Criminal Punishments in Islam - Research Paper Example

submitted Crime Punishment in Islam Introduction As a path to follow, the Sharia provides a clear and comprehensive road map for living a pure spiritual life as a Muslim. It is both prescriptive and proscriptive, covering all of the most basic elements of human existence. For its most ardent believers, Islam serves as an absolutely ubiquitous mechanism of social control. It offers its righteous followers on the Day of Judgment an eternal life of heavenly bliss and unwavering physical pleasure (such as soft cushions, rich food, soothing drinks and voluptuous virgins), a world in sharp contrast to the meager and dismal living conditions of the nomads of the Arabian Desert. For violators of its sacred rules of conduct, the traditional Islamic law provides a clear message of swift and severe punishment, (for example amputation, death by stoning and beheading) and the lingering fear of eternal damnation through Allah’s almighty power (Miethe and Lu, 163-164). Demystifying ‘Crime’ and ‘Punishment’ in the Islamic Religion When we examine the philological meaning of jinaya (perpetration of a crime), we see that it is derived from the verb jana (to commit a crime, to sin). It is defined as a crime or a sin which, if committed, makes retaliation mandatory for its perpetrator and incurs punishment in this world and in the hereafter. Thus, when it is said ‘jana ala nafsih wa ala ahlih’ (‘he perpetrated a crime against himself and his family’), such an evil is termed as jinaya. Technically, a jinaya is an aggression against a person or his rights, making retaliation or some other form of punishment mandatory. Philologically, the word uquba (punishment) is a noun derived from the verb aqaba (to punish). It is used when a person incurs a punishment as a result of the sin that he has committed. Uquba is used to define restrictions placed by God in order to restrain men from doing what He has forbidden and to leave what He has asked them to leave (Haleem and Daniels, 29-30). Punishments under Islamic Law Punishment in pre-Islamic Arabia was based primarily on the principle of retaliation (lex talionis). Lacking a state or central authority in nomadic and tribal life to regulate conflict and disputes, punishment for wrongdoing was privately dispensed by the victim and affiliates such as extended family or patron tribes. However, because of the nature of communal life and strong kinship solidarity, there was also collective responsibility for any serious misconduct committed by a clan member (Miethe and Lu, 164). Categories of crime The Muslims categorized crime in several ways. Each category of crime had a prescribed punishment. Crimes were categorized into such forms as adultery and fornication, murder and crimes to do with property and theft. Others are defamation (qadhf), crimes of taking some foods and drinks like wine among others. The distinct classifications are Hudud crimes, Qesas and Tazir. Hudud comprises of theft, adultery and drinking alcohol. Punishments for such crimes were flogging, amputations and stoning among others. Qesas crimes are retaliatory, the family of a murder victim, for instance, may demand compensation. Tazir crimes are less severe; their punishments include confinement, boycott or fines. According to Halim and Daniels, the judge in Islamic Sharia enjoys vast discretionary powers in fixing penalties, their amount, and their enforcement in such a manner that will help and restrain the culprit from the crime. This power does not extend absolutely, and is by no means free of constraints or restrictions. Rather, it is constrained by the appropriate laws concerning this punishment and its suitability to the crime, the culprit and society, and the extent of the prevalence of crime in this society (Haleem and Daniels, 30). Haleem and Daniels further highlighted the specific punishments meant to deter the culprit and prevent crime. The punishments are imprisonment, banishment and exile from the place of the crime and the city in which it was perpetrated, death, reprimand and rebuke, threat, boycott, publicizing of the crime perpetrated, financial punishment, by the seizing or destroying of wealth or assets and flogging which is often the subject of controversy (Haleem and Daniels, 30). Flogging The Quran advocates for flogging among other forms of punishment. Quran 24:2 states, “Give a hundred lashes each to the adulterer and the adulteress.” A man who had drunk wine was brought to the Prophet who ordered him to be beaten. Flogging as earlier mentioned is controversial. When enforcing this punishment, certain conditions were to be considered. The number of lashes and the nature of the crime committed were also to be taken into account. This punishment is also constrained by certain conditions and specific methods. The media often tends to portray flogging, or rather Islam and its laws negatively. Benefits of flogging It is easy to enforce this punishment while at the same time achieve the objective of warning and prevention. There also is the physical effect of this punishment on the one who is flogged, which directly encourages him to desist from crime, now and in the future. In addition, this punishment contains a psychological and physical pain far greater than any other pain; this again serves as a deterrent. This mode of punishment is advantageous in that it is sufficient to replace other punishments, such as imprisonment, which frequently brings criminals into contact with one another and provides opportunities for them to learn each other’s criminal ways (Haleem and Daniels, 31). Flogging is applicable to small crimes and those crimes of high magnitude. Furthermore, this punishment does not affect other people as it applies only to the person who committed the crime. Contrary to other forms of punishment, flogging does not affect the perpetrator’s family as would be the case in imprisonment. There community, family and children are not affected directly, neither are family or community resources involved. Flogging restrains the perpetrator form similar acts in the future because he understands the magnitude of pain involved, and even worse, that he will bear all the consequences of the crime solely. How are the crimes of theft and murder punished in Islamic religion? Murder The most serious crime in Islam is murder. There are two types of murder: murder with intent and murder without intent. The penalty for intentional killing of another person is death; unless compensation is (diyya) is demanded by the victim’s family or they pardon the offender. The eternal and worldly damnation of murder is vividly and clearly expressed in the Quran, and the granting of compensation or other remission for the offender’s sin is considered a one-time concession of a merciful God. Possible penalties for intentional murder are death through retaliation by the victim’s family, compensation in form of money or property to the victim’s heirs, forfeiture of inheritance, or a pardon. No fixed monetary amount is established for compensation in the primary religious texts for Islamic law. However, the Quran does make reference to granting “any reasonable demand,” and Allah is said to reward individuals who pardon an offender (Meithe and Lu, 171). In another view, Qisas is the Islamic code dealing with murder. It is not equivalent to a death penalty. Murder is a crime whose punishment is an exclusive right of the victim’s next-of-kin. The accused can be pardoned, be made to pay blood money as monetary compensation, or to be executed. Interestingly Islam encourages the first option of pardoning (Zayd, 3). Blood money is paid the event of unintentional murder. The murderer is mandated to abide by what has been settled and to pay it as agreed upon. Allah provides facility for relaxation in the case of murder without intent so that the potentialities of all those involved may keep developing. However, no one should transgress after the agreements have been made, or otherwise he will face severe punishment. Islam, therefore, is not vindictive in its forms of punishment. Its comprehensive ethical code seeks to promote forgiveness, love and a society built upon peace and compassion. Most western penal systems in modern nations, contrary to Islam’s norms, carry out mandatory death penalties for cases of murder; they do not give room for forgiveness or compensation per se. Theft Islam refers to theft as sariqah. It is defined as the taking of another person’s belonging, of a value exceeding the minimum quantity, from its usual place of custody by a sane, mature individual in a stealth manner. Sariqah does not involve the forceful taking of property or goods, as this would constitute a totally different crime. Sariqah must involve taking the property from the clear custody of its owner and not in some public place. Furthermore, for the crime to be considered sariqah, the perpetrator must be sane and of discernible age (Zayd, 6). Theft is a punishable crime spoken of in the Quran. Quran 5: 38, 39, “ And as for the man and the woman addicted to theft, cut off their hands as a punishment for what they have earned, an exemplary punishment from Allah and Allah is Mighty, Wise. But whoever repents after his wrong-doing and reforms, Allah will turn to him mercifully. Surely, Allah is Forgiving, Merciful” Hell, Otto, 554). The above quotation has different interpretations, literal and metaphorical. But even the literal interpretation does not imply the physical act of cutting off someone’s hands. On a light point of view, there are a lot of Muslims in the world with hands; there is no significant number without hands or feet. Theft is not a very serious crime compared to other crimes. This is justified by their forms of punishments. The punishment for murder goes to the extreme of punishment by death, whereas the punishment for theft is cutting off hands. As such, their extremities differ greatly. Literally, the hand of the person who steals is to be cut off from the wrist. For a second theft, the left foot is cut, and for continuous thefts, the perpetrator is subject to imprisonment. Islam categorizes theft in an interesting way. If someone steals a book, he is not amputated. This is argued that the object of the theft can only be its contents and not the property itself. If someone steals common property, it is not considered theft because it belongs to a common lot and therefore the person is not amputated. Stealing from the public treasury is also not considered as theft because the treasury is common wealth in which the perpetrator also has a share. Circumstance sof theft are also taken into consideration. An individual may steal out of dire need for something; perhaps he is starving or extremely poor. Such an individual does not lose his hands. In extreme cases amputation is carried out, when there is persistent theft from one particular individual, then there has to be witnesses to prove the theft and when there is no likelihood of the ‘thief’ to reform. According to Zayd, the aim of Islamic punishments is two-fold: reformation of the individual in addition to deterrence of crime in society. For instance, there is a story of a woman who came to the Prophet voluntarily and confessed of adultery. She sought to be purified of her sin. When she persisted in her demands to be purified despite the Prophet’s urging her to go back and seek Allah’s forgiveness, she was ordered to be stoned. The prophet afterwards prayed the funeral prayer over her. The Prophet when asked why she was praying for an adulterous woman replied that she had made a repentance that would suffice division among seventy people. Indeed, the focus of all ordinances in Islam is the reform and betterment of individuals, societies and nations (Zayd, 10). Implications of Murder and Theft Punishments The Islam modes of punishments for crimes have attracted conflict with international human rights and even the media. Punishments like amputation and stoning to death have drawn negative criticisms for Islam’s punishment for crime. There also have been claims that the administration of such punishments has a lot of gender bias. Classical Islamic Law would punish offenders for sexual offences committed (hadd punishments). This is thought to violate children’s right because maturity begins at puberty. Contrarily, maturity is often assumed to have been achieved with the onset of menstruation and development of physical body parts like breasts and pubic hair. Young teens could therefore end up being punished for committing sexual offences. Human rights organizations have recorded numerous accounts of individuals being harassed and arrested by authorities in a cruel manner.. Arbitrary arrests, extensive detention without communication to family members, torture and various types of intimidation are widely reported in the law enforcers’ performance of their duties as the moral police. Within the context of physical and psychological abuse of suspects, the religious police can be viewed as serving dual roles of formal law enforcers and informal agents of corporal punishment (Miethe and Lu, 178). The apostacy in Islam also violates civil rights. Punishment is administered to any individual who changes from Islam to another religion. The punishment for this is a death sentence. Human rights activities may argue that such acts violate civil rights as changing one’s religion would be dangerous. According to Zayd, many Muslims as well have difficulty coming to grip with the punishments. In an attempt to become objective, Zayd argues that the notion of the barbaric nature of Islam punishment of crime through stoning, amputation or murder must be placed into proper perspective. According to this writer, execution by beheading could be less barbaric than, say, frying the brain with massive doses of electricity or the injection of lethal substances that induce suffocation. This is evident in today’s law and correction institutions. Further to that, argues Zayd, amputation or flogging could be less barbaric than locking individuals in mass institutions in often subhuman conditions, also evident in the modern day’s correctional facilities (Zayd, 10). The nature of punishments is unsettling. But they are a necessary tool for ensuring a crime-free world. Looking at the tremendous deterrent value of these punishments coupled with their very rare implementation, and the resultant stability and order that results from them, we can conclude that, though harsh in some aspects, they are indeed a mercy to human society (Zayd, 10). Conclusion Muslims believe in justice that is carried out in public and that no authorities such as the police should engage in brutal or corrupt behavior. The punishments administered to perpetrators, according to Muslims, should not be carried out in secrecy. They should not also be inhumane and torturous in nature and should be administered in clear and deserving circumstances. The extremely harsh punishments are not carried out in all countries, but in countries that are stricter and require strict deterrent measures to curb prevalent crime. Muslims show great respect to their law and commit to keeping the law. They pride in what is portrayed by the west as barbaric because they believe in applying justice without favor. It is notable that the punishments discussed apply to the people of Muslim faith, and are not in any way forcefully imposed on non-Muslims. Work cited Top of Form Bottom of Form Top of Form Bottom of Form Top of Form Bottom of Form Top of Form Abdel, Haleem M. A, ?A?dil U. Shari?f, and Kate Daniels. Criminal Justice in Islam: Judicial Procedure in the Shari??a. London: I.B. Tauris, 2003. Internet resource. Hell, Joseph, and Walter Otto. The religion of Islam. Jena: Diederichs, 1915. Print. Ibn, Abi? Z.-Q. A. A. A.-R, Abdullah -M. Suhrawardy, and Alexander D. Russell. First Steps in Islamic Law in West Africa: Consisting of Excerpts from Ba?ku?rat-Al-Sa?d of Ibn Abu? Zayd : with Arabic Text, English Translation, Notes, and a Short Historical and Biographical Introduction. Lagos: Islamic Publications Bureau, 1986. Print. Miethe, Terance D, and Hong Lu. Punishment: A Comparative Historical Perspective. Cambridge: Cambridge University Press, 2005. Print. Bottom of Form Read More