Understanding Punishment in Shariah:
Its Role & Principles at a Glance
[By Taha Ghayyur]
Skilfully manipulated display of the imagery of a whip cracking on a naked back of a Nigerian woman and a veil enshrouding a woman’s face in Afghanistan have led many to believe that Shariah, the divine code of Muslim conduct, is in reality no more than a set of principles and practices that are primitive, unrefined and barbaric. As Khurram Murad states, “What to a Muslim is the object of his longing and endeavour, has been very subtly projected as a relic from the dark ages which inflicts punishments and harshness on the criminal that are cruel, inhuman and degrading.”[i] Shariah literally means ‘way to water’—the source of all life[ii]. Therefore, to a Muslim, Shariah signifies the way to God as given by God.
This two-part treatise seeks to objectively explore the forms and role of punishments prescribed by the Islamic Law. An attempt is made to highlight the framework and factors that distinguish the Shariah, as a mechanism of retribution, reform, and deterrence, from the judicial system prevalent today. This study is by no means an apologetic response to the barrage of criticisms that the Islamic text and laws face today.
FOUR FUNDAMENTAL PRINCIPLES OF PUNISHMENT & JUSTICE IN SHARIAH
The Quran certainly does legislate corporal punishment for certain social crimes and it does allow for the option of retribution (Qisas, as it is called in Arabic). In order to comprehend the purpose of punishments in Islam, it is vital that the fundamental principles related to justice and responsibility, are studied.
FIRSTLY, the notion of accepting responsibility for one’s own actions and one’s accountability before God are central to the Quran’s theme. A human being has been called “Vicegerent of God” in the Quran; i.e. his or her purpose of creation on this earth is to be representative of God and to govern it with a sense of justice and equity. For, to fulfil the purpose of his or her creation, one has been granted freedom to choose and act, and a moral sense to distinguish between right and wrong. Unlike secular societies, where the human intellect and freedom have increasingly and virtually become the ultimate authorities, as argued by John von Heyking, a Professor of Study of Civil Society at University of Calgary[iii], Islamic law keeps personal freedom checked with personal responsibility. As Hasan al-Anani elaborates, “The ability of a person to bear his responsibility independently strengthens his freedom, which is the most important aspect of responsibility, both for self-development of an individual and for the development of the community.”[iv]
SECONDLY, a careful survey of the Islamic injunctions would reveal that Shariah’s aim is ultimately to serve human welfare. Salman al-Oadah explains: “Shariah’s general precepts return to universal principles under which falls every aspect of human welfare. The five universal principles of Islamic Shariah are: To preserve one’s life, religion, reason, lineage, and property.”[v] It is interesting to observe that each of the major punishments (also known as ‘boundaries’ or Hudood) prescribed by the Quran, deals with the violation of one of the five universal objectives of the Islamic law. For instance, to preserve life, it prescribes the law of retribution. To preserve religion, it legislates the punishment for apostasy. In addition, to preserve reason, Shariah prescribes the punishment for drinking. To preserve lineage, it stipulates the penalty for fornication and false accusation against a chaste innocent woman. Moreover, to preserve wealth, Islamic penal system specifies the punishment for theft and highway robbery.
THIRDLY, it is imperative to note that punishment in Islam has nothing to do with the notions of atonement, expiation, or wiping away of sins. A crime is essentially an act of injustice to one’s own self. It can be removed only by God, and that He does when a person turns to Him, truly repentant and seeking forgiveness. Between man and God, therefore, the total emphasis is on repentance, and the corporeal punishment can be no substitute for it. At the same time, a crime is also an act against the social order and in this sphere, as some may argue mere repentance cannot be an alternative for punishment. Keeping these two distinctions (i.e. crime against God and crime against society) in perspective, John Burton, Professor of Law and Religion at University of Toronto, provides an interesting insight, “This sounds somewhat like the distinction that the Protestant theologians drew between two uses of the law. The first use was to help the person realize his/her total dependence on God. The second use was to maintain order in society.”
FOURTHLY, penal laws are only a part of a larger integrated whole of the Shariah. They can neither be properly understood, nor justifiably implemented in isolation. Khurram Murad states three points elucidating the place of penal system in the Islamic law:
First, law is not the main, or even major, vehicle in the total framework for the reinforcement of morality; it is the individual’s belief, his God-consciousness and Taqwa, - that inherent and innate quality which makes him want to refrain from what displeases God and do what pleases Him. Second, justice is a positive ideal which permeates and dominates the entire community life; it is not merely an institutionalized means of inflicting punishment. Third, and consequently, a whole environment is established where to do right is encouraged, facilitated and found easy, and to do wrong is discouraged, inhibited and found difficult. [vi]
This is not to say, of course, that the contemporary practice of certain zealots of Shariah has not exaggerated, or even misplaced, the position of punishments in the Shariah. Undoubtedly, the elaborate infrastructure of Islamic penal code, and its implementation, as expounded by the four major classical Muslim jurists and schools of jurisprudence, has largely been manipulated, if not ignored, by the so-called upholders of the Shariah today. One may wonder, in the regions where Shariah is supposedly implemented today, is a punishment executed as a last resort, after all the attempts of counseling, and the investigation of offender’s and victim’s circumstances as well as witnesses, have been exhausted?
The Islamic Shariah provides two different types of punishments: Tazeer and Hud. Tazeer, the lighter of two, means putting to shame or disgracing the criminal for offense he has committed against a member of the society. The objective of this approach is to educate and reform an offender and to facilitate his rehabilitation in the society. Tazeer’s extent and implementation is left to the discretion of a righteous, reliable, and learned judge (Qadi). On the other hand, Hud, literally meaning boundary or limit, is a more severe penalty because it is a “liability incurred as a result of crossing the boundary set by God.” [i] The Hud punishment is given when there is a violation of people’s rights.
Abdur-Rahman Doi, in his encyclopedic work Shari’ah: The Islamic Law, suggests that only a total of seven scenarios exist in which Hud penalties are awarded in the Islamic law; among the Hud crimes are intentional murder, theft, adultery, and highway robbery [ii] . Not surprisingly, it is this portion of the Islamic law that often makes headlines in the media. According to the Muslim jurists, the purpose of Hud punishments is educative, preventive, and, mainly deterrent. Punishments are thus designed to keep the sense of justice alive in the community by a public repudiation of the acts violating the limits set by God. They are expected to build up in the society a deep feeling of abhorrence for transgression against fellow human beings, and therefore against God - a transgression which, according to the Quran, is the root cause of all disorders and corruption in human life
ALLOWANCE FOR RETRIBUTION
Another feature of Islamic penal code is the right of retribution (Qisas). When a person causes physical harm to a fellow human being, Islam gives the injured party the right of equal requital. The Quran explains the concept of retribution as follows: "And the recompense of injury (Sayyiah) is punishment (Sayyiah) equal thereto, but whoever forgives and amends, his reward is due from God, for God loves not those who do wrong." [iii] This procedure is persistently labeled by critics as primitive and uncivilized. However, Murad argues, “In the Islamic view of history, what is primitive has never been necessarily uncivilized, because human nature, inclinations, and divine guidance have always remained the same.” [iv] In the sight of the Quran, the right of retribution belongs to individuals, and not to society or state; this simple shift in responsibility results in a profound change in the whole system of implementing justice. Instead of starting an irreversible process of trial and punishment (involving great deal of time, financial support, and efforts for years), Islamic law initially leaves the ground open for settlement between individuals, without the interference by impersonal bureaucratic machinery, though under no circumstance can the individual take the law into his or her own hands. [v]
It is imperative that the two conditions of retribution are observed: First, if the victim/injured chooses to demand compensation, it has to be equal to the loss incurred, and could never be more. This concept is quite contrary to our own judicial system in the West, where disproportionately high amounts (often millions of dollars) are claimed by the victim in law suites for relatively small injuries or injustices. Second, Islamic law prefers that victim forgives the criminal. Thus under Qisas, punishment is avoidable, because "whoever forgives and amends, his reward is due from Allah..." The ideal way is not to seek vengeance at all, but reconciliation and make offender realize the gravity of his or her offence. Doi makes an insightful observation that the Quran generally adopts the same word for the punishment (retribution) as for the original crime. Thus in the above quoted verse, both the crime and punishment are called Sayyiah (evil); in chapter 2:194, the word used is aggression. The use of the same word for both crime and punishment implies that punishment itself, though justified by the circumstances, is truly speaking nothing but a necessary evil. [vi]
THEFT: A CASE OF HUD AND ITS IMPLEMENTATION
Even the very thought of watching someone lose a hand for committing theft is chilling. However, such sights are rare in an Islamic society for two reasons:
First, as A.R. Doi indicates, statistically speaking, the simple enforcement of Hud penalties itself has a significant deterring effect on the potential offenders, which reduces the crime rate drastically in a society administered by Shariah; he sights the example of Saudi Arabia (despite the distorted ideology of its government) in recent times, and the era of the first generation of Muslims fourteen hundred years ago. [vii]
Second, the procedure of convicting an alleged offender is so elaborate and strict, and involves a host of exceptions and conditions, due to which in most cases the offender’s punishment is reduced from the level of Hud to Tazeer, i.e. the judgment is left to a judge’s discretion.
One such exception is found in the traditions of the Prophet Muhammad (peace be upon him), “Prevent the application of Hud punishment as mush as you can whenever any doubt persists.” [viii] When the benefit of doubt is resolved in favor of the accused supposing in the case of theft, a lesser punishment by Tazeer is applied, because doubt relates to the criteria not the conviction. In the case of adultery (which requires four adult witnesses), for instance, if there is a little doubt, no Hud penalty is given at all. The case of theft and its punishment would demonstrate the difficulties with such convictions. The Quran confers the right of security of ownership of property to every person in an Islamic state, whether Muslim or non-Muslim. A thief may be a male or female. An act of theft is deemed complete by the Muslim jurists when the following six elements are present:
1) the property is taken away secretly;
2) it is taken away with criminal intention;
3) the article stolen should be legally owned by the person from whom it is stolen;
4) the stolen property must have been taken out of the possession of its real owner;
5) the stolen object should have already come under the possession of the thief;
6) the value of stolen property should reach a minimum value set by the government to constitute an act of theft. [ix]
The Hud punishment prescribed by the Quran for a theft is to cut off the thief’s hand. According to the majority of Muslim schools of jurisprudence, items such as food, or of lesser economic value, are not punishable under Hud penalty for theft, and are left to a judge’s discretion. Moreover, only one hand is supposed to be cut off for the first theft, provided that thief:
1) is a Muslim;
2) is an adult;
3) is sane;
4) must not have been compelled by someone else to commit the theft;
5) must not have been hungry while committing theft.
If any of these criteria related to stolen object or the person accused of theft are not met, he or she may be acquitted free or their punishment could be reduced to Tazeer. For instance, under the Islamic Shariah, according to Hanafi school of thought, constituting the majority of Muslim following today, a non-Muslim can not be charged a Hud punishment for stealing [x] . Similarly, in a Muslim state, every individual is entitled to social security through the public treasury where funds are collected from various sources, including the obligatory annual payment made to the poor by the financially sound Muslims. If a citizen is driven by force of circumstances since he could not earn his living for himself or his family, due to lack of employment opportunities or was not taken care of by the central treasury, the society and government will be considered at fault, and no Hud penalty could be applied to the accused. It is keeping with this principle that Umar bin al-Khattab, the second Caliph or ruler of Muslims after Prophet Muhammad (peace be upon him), did not apply Hud punishment to those accused of theft during the period of famine in the state of Madina. [xi]
Furthermore, after the above mentioned conditions are fulfilled, the proof of crime can only be established beyond doubt through the witnesses of two trustworthy males, or the confession of the offender himself, though the accused has every right to deny the charge. Therefore, the judgment is supposed to be swift and the guilt has to be established beyond doubt. In the Shariah there is no concept of ‘guilt by association’, even in the state of war—a recent legal phenomenon due to which countless accused have been suffering for years, behind the bars in the United States, either without knowing the crime they are accused of, or without having their guilt firmly established in the court of law.
Reform vs. Punishment
After the discourse on the forms, place, and role of punishments in the Shariah, a question naturally arises: Why does the Islamic law want to punish, and not reform? To Khurram Murad and A. R. Doi, such innocent inquiry is inevitable, but fallacious. “In a Muslim society,” Murad argues, “every institution is value-oriented and owes a responsibility towards the moral development of every person….Reform is therefore, a pre-crime responsibility and not a post-crime syndrome.” [xii] Islamic law makes an effort to ensure that inducement to commit is minimal. This is, for instance, the reason behind the complete prohibition of consuming intoxicants and intense free-mixing of unrelated members of opposite genders. Part of pre-crime reform involves development of an environment where preventive measures are already in place. Once the crime is committed, however, “the best place for reform is in the family and in society, where a criminal is to live after the punishment, and not in a prison where every inmate is a criminal.” [xiii] While the Shariah protects society by legislating punishments and preventative measures against crimes, it does not marginalize the individual for the sake of society. It does not resort to punishment without first preparing for the individual a situation conducive to a virtuous life. Keeping aforementioned argument in mind, it would indeed be unjust, from the standpoint of Shariah, to allow a hazardous act, such as drinking alcohol, and then punish a person for drinking while driving; it would be even more unfair if the offender is either placed behind the bars or in a rehabilitation center, and is then expected to undergo a painful process of detoxification and ‘reform’.
A brief survey of the place and conditions of applying penal code in the Shariah does illustrate the presence of a concrete framework of principles that constitute and govern the Islamic law. The question of how ‘just’ the mechanism of Shariah is in dealing with crimes and social problems, is irrelevant until and unless an environment of virtue, care, counseling, and justice is prepared. One may obviously argue that in the contemporary practice of the Shariah around the world, a great deal of ‘selective’ implementation is being witnessed; either the vast majority of the Islamic law (other than the penal system itself), including regulations related to family, diet, economics, and education, for instance, are not being fully enforced in reality, or our media is practicing selective journalism all along when portraying the image of Islamic law---- or perhaps a combination of both situations is true.
Moreover, one wonders if Shariah can be practically implemented in our contemporary North American context. While some believe the Islamic laws is incompatible with modernity, a close study of the purpose of Shariah and its implementation throughout the history suggests that the principles of Shariah are universal and are not bound by the limitations of time and culture. It is certainly possible to apply Shariah in the North American society only if three conditions are fulfilled: One, when an environment is developed, provisioned with preventative measures, that is conductive to a just and productive lifestyle, which is often not compatible with a consumer lifestyle. Two, if the Shariah laws are implemented gradually, accompanied by continuous public education and training on the importance of justice, freedom, and one’s purpose on this earth, the way it was revealed and practiced, as a strategy of pre-crime social reform, over a period of twenty three years at the time of Prophet Muhammad (peace be upon him) and the first generation of Muslims. Three, if the punishments in the Shariah are given their due place, only to be used as a last resort, and not to be practiced in isolation from the other major objectives of the Shariah. If a comprehensive approach to Shariah is not adopted then one may expect to witness horrific images of extremist, selective, and literal application of the Islamic text, the likes of which we have witnessed in recent times.
[i] Khurram Murad, Shari’ah The Way of Justice, (Markfield, Leicester: The Islamic Foundation, 1999), 17.
[ii] Abdur Rahman Doi, Shari’ah: The Islamic Law, (London: Ta –Ha Publishers Ltd., 1984), 234.
[iii] The Quran, 42:40
[iv] K. Murad, Shari’ah: The Way of Justice, 17.
[v] K. Murad, Shari’ah: The Way of Justice, 18.
[vi] A. R. Doi, Shari’ah: The Islamic Law, 222.
[vii] A. R. Doi, Shari’ah: The Islamic Law, 260-1.
[viii] A. R. Doi, Shari’ah: The Islamic Law, 224.
[ix] A. R. Doi, Shari’ah: The Islamic Law, 254-5.
[x] A. R. Doi, Shari’ah: The Islamic Law, 254.
[xi] Hasan al-Anani, Freedom and Responsibility in Quranic Perspective, (Indianapolis: American Trust Publications, 1990), 87.
[xii] K. Murad, Shari’ah: The Way of Justice, 19.
[xiii] K. Murad, Shari’ah: The Way of Justice, 19.