Philosophy of Islamic Punishments

Criminal Law Theories of Criminal Law

Crime as conduct that is prohibited by the state because of its harm to society, necessarily eliciting state response in terms of retribution

Utilitarianists view punishment as a deterrent to potential offenders, creating a criminal-focused system

Rehabilitationists view punishment as a way to reform or cure the offender, again focusing on the offender rather than the victim

Healing Justice Restorative Justice seeks to develop community-based responses to

crime and violence by using

dialogue

repair of harm

peace-building

to heal victims and bolster social harmony

Restorative Justice Restorative Justice is NOT a method or program but relies on

basic principles of

Repentance Forgiveness Reconciliation

All three are central to many religions and can help mediate between the criminal justice system and multi-religious, pluralist societies

Basis for Islamic Law

There are two primary sources of Islamic law Qur’an

Sunnah/Hadith, the life, sayings, and example of the Prophet Muhammad (PBUH)

There are three methods for deriving the law from these sources Ijma’: consensus of community (democratic)

Qiyas: analogies (precedent-based)

Ijtihad: independent reasoning

Islam and Restorative Justice: Crime

Human nature and Society derive from the nature of God – which is healing in essence: “If anyone does evil or wrongs his own soul, but afterwards seeks Allah’s

forgiveness, he will find Allah oft-Forgiving, most Merciful.” (al-Nisa:110)

“The recompense for an injury is an injury equal thereto (in degree); but if a person forgives

and makes reconciliation, his reward is due from Allah.” (al-Shura:40)

Islam and Restorative Justice: Punishment

Crimes are viewed as offending both God and society in different aspects

Crimes are thus categorized into three main types and require distinct punishments:

HududQuisasTa’zir

Islam and Punishment: Hudud

Hudud – Theft, adultery, slander, rebellion, apostasy, Drinking, Killing

The most serious of crimes whose punishment is mandated by the Qur’an, not by a judge

Islam and Punishment: Hudud

Hudud crimes apply only in a just society, thus such charges have been nulled when society itself was not just

Cutting-off hands for stealing was universally dropped during the reign of the second Caliph due to a famine – i.e. a starving society is not just

In practice, Do the grave punishments for Hudud crimes (death, cutting-off of hands) prevents reconciliation ?

However, the harsh retributive punishments of Hudud crimes and evidentiary burdens may cause the judge

decision-maker to nullify the Hudud crimes and press for Quisas or Ta’zir crimes, which enable more restorative efforts

Islam and Punishment: Quisas

Quisas – murder (voluntary & involuntary), crimes against person

Qur’an does not demand a specific punishment

Qur’an presents a range of penal, compensatory and reconciliatory measures from which to choose, and often suggests relying on healing principles

Islam and Punishment: Quisas

Restorative punishments

Complete Forgiveness:

requires victim to forgive before death

All other cases require Diyya and Sohl and are victim-initiated:

Diyya – offender agrees to monetary payment to victim Sohl – negotiated reconciliation

in the presence of a Wali Amr – appointed guardian

Islam and Punishment: Quisas

Qur’an cautions against relying on retaliatory measures

“We ordained therein for them life for life, eye for eye, nose for nose, ear for ear, tooth for tooth and wounds for equal. Anyone remits the retaliation by way of charity, it is an act of atonement.” (al-Maidah:45)

“O ye who believe the law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any forgiveness is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude. This is a concession and a mercy from God.”

(al-Baqarah: 178)

Islam and Punishment: Ta’zir

Ta’zir – chastisement of bad behavior; applies mostly to violations of private rights All crimes where the Qur’an or Sunna do not prescribe a specific punishment

Rule-makers have discretion on instituting penalties Focus on forgiveness and minimum of

punitive measures

Aim is to rehabilitate the criminal and

restore the public good

Death row in USA

1. If you kill a police officer/ jail warden2. Murder whilst kidnapping, theft,

robbery etc3. Murder during prison escape4. Multiple murders (serial killers)5. Murder of an individual under six

years of age

Purposes of punishment

DeterrenceIf we punish harshly enough, it will put other people off doing the same crime

RetributionIt should be about making someone pay for what they have done, and be seen by others to be punished

ReformPunishment should be about trying to make a person realised that what they did was wrong and make them never want to do it again

ProtectionPrison etc takes the dangerous people out of society and so keeps everyone else safe

The Theory of punishment punishments should be about

CompensationUsing punishment to allow a criminal to make right their wrong to their victim or to society. Community service is an example of this

Purposes of punishment

DeterrenceSome crimes are in the heat of the moment, so the consequences are not thought about

RevengeBut does this work as well for someone who assists someone with voluntary

ReformHow can you tell if someone is reformed? Will society be happy in using tax payers money to pay for a criminal to be retrained as a plumber etc?

ProtectionNot all crimes are dangerous to the safety of others so this wouldn’t always work e.g a debtor

But what are the problems with these theories behind punishing?

CompensationHow can a murderer or drink driver make amends to their victim’s family?

Arguments about Capital Punishment:

Against:o There have been many

cases of the innocent executed

o Countries with execution still seem to have high crime rates!

o It may force some criminals to kill rather than be caught

o Human Right

For:o The death penalty is a

deterrent for those thinking about committing a serious crime

o It means society can rid itself of dangerous people so they can’t be a treat again

o It is cheaper than keeping someone in prison for life

o It is a fair punishment for those who commit the most horrendous crimes

Christianity on Capital Punishment:1. St Paul said “Do not repay anyone evil with evil”

(Romans 12); 2. They also believe in the Sanctity of life – all life is holy

and belongs to God so it is not up to people to take anyone’s life

3. It also goes against the idea of reform 4. The Decalogue says “Do not kill”

However, other Christians believe it is a way of preventing serious crime as:

1. The Old Testament allows capital punishment 2. That peace and order in society is more important than

reforming a wrongdoer3. It has been used in the past by Christians4. “Whoever curses his father or his mother is to be put to

death” Matthew 15 !

There are 2 Muslim views 1. The Qur’an says that it

may be allowed in just causes – murder, adultery and working against Islam

2. “Take not life – which God has made sacred – except for a just cause” (Hadith).

3. Also, Muhammad also sentenced murderers to death and so Muslims may follow his example

4. Shari’ah law allows the death penalty for deliberate murder

However,

1. The Qur’an does not allow it for all crimes, and does allow the criminal to pay a victim or their family ‘blood money’ instead (compensation)

2. Muslims may use the non-religious arguments too

Amnesty International A non-religious organisation who disagree with capital punishment

Amnesty work for justice and to ensure that everyone has Human Rights.

They believe that no matter what someone has done, the death penalty goes against Human Rights.