hadd as of retaliation would be possible and there are only a few instances known in which Hadd has been inflicted.
Means discretionary punishments. These punishments usually consisted of imprisonment exile, corporal punishment, boxing the ear and so on. In case of offence governed with Tazeer, the kinds and amount of punishment was left entirely to the discretion of the judge who could even invent new punishments according to his whims.28
Tazeer could be inflicted in different situations e.g. first, it could be inflicted for offences for which penalty by way of Hadd or Kisas was not prescribed, these offences were not of honesty nature and so were left to the punishment according to the discretion of the judge.
Offences falling under such category were bestiality, sodomy, offences against human life, properly public peace and tranquillity, decency, morality, religion, forgery or deeds and letter with fraudulent design and so on. Actually, the entire Muslim law was based on Tazeer because the Hadd and Kisas had been prescribed for a very few offences only. “The process of trial in cases falling under the category of Tazeer was also simple as compared to the trial procedure in cases falling under Hadd”.29 Tazeer could be inflicted on a confession, evidence of two persons or even on strong presumption. In a sense, the whole past of this criminal law was discretionary and could be regulated by the sovereign. Secondly, Tazeer could be inflicted even in cases falling under Hadd or Kisas, if the proof available for an offence was not such as was required by the law for the award of the prescribed penalty, but nevertheless, was sufficient to establish a strong presumption of guilt, then, instead of Hadd or Kisas, some other punishment was awarded in the discretion of the judge. If because of insufficiency of evidence or some other technical difficulties, Hadd or Kisas could not be awarded, then Tazeer was awarded. Thirdly, the principle of Tazeer covered flagrant crimes, crimes having a dangerous tendency or capable of causing extensive injury to society.
From the above brief survey, though the Muslim law of crime would appear to be very severe on its face, as it sanctioned some cruel punishment like mutilation and stoning, yet as a system the Muslim Law of crime is mild as the law seems to have been framed with more care to provide for the escape of the criminals than to found conviction on sufficient evidence and to secure the adequate punishment for the offender. The Muslim law of crime contained many illogical ties. It was based on some of those concepts of state and social relations whom the Western thought had already discarded long ago. It suffered from complexities and lack of system.
Muslim law drew no clear distinction between private and public law. Criminal law was regarded more as a branch of private law rather than of public law. Its underlying principle was that it existed mainly to afford redress to the injured; it had not much developed the idea that crime was an offence not only against the injured individual but also against the society as such.
Islamic criminal law divided crimes into two categories: Crime against God, such as drunkenness and adultery, which are regarded as crime of deeper character, and crime against man, as murder and robbery, which were regarded as offences of private nature in which the injured person had to take initiative to claim punishment of the offender. Though the crimes against man were punished by the state, yet the basic notion underlying them was to give satisfaction to the injured rather than to protect the society. The crime against man were, though no less ruinous to the peace and tranquillity in the society than the crime against the God, nevertheless regarded as private wrongs and were left to the discretion or caprice of the individual concerned, which may be characterised as the major weakness of the Islamic criminal law. For example while murder was regarded as an offence against man and so a private offence, drunkenness was deemed to be an act against God and so was regarded as a public offence. This can not convince a modern mind because murder is a serious crime and it strikes the very basis of the existence of a civilized society, it looks rather irrational that murder be treated as a private offence and drunkenness should be deemed to be a public offence.
12 Hart, Hart, H.L.A., Prolegomena to the Principles of Punishment, in: Proceedings of the Aristotelian Society 60, 1959/60, 1, 4ff. and Igor Primoratz, Justifying Legal Punishment, New Jersey and London 1989, 1ff.
13 Durkheim, Emile, Über soziale Arbeitsteilung, Frankfurt 1988, 426ff.
14 MacCormick, Neil, Against Moral Disestablishment in: Legal Right and Social Democracy, Oxford 1982, 18 ff..
15 Compare to: Devlin, Patrick , The enforcement of Morals, London 1965, 6ff.
16 Rawls, John, The theory of justice, Cambridge, Mass. 1971, 78ff.
17 Sherwani, A.A.K., Impact of Islamic Penal Laws on the traditional Arab society, New Delhi 1993, 264ff
18 Forte, David F. Studies in Islamic Law, Oxford 1999, 236ff.
19 Spalek, Basia, Islam Crime and Criminal Justice, Devon 2002, 39ff.
20 Abdusamed, Kader, Crime and punishment in Islam, Lenasia (South Africa) 1994, 3ff.
21 Abu Zahra, Mohamed, Crime in Islam, Cairo 1976, 26 ff.
22 Tahir, Mohamood, Criminal law in Islam, Delhi 1996, 62ff.
23 Said, Sabig, Fiqh Al Sunnah, Cairo 1953, 330ff.
24 Koran, 2:178,194.
25 Koran, 2:179.
26 Koran, 5:45.
27 Mohamed, Shallal, Islamic criminal law, Amman 1996, 25ff.
28 Tahir, Mahmood, Criminal Law in Islam, Delhi 1994, 90ff.
29 Mohamed, Schalal, Islamic Criminal Law, Amman 1996, 54ff.
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