Islamic Penal System and Philosophy
For a very brief survey of the history of pre-Islamic penal law, Hummurabi Law,
Egyptian Law, Jewish Law, Greek Law and Roman Law have been discussed. Since the
Western standards of human life, moral values, governmental objects, ethical obligations,
ideas of justice, sources and principles or legislations are always changing from
age to age, no persistent characterization of law in Western jurisprudence is possible.
The Western law is a complete failure in defining crime, specifying its nature and
appreciating its permanent standard and character. But when we turn to Islamic law,
it appears superior to the Western law because it contains no ambiguity in its details:
law in Shariah is a legal value established from divine communication which can
be proved either through the text of the Quran or Sunnah or definite consensus of
the Muslim scholars. Islamic concept of crime, like the concept of law, is permanent,
unchanging and unanimous among all the scholars and schools of law: “Crime is an
unlawful act for which punishment has been prescribed by the Shariah by way of fixation
or discretion.”
All the theories of criminality, propounded by the Western Criminologists, originate
from the distorted vision of human nature, based on ‘Trial and Error Method’. According
to Islam, it is absolutely false and baseless to say that some of the human beings
were created with bad natures, or given birth with inherent criminal tendencies.
Human nature, the Quran and traditions emphasise, is absolutely free of all bad
potentials and wrong tendencies, and no criminal characteristic is inherent in it:
“No child is born but conforms to the right nature, then his parents make him a
Jew, or a Christian or a Magian, as a least is born entire in all its limbs (or
without a defect). Do you see one born maimed and mutilated?” Lombrosians and Freudians
throw the responsibility of crime on nature, whereas Islam declares that nature
is perfectly good and the seeds of criminality are not inborn but self-sown during
the life of an individual. The theory of inborn criminality advanced by the Biological
school of criminologists is absolutely wrong and does not find any place in Islamic
philosophy of criminality. As man is free to accept and develop the influence of
right or wrong instinct, criminality cannot be accepted as an ingrained character
of human nature.
In order to decide whether the idea of ‘pre-determined criminality’ either biological,
psychiatric, psychological or in any other name is acceptable to Islam or not, we
are positively obliged to study the concept of ‘human freedom’. As far as the concept
of freedom of man in his acts is concerned, there is a delicate distinction between
‘creation of an act’ and ‘performance of an act’. The view of Muslim Jurists is
that man is neither the ‘creator’ of his deeds nor are his actions divinely ‘predetermined’.
The reality is that all the acts and deeds have been indiscriminately created by
Allah, yet human beings have not been deprived of their free will and choice regarding
commission or omission of their acts. Thus Allah is the Creator of the acts, whereas
man is their performer and operator. Now if it is accepted that the sin of crime
originates from some biological causes due to which the criminal is compulsorily
supposed to possess some brutal characteristics, then no question of free will in
adopting a particular conduct does arise. Thus man cannot be considered a moral
agent, because he is a born criminal and no choice has been left for him to earn
either good or bad behaviour. According to Islamic theory, human conduct is not
predetermined in any sense: it is exclusively self-earned during his moral struggle
since he is free in his acts of commission and omission. This is the only factor
that makes man morally and legally responsible for his acts and deeds. Hence Islamic
concept of human freedom completely nullifies the philosophy of pre-determined criminality.
According to Psychiatric/Pathological Theory, the cause of every criminal act
and delinquency is traced in the form of mental disorder, because it supposes that
all crimes originate from various kinds of psychiatric diseases. This theory leads
us to the contemptuous concept of ‘determined criminality’, which is absolutely
unacceptable to Islam.
Divine justice demands that every adult and sane person should be responsible
for his/her own criminal behaviour. The Holy Quran says in this connection: "On
me is the guilt of my crime and I am clear of that of which you are guilty."
This verse clearly emphasises the fact that the criminal liability can neither
be transferred nor explained away. The Western criminologists have indiscriminately
explained the criminality in such a way that the crime, in spite of being an intentional
and voluntary act, has become absolutely involuntary and unintentional. They have
expressed the phenomenon of crime in terms of determinism; hence, no liability can
be placed upon the individual. Therefore, there can be no justification of punishments,
and the whole penal system becomes a futile and aimless exercise.
Islam has provided the balanced view because the liabilities of the individual
and the society are separately determined. The cause of criminality is appreciated
in such a manner that, instead of justifying the crime, effective means and devices
are suggested to eliminate it from the society.
Regarding psychology of the criminal we must remember that if the external factors,
such as circumstantial influences, opportunities and temptations go on affecting
the internal character and psychology of the person constantly, and no measures
are adopted to reform them, he becomes a habitual criminal, and if those factors
influence the man incidentally, he becomes the occasional one. If proper moral and
spiritual training and adequate socio-economic circumstances are provided to the
individuals, their instinctive urges and mental faculties are organised to function
towards the right direction. Human instincts and desires, when properly fulfilled
in a balanced manner, do not create any tendency of criminality.
Therefore, lack of spiritual and moral training and unsuitability of socio-economic
conditions are the basic factors which may render the psychological make-up of a
person criminal.
Punishments in Islam have been classified into three kinds. Some of the punishments
are fixed as per their nature and quantum while others are variable. This classification
is one of the basic requirements of an ideal penal system to provide justice and
make society a peaceful place. Since the gravity and heinousness of crimes vary
from situation to situation, the respective punishments should also vary to tackle
the crime. Legal philosophers and criminologists believe that it is an essential
requirement for a viable system to be inclusive of both fixed and variable elements
in its penal postulates. In the history of penology, Islam has provided a unique
penal system which perfectly fulfils the stipulated requirements of law as outlined
and elaborated by legal experts and theoreticians.
The author has devoted a chapter to a detailed discussion on the legal structure
of punishments in Islam – Hadd (fixed punishment), Qisas (retaliation) and Ta’zeer
(discretionary punishment) – and their respective constituting elements, conditions,
juristic characteristics and their modes of execution.
Islamic punishments – Hadd, Qisas and Ta’zeer – and their kinds are based on
the arguments of the Quran and Sunnah.
Men are instinctively inclined towards the establishment of a clean and pure
socio. Therfore, these punishments are primarily focused on the achievement of this
primary goal. The charge of the hostile critics of Islam that its penal system is
based on vindictiveness and a deep-rooted sense of vengeance is baseless. The penal
system of Islam is rooted in an objective and dispassionate assessment of criminal
situations, and the severity of the punishment depends on the sanguinity of the
crime. What could be a more just and natural system of punishment! Islam believes
in the creation of an absolutely clean society. It believes in both physical and
moral cleanliness. Therefore, its penal laws are geared to the formation of such
a society. Since Islam is also fundamentally concerned with a peaceful society,
its punishments are expressly oriented to achieve practical results.
Western philosophy of punishments gives us two viewpoints regarding the punishments:
- Punishment as a method of protecting the society by reducing the occurrence
of crimes
- Punishment as an end in itself.
The punishments in Islamic penal system are not prescribed as ends in themselves,
as propagated by the 'Western individualistic philosophy' advanced by Kant and Hegel.
The punishments are, in fact, a means of promoting moral values and general welfare
of human society. The philosophy of Islamic punishments is remarkably different
from and highly superior to the penal philosophy advanced by Western criminologists.
There is no doubt that Islamic punishments are the most consequential as compared
to any system of punishments ever enforced in human society. If a punishment is
definite in preventing the rate and frequency of crime, then even according to Salmond,
a Western authority on jurisprudence, the punishment of burning alive can be awarded
to all the offenders. According to Cordon Gaskell (Reader’s Digest, February, 1967):
“Foreigners consider this amputation for theft a horrible punishment but even they
admit that it has made Saudi Arabia the country with the lowest crime rate in the
world."
The allegation of severity and cruelty against Islamic punishments is, therefore,
absolutely baseless, false and biased: it is rooted either in sheer ignorance or
scholastic dishonesty.
The most serious allegation hurled against Islamic punishments by Western critics
and other adversaries of Islam is that they are uncivilized, that they are designed
not for ordinary creatures of flesh and blood but for extraordinary monsters, that
instead of serving the interests of humanity, they promote the causes of barbarity,
and to implement these punishments as effective measures to check crime is in fact
to strike at the vitals of human civilization.
In present day America, the statistics relating to wife battering and husband
battering are simply staggering. According to September 5, 1983 issue of ‘Time Magazine’
the figures are as follows:
“Nearly 6 million wives are abused (beaten and battered) by their husbands in
any one year. Some 2000 to 4000 women are beaten to death annually. The nation’s
police spend one-third of their time responding to domestic violence calls.”
‘Time’ further states:
“A 1979 FBI report stated that 40% of women killed were murdered by their partner
and 10% of men by theirs (many of the women acted in self-defense).”
Islamic punishments are not only civilized but also comprehensive and highly
effective in checking crimes in society. Man, on account of his constitutional framework
and conceptual configuration, likes neither complete freedom nor totalitarianism.
If he is completely free, without any checks and restraints, he drifts away like
a log of wood on a tempestuous sea and can rarely chart out a sane and sensible
course for his drifting and wayward tendencies. This is the condition of the Western
man who has been spoiled by extremes of freedom, and, consequently, he now depends
more on tranquilizers and 'joy pills' than on any coherent and self-sustaining programme
of life.
The philosophy behind Islamic punishments is that crime is crime and that it
has to be checked. Evil should not be taken lightly, because, if unchecked and unpunished,
it can wrap the entire society in its hideous blanket. This fundamental Islamic
thesis is supported by many Western observers who are appalled by the gigantic proportions
crime has assumed in their societies and the voicing of protest against its tentacular
nature goes far back in to Western mythology and history.
1. Max Lerner
When you choose the lesser of two evils, always remember it is still an evil.
2. Charles Warner
Sin travels faster than that they ride in chariots.
3. Aristotle
A bad man can do a million times more harm than a beast.
The ineffectiveness of the Western penal system is stressed by R. Joseph Novogrod,
Director Criminal Justice Department, Long Island University, New York, in letters
to the Editor Column, 'Time' April 13, 1981: "Speeding realities have left academic
theories and political rhetoric thumbing rides on fantasy highways. Ordinary people
have lost faith and patience in the criminal justice process. Victims have moved
from fear to hate. Unreconstructed criminals have started to rehabilitate society
in their image on release."
Since the Western penal system has totally collapsed to check and curtail effectively
the rising graph of crime, the only effective alternative to minimize crime is the
Islamic system of punishments which can curb it through its creative blend of fixed
prescriptions and discretionary options based on proportionate doses of mildness
and severity.
