The objectives of the punishment system are three fold :
- To punish those guilty of crime, thereby acting as a Kaffara (purification) and reforming them.
- To act as a deterrent for society from committing crime.
- To be a means of retribution for those who are victims of crime.
Principles of the Punishment System
The following are the principles of the punishment system :
1) The Muslim is accountable for every action that he/she has performed and for every crime there exists a punishment that is enforced by the state.
Such a principle is important because it not only protects the society, but taking the punishment for such crimes through a court of Shari‘ah removes its punishment in the afterlife. It acts as a Kaffara and is a means to repent and seek forgiveness. Muslims need to remember that Allah (swt) knows and will account all the actions. Therefore, it is better to get the punishment in this life and sincerely repent than to face the punishment in the afterlife.
Many of the Muslims during the time of Muhammad (saw) confessed to their crimes that were severely punishable in order that they may avoid the retribution for their actions on the Day of Judgment. It is narrated by Abu Daud when referring to a man who confessed to an illegal sexual act, and was ordered to be stoned to death, Muhammad (saw) said, "He is more agreeable than the fragrance of musk in the eyes of Allah."
2) The punishment should be prevented as much as possible.
This applies because the severity of the punishment serves the primary role of a deterrent. Any shred of evidence that is doubtful or circumstantial will prevent the punishment. Indeed it is narrated in the Seerah (life) of Muhammad (saw) how he would exert himself to avert the punishment when individuals asked for the punishment to be implemented upon them. It is narrated that Muhammad (saw) said, "To free someone criminal mistakenly is better than to punish someone innocent mistakenly." ‘A’isha (ra) narrated, "Ward off punishments as much as you can. If you find any way out for a Muslim then set him free. If the Imam makes a mistake in granting forgiveness it is better for him than that he should commit a mistake in imposing punishment."
In this way, bearing in mind the heavy burden of proof, false conviction or unjustified punishment will be absent in the Islamic judiciary.
3) Islam sets down punishments to protect and secure six issues for all citizens of the state, whether Muslim or non-Muslim : Belief, Honor, Mind, Property, Life and Offspring.
1. Belief : The Islamic belief is the pillar of the deen and like any precious jewel, it is protected. Therefore, anyone who wants to leave Islam after accepting it and being advised, is subject to the penalty of death. The same punishment is applicable to anyone that slanders the belief of Islam.
Concerning the non-Muslims, the meaning of the Qur’anic verse, "There is no compulsion in religion" [TMQ 2:256], ensures that non-Muslims cannot be forced to become Muslims, and their right to practice their religion is protected.
2. Honor : In Islam, women are an Honor ('‘ird) and must be protected from all harm, slander and degrading actions. Therefore, Islam protects the dignity of women by punishing those who even backbite against her. Moreover, Islam protects the Honor of people by punishing those who spread slanders against them. Anyone who is properly convicted of doing so is punished by eighty lashes.
3. Mind : The use of alcoholic drinks and any other substances that befog the mind are forbidden in Islam. Accordingly, all the social problems which are inevitable consequences of such substances on the society are removed. The punishment for use of such substances is eighty lashes.
4. Property : Islam protects the wealth of all its citizens by securing a harsh punishment, e.g. cutting the hand of the thief, subject to all the conditions which apply here (like the value of the goods, the place of storage of the goods etc.)
5. Life : Muhammad (saw) said that, "The blood of a Muslim is worth more than the Ka‘aba and all its surroundings." The punishment for murder is death, with the right of the family of the deceased to forgive and receive blood money.
6. Offspring : Islam guarantees recognition of the correct lineage of people and their children, and ensures that no child is wrongfully attributed to anyone other than their own parentage. This is primarily achieved by forbidding and punishing illicit sexual relations.
With all these securities, Islam protects the things which human beings hold as most valuable. Those who are guilty of abusing any of these securities are subject to punishment.
Who is subject to Punishment?
Both Muslims and non-Muslims who are under the authority of the Islamic State are subject to the punishment of the judiciary if they are proven to have committed the crimes. This is because the orders of punishment that appear in the Qur’an or hadith are general and do not specify that the punishments are restricted to Muslims or non-Muslims, e.g. Allah (swt) says,
"And as for the male and female thief, cut off their hands as a punishment for what they have done." [TMQ 5:38]
Additionally, Muhammad (saw) administered the punishments of hudood upon the Muslims as well as the non-Muslims, as was the case when two Jews committed zina (fornication), and the ayah was revealed regarding them :
"The fornicator and the fornicatress, lash each of them one hundred stripes." [TMQ 24:2]
It is forbidden to discriminate against any non-Muslim if he commits a crime. This is because all citizens of the Islamic State are equal in status, and have the same rights guaranteed. Muhammad (saw) said, "Whoever harms a dhimmi, it is as if he harms me."
Only those who are responsible for their actions are subject to punishment. Muhammad (saw) said, "The pen is lifted (from recording the deeds of) three : The majnun (madman) until he becomes sane, the child until he becomes mature and the sleeping person till he awakes."
In all of the situations mentioned in the hadith, the person is not responsible for his actions, as he is unable to discern the correctness or incorrectness in his actions. Thus, he is not subject to the punishments that the court would normally administer to someone who had committed the same crimes.
If any crime is committed under force of duress, there will be no legal liability if it is proved that this was the case. Muhammad (saw) said, "My Ummah will be forgiven for crimes it commits under duress, in error, or as a result of forgetfulness." Again here, no punishment will be given for crimes committed under such a state of mind as negating responsibility for a criminal act.
The Types of Punishment
There are four categories of punishment that criminals may be subject to. These are :
1. Hadud : This punishment is the right of Allah (swt), and it is a retribution for seven different crimes, which no-one can forgive. These are
a) Fornication or adultery (zina) : The punishment is 100 lashes for fornication (i.e. pre-marital sex) or stoning to death for adultery (where the fornicator/s is/are married).
b) False Accusation (qadhf) : Where a false charge of adultery is insinuated against a man or woman. The punishment is 80 lashes.
c) Theft (sariqa) : Where theft is the crime. The punishment is cutting off of the hand, provided seven conditions are fulfilled concerning the circumstances of the crime.
d) Consumption of Intoxicants (khamr) : Where the crime is for example drinking wine. The punishment is 80 lashes.
e) Rebellion against the state (al-baghi) : Where individuals or groups revolt against the authority of the state, e.g. motivation of division of the Ummah. The punishment is death.
f) Apostasy (al-irtidad) : Where a Muslim changes his or her belief, and refuses to return after advice is given. The punishment is death.
g) Highway Robbery (hiraba) : Where robbers attack passers by on the open highways. The punishment is cutting off the hand and foot on opposite sides, or death if the crime led to the death of the victim.
In these issues, if someone is proven to be guilty of the crime and all the conditions for the punishment are fulfilled, there is no leniency or pardon for the perpetrator. Muhammad (saw) said, "By Allah, if Fatimah the daughter of Muhammad stole, I would cut her hand."
2. (or qisas): This concerns crimes against the rights of an individual where the victim has the option to demand punishment or forgive the criminal and demand blood money (diyya). It concerns mainly the issues of killing and bodily harm, whether unlawful or accidental. For example, if someone committed murder, the family of the victim could demand that the perpetrator be killed, or they could forgive them and demand blood money. The value of blood money varies depending on the nature of the crime:
a) Blood money from the one who kills with intention is 100 camels, 40 of which must be pregnant, or the equivalent monetary value.
b) Blood money from the one who kills unintentionally i.e. manslaughter, is the equivalent of 100 camels.
It is narrated by Al-Nissai and Darimi that Abu Bakr reported that the Messenger of Allah (saw) wrote to the inhabitants of Yemen and there was in his letter : "Whosoever kills a believer unjustly will suffer retaliation for what his hand has done unless the relatives of the murdered man consent otherwise. And therein it was : A man shall be killed for the murder of a woman. And therein it was : For the murder of a life, there is bloodwit of 100 camels..."
Another hadith narrated by Imam Nissai mentions that every part of the body has blood money, for example, the blood money for the eyes is equivalent of 50 camels.
3. Al-Ta‘azir : This is considered the right of the community. It covers those issues which are not part of the qisas or hadud, but which affect the right of the community such as shouting in the streets, cheating in the market place etc. The judge presiding over the case will study the severity and nature of the crime and prescribe a punishment to match it from his own ijtihad (i.e. study of the Islamic texts).The punishments may range from anywhere between a warning to death. One famous example happened in the time of ‘Umar ibn al-Khattab (ra), where he punished a scholar who gave false testimony. He ordered that the scholar should have his head shaved, his face painted black, and be paraded semi-clothed in front of the people while sitting backwards on a donkey.
4. Al-Mukhalafat : This covers the areas of the rights of the state. Here the crime is committed when a person or group contravenes a law which the state has enacted, such as breaking the speed limit or parking in no-parking areas. The punishment is at the discretion of the judge.
The Law of Evidence
There are various ways in which the perpetration of a crime can be proved in court, but these are restricted only to that which can ascertain definite guilt. For example, circumstantial evidence like fingerprints on a murder weapon are not in themselves sufficient to give 100% certainty of the guilt of the owner of the fingerprints. Therefore, this kind of evidence alone is unacceptable in the Islamic court. There are two types of testimony which can confer definite proof :
a) Eye-Witness Testimony (shahada) : The testimony of someone who has actually seen a crime occurring is a valid evidence. However, this is only applicable in the cases where the trustworthiness of the witness is proven. There is a special court whose purpose is to verify the character, memory, intelligence etc. of any witnesses who are brought forward.
An example of this is in the case of adultery (zina) where the testimony of four eye witnesses are required to prove the crime. Allah (swt) says,
"As for those of your women who are guilty of lewdness, call to witness four of you against them." [TMQ 4:15]
If any of the witnesses fails to bring corroborating testimony, or someone who accuses the crime cannot provide four witnesses, then they will be subject to punishment of qadhf (false accusation).
b) Confession (iqrar) : It is agreed that the criminal’s confession is sufficient for the establishment of guilt and that, on the basis of his or her confession, the appropriate punishment can be inflicted.
Abu Daud narrated that : "A woman of Ghamid came to the Prophet (saw) and said, ‘I have committed a punishable sexual act.’ He replied, ‘Go back.’ She then returned and on the next day came to him again and said, ‘Perhaps you want to send me back as you did to Ma‘az ibn Malik. I swear by Allah that I am pregnant.’ He said to her, ‘Go back.’ She returned to him the next day. He said, ‘Go back until you give birth to the child.’ She left. When she gave birth to the child she brought the child to him, and said, ‘Here he is! I have given birth to it.’ He said, ‘Go back and suckle him until you wean him.’ When she had weaned him, she brought the boy to him with something in his hand which he was eating. The boy was then given to a certain man of the Muslims and the Prophet (saw) commanded regarding her. So a pit was dug for her, and he gave orders about her and she was stoned to death. Khalid was one of those who were throwing stones at her. He threw a stone at her. When a drop of her blood fell on his cheek, he abused her. Muhammad (saw) said to him, ‘Gently Khalid. By Him in Whose hand is my soul, she has repented to such an extent that if one who wrongfully takes an extra were to repent to a like extent, he would be forgiven.’ Then giving command regarding her, he prayed over her and she was buried."
If, however the confessor were to withdraw his or her confession, then the punishment would be stopped immediately, as guilt could no longer be definitely substantiated. This would also be the case if, for example, during the punishment the confessor ran away or began to protest.
Punishment as the Last Resort
It must be noted that the punishments administered by the Islamic State are the last resort in the process of curbing and preventing crime. Islam comes as a deen (way of life) where all the systems work in harmony, making an integrated and perfectly complementary whole.
Thus, the Economic System will ensure that all the citizens of the state will have their needs adequately fulfilled such that no-one need resort to crime to sustain themselves. As well, the Education System will teach the people the mentality of rejecting any kind of crime, all of which are forbidden in Islam, in favor of obedience to Allah (swt). And the Social System will inculcate within the people the mentality of respect and dignity towards the opposite sex, and the segregation between men and women in their daily life will minimize the possibility of crimes in this area.
So in the Islamic State the prevention of crime works on three levels :
1) The Taqwa of the believer : The Muslim has conviction in the rational creed of Islam, which is built upon the study of reality and use of the mind. This gives them the definite foundation for their belief in Islam and motivates them to be subservient to the One and Only True God, Allah (swt).
Crime is a disobedience to Allah (swt). The Muslims longing for the Paradise and their fear of the punishment of Hellfire will prevent them from committing crime.
2) Public Opinion : It is one of the mutual rights and duties of the Muslims that they always look out for and take care the affairs of each other. Thus there will be a constant motivation and encouragement from all sides for people to observe the Islamic conduct.
Crime will be shunned and rejected by the society at large. Criminals and cheats will not be accepted, nor will wealth or any perceived benefits gained illicitly be respected. This pressure from the dominant values in the society will prevent those who are tempted to commit crime from doing so.
3) The Punishments : The last resort is the fear of the consequences of the criminal actions in terms of the punishment.
It is for these reasons that so few incidences of implementation of hadud and other retributions by the judiciary were necessary in the history of the Khilafah.
Conclusion
The Judicial System and Punishments of the Islamic State were implemented throughout every period from the time of the Prophet (saw) in Madinah, when he established the first Islamic state. It settled the disputes between the people, protected the legitimate rights of the community, and ensured that those in authority gave the citizens of the state their dues in accordance with the Shari‘ah of Islam. All this it did in a superior manner, such that it was acknowledged by all the justice and propriety which it conferred upon those who were protected by it.
However, the strength and authority that the judiciary in Islam proffers is not built upon harsh punishments or oppression of the people. Rather, its power lies in the fact that it originates from the Islamic creed ('aqeedah) which is able to answer all the problems that may arise in life, and that its implementation and the obedience to it are considered as ibadat (worship). In this way, the history has shown that in only a relatively small number of cases did the judiciary have to resort to punishment of the people.
The mentality of obedience to Allah (swt) and disapproval of crime that the systems of the Islamic State - which are an integrated whole and of which the judicial system is one part - inculcates into the people is enough to ensure that justice and harmony in society prevail, and that crime is a fringe activity.
Summary : Judiciary in Islam
To live in constant fear of being attacked or robbed is surely an unacceptable state of affairs. The thoughts and ideas that are prevalent in the society around us affect the way people behave and in this society people are constantly motivated to increase their wealth and become prosperous. But, when this is combined with the notion of freedom, a dangerous cocktail is made. People then put no limits for themselves on how to achieve these aims, and crime is an easy way to fulfil them.
This has come to the extent that it is not only a few evil people who resort to preying on the innocent in this way. Crime in Britain is escalating uncontrollably. Burglary, mugging, theft, rape and cheating are all dangers which are taken for granted. It seems that the feeling of the whole society is that ‘if you can get away with it, do it.’ This is even more so among the rich and the powerful, who use their authority mercilessly over the poor and the weak. And so, people feel that almost no-one is trustworthy anymore.
The measures that are taken to counteract this deadly tide are wholly inadequate. Criminals mock at the possible consequences of their actions, and many come out of short prison sentences to offend again. Victims feel that to get justice from the current legal system is virtually hopeless.
All this inevitably results from a judicial system that is man-made and a society which is governed by people’s whims and desires.
In Islam, individuals are naturally inclined away from crime, because their belief and fear of Allah’s (swt) punishment prevent them from committing it. As well, the attitude in society towards crime is one of total rejection. Friends and families will never be pleased or impressed by wealth that is gained in dubious ways. As well, the Economic System will ensure that people are not forced to resort to crime as a means of survival. These factors will automatically check the levels of crime in an Islamic state.
As the last resort, the Islamic State has a comprehensive judicial system which acts as a deterrent to criminals, and to reform those who have gone astray. Harsh punishments for those who are proven to be guilty of crimes are effective measures against it. After all, if you see someone walking around with only one hand because he had been a thief, how would you feel?
Even so, you will see that the aim of Justice in Islam is not to punish the people as much as possible, rather it is to guarantee the rights and the security of the people. The Islamic state successfully did this for over 1300 years, only rarely having to resort to punishing anyone.
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