In every society, security and stableness are basic needs no less of import than other demands like nutrient and vesture. Travis Hirschi propounded a theory of societal control that emphasizes on the function of society in the control of condemnable behavior[ 1 ]. It specifies the fact that no society can afford to denounce condemnable activity without punctually accepting its duty towards the same. In other words the theory of societal control elaborates on the burden that is shared by society and devised control mechanisms to guarantee a safe societal sphere, one that is barren of any type of delinquency. Man have been witting of the demand for security since the beginning of life and with the formation and development of society, we now have what is known as the constitution of the province or authorities and the formation of Torahs.
The development of these semisynthetic Torahs did non come to completion except in the last few centuries after a long experience of test and mistake[ 2 ]. On the other manus, the Law of Islam that was sent down to Muhammad in Allah ‘s ( SWT ) concluding message to mankind has paid careful attending to this affair and has come with a complete legal system. Taking into consideration the altering fortunes of society every bit good as the consistence and permanency of human nature, it contains comprehensive rules and general regulations suited for covering with all the jobs and fortunes that life may convey in any clip or topographic point. Likewise it has set down penalties for certain offenses that are non affected by altering conditions and fortunes. In this manner Islamic Law combines between stableness, flexibleness and soundness[ 3 ].
Punishment in general
Punishment is defined as the act of penalizing or the procedure of being punished[ 4 ]. Theories of penalty can be divided into two general doctrines, the useful theory and the retaliatory theory. The useful theory of penalty purposes at penalizing wrongdoers to deter or discourage future error. The intent of penalty is to move as an illustration to the remainder of society and put others on notice that condemnable behavior will non be tolerated and will be punished. The retaliatory theory on the other manus seeks to penalize wrongdoers because they deserve to be punished.
Punishments under Islamic Law
As with all penal systems, the Islamic jurisprudence system prescribes penalties when person is found guilty of a error. The doctrine of penalties in Islam indicates that Islam provides penalty merely as a last resort and the intent behind it is reform brought about through a blending of human values and justness tempered with clemency. Punishments in Islam reflects its values where it puts the involvement of the society before the involvement of an person[ 5 ]. The penalty can be terrible depending on the offense but have to stay with rigorous regulations and have outstanding characteristics[ 6 ]. Some of the characteristics of penalty are as follows[ 7 ]: –
Punishments are meant to be a last resort ;
Punishments are made to be illustrations to the populace ;
Punishment are to reform an wrongdoer ;
Punishments are a signifier of requital for the victim.
The penalty system in Islam is aimed towards the three dimension of any offense being the felon, society and the victim. To felons penalty is kaffara ( purification ) and reforming for the re-acceptance into society. To society on the other manus, penalty is a preventative method to salvage society from offenses and eventually to victims, penalty is a agency of requital. Punishments in Islamic Law were set down to protect and procure the ultimate five elements of people ‘s involvements: al-dharuriyat ( necessities ) . These are deen ( belief ) , an-Nafis ( life ) , al-‘aqil ( intellect ) , al-mal ( wealth ) and an-nasil ( household and line of descent ) .
The types of penalty
There are four classs of penalty that felons may be subjected to, viz. , Hadd ( literally intending boundaries ) , Qisas ( requital ) and Diyat ( blood money ) , Ta’zir ( castigation ) and Mukhalafat ( which covers countries of the rights of the province ) .
Hadd ( plural hudood ) literally means boundaries or prohibition[ 8 ]. It is considered to be the most terrible of offenses as they go against God ‘s will and penalties for these offenses are fixed as they have been prescribed by Allah ( SWT ) in the Holy Quran[ 9 ]. The seven offenses prescribed are zina ( illicit sexual dealingss ) , qazaf ( false accusal of zina ) , sariqah ( larceny ) , hirabah ( highway robbery ) , shrub al-khamr ( ingestion of intoxicant ) , riddah ( renunciation ) , and baghy ( rebellion against the authorities ) . These offenses appear to hold been selected to bespeak that life, household establishment, belongings, honor and societal order have to be protected. Evidence for these offenses have to be provided by staying to stringent regulations therefore, doing strong belief hard[ 10 ]. If the offense is proven, wrongdoers for these offenses are punished in public as a step of disincentive[ 11 ]. However it is merely carried out as a last resort after a thorough attempt at reforming the individual has wholly failed.
For illustration, riddah, where a Muslim renounces his or her religion, it is treated as lese majesty. A compulsory penalty has been set for this discourtesy. Males face decapitation, while females face imprisonment until the clip where they renounce their new belief and revert to the instructions of Islam. However, every attempt is made to let the male wrongdoer to return to Islam including having visits of spiritual functionaries before the penalty is inflicted.[ 12 ]
The penalties that have been set and have to be carried out if all standards for grounds have been satisfactorily met for the remainder of the offenses prescribed above are[ 13 ]:
Zina – A married person would confront decease by lapidating while an single individual would confront 100 ciliums.
Qazaf – 80 ciliums are compulsory for a free individual while slaves face 40 ciliums
Sariqah – A first clip wrongdoer faces amputation of one manus at the carpus, a 2nd clip wrongdoer faces amputation of the 2nd manus while a 3rd clip wrongdoer face either amputation at the mortise joint or imprisonment until the single repents.
Hirabah – If decease is caused, the wrongdoer faces decease by decapitating. If no decease occurs, the wrongdoer faces cross-limb amputation. If the wrongdoer is arrested before committee, he is imprisoned until penitence.
Shrub al-khamr – 80 ciliums are compulsory for a free individual while 40 ciliums are compulsory for slaves or those in the Shafi’i school
Baghy – Death is imposed for those who fight and are captured. However, ta’zir penalties are for those who are arrested or resignation.
Looking at the penalties set out above, it appears as really terrible and rough but the chief intent of hudood penalties is to discourage the committee of offense in the really first topographic point. Taking the illustration of sariqa ( larceny ) , Allah SWT proclaims,
“ As to the stealer, male or female cut off his or her custodies, a penalty by manner of illustration, from God, for their offense: and God is Exalted in power ”[ 14 ].
Islam does non digest larceny as it deprives a individual of their difficult earned money and properties. Looking at the above poetry, it is clear that the purpose to penalize the wrongdoer is to put an illustration for the remainder of society that an act of stealing will non be condoned or accepted by God.
What hudood seeks to convey is peace and order and disciplined behaviors as people would earnestly see their actions to make an evil title as they know the penalty that awaits them is terrible. This is the wisdom of hudood. But this is non to state that under Islamic Law, at the slightest opportunity available, penalty will be imposed. On the contrary, penalties would merely be imposed as a last resort where all the conditions and elements of the offense have been satisfied.
Qisas & A ; Diyat
Another characteristic of Islamic Law is the right of requital ( Qisas ) . The construct of requital is explained in the Holy Quran as follows:
“ The recompense for an hurt is an hurt equal thereto ( in grade ) , but if a individual forgives and makes rapprochement, his wages is due from God, for ( God ) loveth non those who do incorrectly. ”[ 15 ]
In simple footings, Qisas follows the philosophy of an oculus for an oculus, where the penalty is similar to the offense. As Qisas is normally reserved for offenses that involve homicide or bodily injury, for a offense of homicide, the penalty would be decease while a offense affecting bodily injury, the penalty would be to bring down an hurt comparable to the injury caused. A alone characteristic of the penalty of these offenses is that the victim is able to bespeak for penalty or to forgive the wrongdoer[ 16 ]. The victim may besides bespeak for diyat ( blood money ) , a signifier of compensation paid by the wrongdoer to the victim, the sum of which has to be equal to the loss incurred and non more. In a Hadith narrated by Imam Nissai it mentions that every portion of the organic structure has blood money, for illustration the blood money for the eyes is the equivalent of 50 camels, etc[ 17 ].
Ta’zir penalties are discretional penalties that do non fall under the legal power of hudood or qisas and can non be used as an option to these penalties. Ta’zir can, nevertheless, be used if a offense has been committed but has non met the criterions of hudood or if the wrongdoer has been pardoned by the victim. They are the most flexible type of penalty because they take into history the demands of society and altering societal conditions. It is besides flexible plenty to recognize the maximal general benefit to society, efficaciously reform the condemnable and cut down the injury that was caused. The penalties may run from anyplace between a warning to decease.
One celebrated illustration happened in the clip of ‘Umar ibn al-Khattab ( Ra ) , where he punished a bookman who gave false testimony. He ordered that the bookman should hold his caput shaved, his face painted black, and he paraded semi-clothed in forepart of people while sitting backwards on a donkey[ 18 ]. But the penalty can be merely every bit terrible as the penalties under hudood. The power to penalize is given to the justice or to the legal governments.
The intent of ta’zir is to forestall an wrongdoer from reiterating the offense or to tend a individual to carry through his or her responsibility. A figure of factors go into taking the appropriate penalty under ta’zir one of which is the state of affairs of the wrongdoer where facets such as the societal position of the wrongdoer as it is believed those from the common mans require rough penalty to reform than those in higher categories. It has to besides be determined if the wrongdoer has committed similar offenses in the past, doing the penalty individualized.[ 19 ]
This covers the countries of the rights of the province. A individual or group contravenes a jurisprudence which the province has enacted such as transcending the velocity bound or parking in no parking countries. The penalty imposed is at the discretion of the justice or the legal governments.
If a individual who has non fulfilled their responsibility ( such as non fasting or executing supplications ) , the person is required to pay kaffarah or repentance. It is non meant to be a penalty instead it is a reminder of their duties. There are three signifiers of kaffarah which are offering a forfeit, feeding six orphans or the hapless and executing fast for three yearss.[ 20 ]The kaffarah that needs to be performed depends on the misdemeanor that had occurred.[ 21 ]It is interesting to observe that the ‘crime ‘ here is non one which is against the province or another single but is a failure to carry through one ‘s responsibility or duties under Islam of which there are besides ‘punishments ‘ prescribed.
Punishment as a last resort
Badness of penalties as a signifier of bar and disincentive
The ultimate purpose for a Muslim society is that its citizens do non perpetrate offenses at all and so there should be no juncture to fall back to utmost penalties like the amputation of the manus in instances of larceny or whipping or being stoned to decease in instances of zina. The really idea of watching person lose a manus for perpetrating larceny is decidedly unpleasant and considered harsh which is why it is non surprising that hudud penalties frequently make the headlines in the media due to its badness. However the badness of the penalty is to function as a bar and disincentive from perpetrating these offenses in the first topographic point. It is better to be terrible to one and salvage a 1000 than to be indulgent to all and ruin many. Allah SWT is surely a good sawbones who does non waver to cut off a icky limb to salvage the whole organic structure[ 22 ]. Merely conceive of if you see person walking about with merely one manus because he was punished under hudood for stealing, you would maintain off from such individual. This indirectly causes stigmatisation for the wrongdoer as society would non desire to be associated with an wrongdoer. This is another actuating factor to abstain from perpetrating the offense.
Further, merely because penalties under Islamic Law are seen to be rough, it does non needfully do them unfair. Harmonizing to Abdur-Rahman.Doi[ 23 ], incidences of cutting off the custodies are rare in an Islamic society for two grounds. First, statistically talking, the simple enforcement of hudood penalty itself has a important deterring consequence on possible wrongdoers which unwittingly reduces the offense rate in a society administered by Shariah. He cites the illustration of Saudi Arabia ( in malice of the deformed political orientation of its authorities ) in recent times and the epoch of the first coevals of Muslims more than 14 hundred old ages ago[ 24 ].
Second, the process in seeking strong belief of an alleged wrongdoer is so luxuriant and rigorous and involves a host of exclusions and conditions, as a consequence of which in most instances the wrongdoer ‘s penalty is reduced from the degree of Hadd to Ta’zir, where the opinion is left to the discretion of the justice.
Fear of Allah ( SWT ) and answerability in the Hereafter
Harmonizing to Muslim legal experts, penalties are designed to maintain the sense of justness alive in the community by a public renunciation of the Acts of the Apostless go againsting the bounds set by God. They are expected to construct up in the society a deep feeling of abomination for evildoing against fellow human existences and hence against God, a evildoing which harmonizing to the Quran is the root cause of all upsets and corruptness in human life[ 25 ]. Hence terrible penalties are imposed for intents of detering most people from perpetrating offenses. For this intent it imbues the Muslims with the fright of Allah ( SWT ) and inculcates the sense of answerability in the Hereafter, as it is believed that penalty should be prevented every bit far as possible.
“ When it is said to him, “ Fear God ” , he is led by haughtiness to ( more ) offense. Enough for him is Hell ; – and evil bed so ( to lie on ) ! “ – Surah Al-Baqarah 2: 206
“ And fear the Day when ye shall be brought back to God. Then shall every psyche be paid what it earned, and none shall be dealt with unjustly ” – Surah Al-Baqarah 2:281
Punishment is a necessary immorality
Abdur-Rahman Doi, in his encyclopedic work Shariah: The Islamic Law makes an insightful observation that the Quran by and large adopts the same word for ‘punishment ‘ ( requital ) as for the original offense[ 26 ]. Therefore, both offense and penalty are known as Sayyiah ( immorality ) . By utilizing the same word for both offense and penalty, it implies that penalty although justified by fortunes is genuinely talking nil but a necessary immorality[ 27 ]. This being the instance, at the first case where a offense has been committed, Islam seeks to forgive and reform the wrongdoer wherever possible. However, where it is clear that it is improbable for the wrongdoer to reform or to repair his or her ways penalty would so be imposed as a last resort.
Waiver of penalties in the presence of uncertainty
Any shred of grounds that is dubious or circumstantial will forestall penalty. It is narrated in the Seerah ( life ) of Muhammad ( proverb ) how he would exercise himself to debar the penalty when persons asked for penalty to be implemented upon them[ 28 ]. It is narrated that Muhammad ( proverb ) said, “ To liberate person condemnable erroneously is better than to penalize person guiltless erroneously ”[ 29 ]
A’isha narrated that the Prophet ( peace be upon him ) said:
“ Ward away penalty every bit much as you can. If you find any manner out for a Muslim so set him free. If the Imam makes a error in allowing forgiveness, it is better for him than that he should perpetrate a error in enforcing penalty. ”
Therefore should at that place be even a individual shred of uncertainty on the grounds, hudud penalty in such fortunes should non be imposed. An illustration of this is in the instance of criminal conversation ( zina ) where the testimonies of four oculus informants are required to turn out the offense. Allah SWT says,
“ If any of your adult females are guilty of obscenity, take the grounds of four ( dependable ) informants from amongst you against them ; and if they testify, confine them to houses until decease do claim them, or God ordain for them some ( other ) manner ”[ 30 ].
If there is a small uncertainty, no Hudud punishment is given at all, alternatively they will so be capable to the penalty of qadhf ( false accusal ) . Hence, Hudud penalties are waived in the presence of uncertainty, and that benefit of the uncertainty is ever given to the accused.
The Right of Retribution
Under Islamic jurisprudence, it offers the aggrieved party the right of requital. This right of requital belongs to the person, and non to the society or province. This simple displacement in the duty brings about a profound alteration in the whole system of implementing justness. Alternatively of get downing an irreversible procedure of test and penalty which would affect a great trade of clip and costs, Islamic jurisprudence leaves the land unfastened for colony between persons, without the intervention by impersonal bureaucratic machinery, though under no fortunes can the single take the jurisprudence into his or her ain custodies[ 31 ].
If we compare this with a state like Malaysia which has its ain Criminal Laws enshrined under the Penal Code and the Criminal Procedure Code, where a individual is a victim of larceny or robbery for illustration, the action against the accused is brought by the province and non the victim. Besides where all the elements of the offense are satisfied, the accused would be either imprisoned for a period which may widen to seven old ages, fined or in some instances to both imprisonment and mulct. Under this condemnable jurisprudence system, the revenue enhancement remunerator who may include the victim themselves would be burdened with ‘taking attention ‘ of the ‘welfare ‘ of the accused whilst in prison. Fines paid are paid to the province and non to the victim who is really the aggrieved party.
It was merely late that Malaysia introduced the construct of victim impact statements in tribunals. This is an avenue provided to the victims of offenses to voice their feelings in relation to the offense committed against them of which the victim impact statements will be considered when enforcing sentencing or penalty. Hence what is certain from the Malaysian Criminal Law system is that unlike the Islamic legal system upon the constitution of guilt and where the accused is found guilty of the offense, the infliction of penalty is definite and as a affair of first pick.
The Concept of Forgiveness
The construct of forgiveness is one of the chief elements under the construct of penalty under Islamic jurisprudence. In Islamic Law the wants of the victim or his household is given an of import function in make up one’s minding whether or non the penalty should be carried out. The victim is allowed to excuse the culprit because the penalty in offenses under Qisas is considered the right of the victim and is evitable because “ whoever forgives and makes damagess, his wages is due from Allahaˆ¦ ”[ 32 ]. The ideal manner is non to seek retaliation at all but rapprochement and to do the wrongdoer recognize the gravitation of his or her offense.
The Concept of Tawbah
The construct of tawbah is besides another component of involvement. If an person does perpetrate offense, Islam allows the person to atone ( tawbah ) as Islam believes in presenting its trusters a 2nd opportunity. Tawbah brings the significance of return from wickedness.[ 33 ]The construct of tawbah can be clearly seen to be encouraged in the Holy Quran through the poetry,
“ But if the stealer repents after his offense, and amends his behavior, God turneth to him in forgiveness: for God is Oft-forgiving, Most Merciful ”[ 34 ]; and
“ Except those who repent and do damagess and openly declare ( the Truth ) : to them I turn for I am Oft-returning, Most Merciful ” – Surah Al Baqarah 2:160.
One is said to hold repented if there is a feeling of echt compunction, shame and decide to non reiterate the offense.[ 35 ]Where a individual has repented before being caught or arrested, the consequence of this is that it can remit the hadd penalty.
Islam ‘s attack towards offense bar
Islam has looked towards offense bar more than penalizing the felon. This is kindred to the English stating “ Prevention is better than remedy ” . For this intent Islam has prescribed preventive steps that are to be taken in order to control offense in the society. Some of the cardinal steps that are thought to assist members of the society to defy the impulse to perpetrate offenses[ 36 ]are as follows: –
Moral Development and ‘pre-crime reform ‘
Self purification is one of the chief ends of the Prophet ‘s ( peace be upon him ) mission[ 37 ]. In Surah Al- Baqarah 2: 112 it says,
“ Nay, – whoever submits his whole ego to God and is a actor of good, – he will acquire his wages with his Lord ; on such shall be no fright, nor shall they grieve. ”
The instructions of Allah purpose towards executing what is good and abstaining from injury. When the person ‘s bosom is with the Almighty God, he does non let for his self-importance to command his head and its carnal demands, so indirectly one abstains from perpetrating offenses. It is besides for this ground that Muslims are required to pray five times a twenty-four hours so as they are invariably reminded that there is an Almighty who created them and they should bow their caput in entire unimportance towards God. It is a corporate aware speculation that helps you non to bury who you are and where you belong.
In a Muslim society Khurram Murad argued that every establishment is value oriented and owes a duty towards the moral development of every individual. Reform is hence a pre-crime duty and non a post-crime syndrome[ 38 ]. Muslim Law makes an attempt to guarantee that the incentive to perpetrate offense is minimum. This is for case the ground behind the complete prohibition of devouring alcohols and intense free-mixing of unrelated members of the opposite genders. Part of pre-crime reform involves development of an environment where preventative steps are already in topographic point. Once the offense is committed nevertheless, the best topographic point for reform is in the household and in society where a felon is to populate after the penalty and non in a prison where every inmate is a condemnable[ 39 ].
While Shariah protects society by passing penalties and preventive steps against offenses, it does non fall back to punishment without first preparing for the person a state of affairs conducive to a virtuous life. It would be considered unfair from the point of view of Shariah to let a risky act, such as imbibing intoxicant and so penalize a individual for imbibing while driving.
Family is considered as the pillar of society. Children look up to their parents as the instructors of imposts, patterns and morality. Hence stable relationships between parents, partners and kids reduces the demand for prosecuting in condemnable activities. Research has shown that kids from individual parent places, dysfunctional households, etc are normally involved in offense as a agency to remain off from the ‘problems ‘ at place or for intents of seeking attending. Therefore a strong household bond coupled with spiritual and moral beliefs and instructions would non make a demand for people to perpetrate offenses.
The battle against poorness
This refers to the society ‘s responsibility to assist the hapless ( in the manner of zakat ) as poorness is said to be one of the grounds behind the happening of offense. The Holy Quran has introduced ‘zakat ‘ as one of the good workss which leads to the purification and development. In Surah Al-Baqarah 2:110, it provides,
“ And be steadfast in supplication and regular in charity: and whatever good ye send Forth for your psyches before you, ye shall happen it with God: for God sees good all that ye bash. ”
In a Muslim province, every person is entitled to societal security through the public exchequer where financess are collected from assorted beginnings including the obligatory one-year payment of zakat. Where a citizen is driven by force of fortunes since he could non gain his life for himself or his household due to miss of employment chances or was non taken attention of by the cardinal exchequer, the society and authorities will be considered at mistake and no hudud penalty will be imposed on the accused.
It is maintaining with this rule that Umar bin-al-Khattab the 2nd Caliph or swayer of Muslims after Prophet Muhammad ( peace be upon him ) did non use the hudud penalty to those accused of larceny during the period of dearth in the province of Madinah[ 40 ]. Similarly, if a individual is found stealing out of hungriness or to carry through his basic demands, so no penalty is meted out to him as it is deemed that the mistake lies with society and authorities because it is their responsibility to see that no individual is without agencies to back up himself or his household with self-respect.
“ And in their wealth and ownerships ( was remembered ) the right of the ( needy ) , him who asked, and him who ( for some ground ) was prevented ( from inquiring ) . ” Surah Al Dhariyat ( 51:19 )
In Malaysia for illustration, a female parent who stole a Sn of milk for intents of feeding her kid was sentenced to a twenty-four hours ‘s gaol and imposed a RM500 mulct in default of one month ‘s gaol[ 41 ]. One tends to inquire looking at the sentence passed if the sentence imposed was compassionate and justified sing the fortunes that drove the female parent to steal in the first topographic point. Besides if the female parent had RM500, she would non necessitate to fall back to stealing in the really first topographic point. Further being the sole breadwinner, in the event she is unable to pay the mulct, so she would necessitate to function her one month prison sentence and hazard being separated from her kid. This is the deduction of the rigorous condemnable Torahs in Malaysia.
To populate in changeless fright of being attacked or robbed is certainly unacceptable province of personal businesss. The ideas and thoughts that are prevailing in the society around us affect the manner people behave and in this society people are invariably motivated to increase their wealth and become comfortable. But when this is combined with the impression of freedom, people so put no bounds for themselves on how to accomplish these purposes, and offense is an easy manner to carry through them.
The current steps taken to antagonize this deathly tide are looking to be unequal. This can be seen from the addition in the figure of bit larceny instances in Malaysia for illustration. Criminals mock at the possible effects of their actions and many come out of short prison sentences to pique once more. Victims on the other manus feel disconnected from the condemnable justness system as their sentiment and wants are non considered. All this inevitably consequences from a judicial system that is semisynthetic and a society which is governed by people ‘s caprices and desires.
In Islam, although the Islamic State has a comprehensive judicial system which acts as a hindrance to felons and to reform those who have gone astray, Muslims are of course inclined away from offense because their belief and fright of Allah ‘s ( SWT ) penalty prevent them from perpetrating it in the first topographic point. As good, the attitude in society towards offense is one of entire rejection. The economic system will guarantee that people are non forced to fall back to offense as a agency of endurance. These factors will automatically look into the degrees of offense in an Islamic province. Hence Islam tries to pass over out all fortunes and motivations that may take to offense.
But even if after that a offense is committed, Islam tries to relinquish the executing of penalty if there is any uncertainty about it. By this it safeguards the life of the accused and guarantees him that no penalty will be carried out until every alibi is exhausted and every ground for flinging the penalty is looked into. The rights of the accused are safeguarded by the fact that guess and accusals can non be evidences for penalties and that the accused enjoys the greatest warrant of justness and being spared the penalty whenever possible.