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Philosophy of the Concept of Punishment in Islam
Author/Source: MANDIWALA  (mandiwala@gmail.com) Posted by: DR.MOHSIN TARIQ MANDIWALA
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PHILOSOPHY OF THE ISLAMIC CONCEPT OF PUNISHMENT


Bismillahi ar-Rahmani ar-Raheem

In the Name of Allah, the Most Compassionate, the Most Merciful


Since God is the absolute and the sole master of men and the universe, He is the sovereign Lord, the Sustainer and Nourisher, the Merciful, Whose mercy enshrines all beings; and since He has given each man human dignity and honor, and breathed into him of His own spirit, it follows that, united in Him and through Him, and apart from their other human attributes, men are substantially the same and no tangible and actual distinction can be made among them, on account of their accidental differences such as nationality, color or race. Every human being is thereby related to all others and all become one community of brotherhood in their honorable and pleasant servitude to the most compassionate Lord of the Universe. In such a heavenly atmosphere the Islamic confession of the oneness of God stands dominant and central, and necessarily entails the concept of the oneness of humanity and the brotherhood of mankind.

Although an Islamic state may be set up in any part of the earth, Islam does not seek to restrict human rights or privileges to the geographical limits of its own state. Islam has laid down some universal fundamental rights for humanity as a whole, which are to be observed and respected under all circumstances whether such a person is resident within the territory of the Islamic state or outside it, whether he is at peace or at war. The Quran very clearly states:
"O believers, be you securers of justice, witness for God. Let not detestation for a people move you not to be equitable; be equitable - that is nearer to God-fearing." (5:8)
Human blood is sacred in any case and cannot be spilled without justification. And if anyone violates this sanctity of human blood by killing a soul without justification, the Quran equates it to the killing of entire mankind.

"...Whoso slays a soul not to retaliate for a soul slain, nor for corruption done in the land, should be as if he had slain mankind altogether." (5:32)


It is not permissible to oppress women, children, old people, the sick or the wounded. Women's honor and chastity are to be respected under all circumstances. The hungry person must be fed, the naked clothed and the wounded or diseased treated medically irrespective of whether they belong to the Islamic community or are from among its enemies.

When we speak of human rights in Islam we really mean that these rights have been granted by God; they have not been granted by any king or by any legislative assembly. The rights granted by the kings or the legislative assemblies, can also be withdrawn in the same manner in which they are conferred. The same is the case with the rights accepted and recognized by the dictators. They can confer them when they please and withdraw them when they wish; and they can openly violate them when they like. But since in Islam human rights have been conferred by God, no legislative assembly in the world or any government on earth has the right or authority to make any amendment or change in the rights conferred by God. No one has the right to abrogate them or withdraw them. Nor are they basic human rights which are conferred on paper for the sake of show and exhibition and denied in actual life when the show is over. Nor are they like philosophical concepts which have no sanctions behind them.

The charter and the proclamations and the resolutions of the United Nations cannot be compared with the rights sanctioned by God; because the former are not applicable on anybody while the latter are applicable on every believer. They are a part and parcel of the Islamic Faith. Every Muslim or administrator who claims himself to be Muslim, will have to accept, recognize and enforce them. If they fail to enforce them, and start denying the rights that have been guaranteed by God or make amendments and changes in them, or practically violate them while paying lip service to them, the verdict of the Holy Quran for such government is clear and unequivocal:

"Those who do not judge by what God has sent down are the disbelievers." (5:44)


Human Rights In An Islamic State
The Security Of Life And Property:


In the address which the Prophet delivered on the occasion of the Farewell Hajj, he said: "Your lives and properties are forbidden to one another till you meet your Lord on the Day of Resurrection." The Prophet has also said about the dhimmis (the non-Muslim citizens of the Muslim state): "One who kills a man under covenant (i.e., dhimmi) will not even smell the fragrance of Paradise."

The Protection Of Honor:
The Holy Quran lays down:
"You who believe, do not let one (set of) people make fun of another set."
"Do not defame one another."
"Do not insult by using nicknames."
"Do not backbite or speak ill of one another."
(49:11-12)

Sanctity And Security Of Private Life:
The Quran has laid down the injunction:
"Do not spy on one another." (49:12)
"Do not enter any houses unless you are sure of their occupant's consent." (24:27)

The Security Of Personal Freedom:
Islam has laid down the principle that no citizen can be imprisoned unless his guilt has been proven in an open court. To arrest a man only on the basis of suspicion and to throw him into a prison without proper court proceedings and without providing him a reasonable opportunity to produce his defense is not permissible in Islam.

The Right To Protest Against Tyranny:
Among the rights that Islam has conferred on human beings is the right to protest against government's tyranny. Referring to it the Quran says:
"God does not love evil talk in public unless it is by someone who has been injured thereby." (4:148)
In Islam, as has been argued earlier, all power and authority belong to God, and with man there is only delegated power which becomes a trust; everyone who becomes a recipient of such a power has to stand in awful reverence before his people toward whom and for whose sake he will be called upon to use these powers. This was acknowledged by Hazrat Abu Bakr who said in his very first address: "Cooperate with me when I am right but correct me when I commit error; obey me so long as I follow the commandments of Allah and His Prophet; but turn away from me when I deviate."

Freedom Of Expression:
Islam gives the right of freedom of thought and expression to all citizens of the Islamic state on the condition that it should be used for the propagation of virtue and truth and not for spreading evil and wickedness. The Islamic concept of freedom of expression is much superior to the concept prevalent in the West. Under no circumstances would Islam allow evil and wickedness to be propagated. It also does not give anybody the right to use abusive or offensive language in the name of criticism. It was the practice of the Muslims to enquire from the Holy Prophet whether on a certain matter a divine injunction had been revealed to him. If he said that he had received no divine injunction, the Muslims freely expressed their opinion on the matter.

Freedom Of Association:
Islam has also given people the right to freedom of association and formation of parties or organizations. This right is also subject to certain general rules.

Freedom Of Conscience And Conviction:
Islam has laid down the injunction:
"There should be no coercion in the matter of faith." (2:256)

On the contrary, totalitarian societies totally deprive the individuals of their freedom. Indeed, this undue exaltation of the state authority curiously enough postulates a sort of servitude, of slavishness on the part of man. At one time slavery meant total control of man over man - now that type of slavery has been legally abolished but in its place totalitarian societies impose a similar sort of control over individuals.

Protection Of Religious Sentiments:
Along with the freedom of conviction and freedom of conscience, Islam has given the right to the individual that his religious sentiments will be given due respect and nothing will be said or done which may encroach upon his right.

Protection From Arbitrary Imprisonment:
Islam also recognizes the right of the individual not to be arrested or imprisoned for the offenses of others. The Holy Quran has laid down this principle clearly:
"No bearer of burdens shall be made to bear the burden of another." (35:18)

The Right To Basic Necessities of Life:
Islam has recognized the right of the needy people for help and assistance to be provided to them:
"And in their wealth there is acknowledged right for the needy and the destitute." (51:19)

Equality Before Law:
Islam gives its citizens the right to absolute and complete equality in the eyes of the law.

Rulers Not Above The Law:
A woman belonging to a high and noble family was arrested in connection with theft. The case was brought to the Prophet, and it was recommended that she might be spared the punishment of theft. The Prophet replied: "The nations that lived before you were destroyed by God because they punished the common man for their offenses and let their dignitaries go unpunished for their crimes; I swear by Him Who holds my life in His hand that even if Fatima, the daughter of Muhammad, had committed this crime, I would have amputated her hand."

The Right To Participate In The Affairs Of State:
"And their business is (conducted) through consultation among themselves." (42:38)
The "Shura" or the legislative assembly has no other meaning except that the executive head of the government and the members of the assembly should be elected by free and independent choice of the people.

Lastly, it is to be made clear that Islam tries to achieve the above mentioned human rights and many others not only by providing certain legal safeguards but mainly by inviting mankind to transcend the lower level of animal life to be able to go beyond the mere ties fostered by the kinship of blood, racial superiority, linguistic arrogance, and economic privileges. It invites mankind to move on to a plane of existence where, by reason of his inner excellence, man can realize the ideal of the Brotherhood of man Crimes and punishments have their own long history behind them. From inhuman punishments of the monarchical past to the soft policy of the present-day democratic age, the punishments have been showing an upward trend. This is how the so-called humanizing process has yielded results. The spurt in crimes following the economic boom in the West has brought its own strange interpretation from the Western sociologists, who, till only a few days back were ascribing unsatisfactory economic and social conditions to the increasing criminal mentality. The very sociologist now harps a different tune. He unabashedly calls the criminal mentality an essential element of human nature. This clear succumbing to the situation has come as a result of the West's failure to dam the advancing wave of crimes. More sorrowfully the West has committed the folly of taking a few retrograde steps, so to say, to improve the situation merely on the paper. This has been done in order to cut down the burden on national exchequer; which has been claiming an increasingly bigger slice of the financial cake for the maintenance of Police, Jails, and Courts. This foolish tampering with the situation has been affected mindless of the future repercussions by de-listing a few crimes.

 
For example, Norway and Sweden have stolen the march by legalizing homosexuality and lesbianism. West Germany and almost all the Scandinavian countries have respectively lifted the ban on import and circulation of pornographic literature. England and Italy have allowed abortions (either for a mother or spinster). The fresh blow to the existing ethical values has come from Spain where, according to an approved bill of cabinet, adultery will no longer be a crime. In sharp contrast to this situation, the Islamic world presents a peaceful and much cleaner society. When we cast a glance at the Muslim countries where Shariah is applied, crime rate has become negligible to the extent that Saudi Arabia reported just one murder in one year. This can wholly be attributed to the deterrent punishments of Islam. Turning a blind eye to these facts, the West is solely guided in its criticism by the superficial understanding of Islamic code.

 
Primarily, the emphasis of Islamic code is on preventing the crimes by prescribing harsh punishments while contemporary code deals with a criminal individually. The treatment thus meted out does not consider the impact of the crime and its aftermath but simply suggests a punishment to be awarded to criminal.

 
The detailed study of the Shariah penal system reveals a few more salient features of it which are unique in their character and kind. One can find blessings of the Shariah while glancing through the pages of history. A few basic qualities of Islamic system shows the marked difference from the European legal system.

 
In order to avoid any discrimination between rich and poor, Shariah enjoins similar treatment to all in the event, of crimes of social and moral nature. Islam does not prescribe monetary fines or penalties. Had this been the case, the wealthy people would have easily got rid of punishments after paying the required sum as fine. It could have promoted criminal mentality among wealthy sections of the society. This equality before the law in Islam has deterred even the rich people to indulge in crimes. Western society today suffers from the same deficiency. The provisions of their legal system have given the rich society a license for crimes.

 
Another disapproved form of punishment is imprisonment. It isolates the offender from the society and does not arouse in him a feeling of shame or repentance. Contrary to this, the modern prisons have served as a rendezvous for all sorts of criminals. After their release an offender is found to be far more skilled in his art.

 
Punishments like amputation of hand, whipping, stoning to death and beheading have the dual impact of preventing the individual from committing the same crime in future and serving a stern warning to others. Treatment meted out to an ex-convict plays the greatest role in rehabilitating him. West's scornful attitude towards an ex-convict has resisted his return towards a dignified life. One's conviction in life should not become a stigma to his name. He should be allowed to lead a normal life. Constitutions of the modern democracies contain clauses which disqualify an ex-convict from contesting for seats in legislature, holding key positions in administration, and public offices.

 
Islamic Penal Code sternly prohibits this dual disability for an ex-convict. Once the official punishment ends, the convict is a dignified citizen of the state enjoying civil rights in its totality. He need not carry any appendage of conviction with his name. No hurdles would be placed in his economic or social progress on the basis of his conviction. A return to the normal life is thus facilitated by the whole society and state under Shariah. The Prophet strictly admonished his friends from giving any bad names to Ma'izz Bin Aslami and Ghamiddiya, two sahabi who, out of fear of punishments in the life hereafter, self-confessed the sin of adultery and wore stoned to death. The Prophet called their confession as the most courageous and noblest act. This is how Islam refines the society. If you assure the criminals of a respectful place in society, there is no reason for them to hesitate from turning a new leaf in their lives. In most cases, it is fear of contemptuous treatment by society that deters the convict from becoming a normal citizen. Shariah adopts a realistic and practical attitude towards life. In life, one cannot depend too much on the moral and spiritual qualities of good individuals. If all men were equally spiritual, and if all could fear Allah, then there would be no need of law. But most men are not afraid of Allah so much as they are afraid of their society, public opinion and the punishment for evil-doing which they receive from the court of law. Therefore, the fear of Allah is and will remain confined to a few persons. Most men will continue to avoid committing any crime not from the fear of Allah and the Day of Judgment but from the fear of men and the fear of punishment by the authority. Since the Shariah seeks to build society and a political community, it has to take account of all kinds of men, good or bad, virtuous or vicious.
For men fearing Allah, it inculcates love and charity and holds out the promise of reward in the hereafter, but for the greater number of people in whom the fear of Allah is not very strong, it prescribes laws. and lays down punishments. Thus it makes use of both moral and legal sanctions because it realizes that both morality and law are necessary for political and social life.
It is merely an allegation that harsh Islamic laws would convert the society into a den of crippled and indolent persons. It is mainly due to the partial understanding of the Islamic System. Islam solves the social and economic problems of a man on a priority basis so that one should not be stimulated to commit crimes due to social and economic injustices. Secondly, the Islamic punitive measures are implemented through a gradual process. With the advent of the Prophet and his party at Medina, the Islamic Penal Code was not suddenly clamped over the city. Had it been the 'case the results would have been the same what critics allege.

 
The Prophet enforced the Islamic order in 10 years of time after due training and education of masses. The Qur’an, itself imposed total prohibition in three phases. Crime detection has also its own effect on criminal psychology. Islam has a distinctive advance here too over its Western counterparts, Mere suspicion is no ground for punishing a criminal until crime is reported through a reliable source by the prescribed number of witnesses. In the event of a person being apprehended on inadequate evidence and, later on, the charges having been proved false the integrity of that individual would be impaired. The present codes do not guarantee such safeguards. An individual may be acquitted. after a lengthy process of humiliations. This generates an atmosphere of suspicion where every individual lives as a suspect. Similarly, Islam prohibits ‘crime digging’.

 
These are a few virtues of Islamic Penal Code. In the light of these, the Prophet said that a time would come when one will traverse the distance between Yemen and Hadrmaut, without any danger to his life and property.

 
This came out true in the later years when Islam conquered the whole area. Its impact may still be seen in countries where Islamic law is even partially in force. In the so called highly advanced countries like the United States of America, it is dangerous even to move out of one's residence after it is dark.

 
More interesting is the way the criminologists attribute reasons of spurt in crimes and suggest measures to check the rate. A study of recent crime report from France will reveal the approach the Westerners now adopt to tackle the grim situation, prevailing in western countries.

 
A ten member committee headed by the Minister of Justice, M. Alain Peyreffite indicated that according to 80% of the French people the violence has been mounting. The committee came out with more disturbing statistics. Between 1967 and 1976 armed robberies against other institutions (called hold-ups) increased twenty fold. The murder rate in France remained below one per cent per 100,000 inhabitants compared with approximately 10 in one hundred thousand in the United States.

 
The report attributes the growth of criminal acts to urbanization. It says 60% of violent crimes occur in Paris and five other large urban centers and calls for a return to smaller, more cohesive communities. The conclusion is reached that cities must not be allowed to surpass a population of 200,000 if they have yet not attained it. The committee says, it had formed a link between rising crimes and the height of apartment buildings and notes that housing projects with 1,000 units of six story have one third fewer criminal incidents than a 1,000 unit project that was higher than six stories. The report also contends that the long distance between homes and places of employment foments a sense of alienation that contributes to crimes.

 
Punishment and Legal Penalties:
Legal penalties are specified in the Qur’anic Text for: (a) Murder, (b) Theft, (c) Adultery, (d) Cluminous accusation of adultery, and (e) Offence against public security. No apology is needed for death being the Islamic penalty for premeditated murder, its very severity makes the punishment a deterrent, especially if one considers how simple and expeditious judicial machinery is in Islam and how rapid the procedure and beneficial its effects for social tranquillity and the protection of human lives.

 
Theft, except for the doubtful cases, for example stealing prompted by starvation, its punishment is amputation of the hand. Stealing is too frequently perpetrated by force and often entails murder of the victim. One wonders whether, in such case is it is better to have more pity on the hand of the thief than on the life of the victim.

  
Punishment for Adultery:
The penalty for adultery for a married person is stoning to death, (to be witnessed by a crowd of people) but there are very strict injunctions regarding the proof. The offence must be testified to by four witnesses of unimpeachable veracity. And, if a person levels a charge of adultery against someone and is unable to bring four such witnesses, he is liable to be punished with, eighty strokes of the whip. By enjoining such punishment, Islam has prevented dislocation of the family, and confusion with regard to paternity. More important it establishes the basis for a peaceful life in human society. Peace at this price is not at all costly compared to modern measures introduced and expenses incurred for a peaceful life but it is no where to be found because the murderers, the thieves, the fornicators and others get away too easily. They are a constant source of fear and disturbance because of the potential threat to life and property. The Shariah provision nips the evil in the bud with a firm hand and puts down its foot strongly to stop mischief and to ensure peace to the society. Islamic punishments are, therefore, the most suited to bring about peace and peaceful conditions. Islam deals with the culprit rather heavily in the interest of his would-be victims.

 
The general public and many academics have several preconceived notions about Islamic Law. One such notion is that Islamic judges are bound by ancient and outdated rules of fixed punishments for all crimes. This paper explores that idea and looks at other myths in an attempt to present Islamic Law from a non-biased view of Shariah Law.

  
Some contemporary scholars fail to recognize Islamic Law as an equal to English Common Law, European Civil Law and Socialist Law. A few academics have even attempted to place Islamic Law into the Civil Law tradition. Other writers have simply added a footnote to their works on comparative justice on the religious law categories of Islamic Law, Hindu Law, which is still used in some parts of India, and the Law of Moses from the Old Testament which still guides the current thought of the Israeli Knesset (Parliament) today. This survey will attempt to alter some of these inaccurate perceptions and treatments in both the contemporary literature and academic writings.

 
Islamic Law and Jurisprudence is not always understood by the western press. Although it is the responsibility of the mass media to bring to the world's attention violations of human rights and acts of terror, many believe that media stereotyping of all Muslims is a major problem. The recent bombing at the World Trade Center in New York City is a prime example. The media often used the term "Islamic Fundamentalists" when referring to the accused in the case. It also referred to the Egyptian connections in that case as "Islamic Fundamentalists." The media has used the label of "Islamic Fundamentalist" to imply all kinds of possible negative connotations: terrorists, kidnappers and hostage takers. Since the media does not use the term "Fundamentalist Christian" each time a Christian does something wrong, the use of such labels is wrong for any group, Christians, Muslims, or Orthodox Jews.

 
A Muslim who is trying to live his religion is indeed a true believer in God. This person tries to live all of the tenets of his religion in a fundamental way. Thus, a true Muslim is a fundamentalist in the practice of that religion, but a true Muslim is not radical, because the Qur'an teaches tolerance and moderation in all things. When the popular media generalizes from the fundamentalist believer to the "radical fundamentalist" label they do a disservice to all Muslims and others.

 
No Separation of Religion and State
To understand Islamic Law one must first understand the assumptions of Islam and the basic tenets of the religion. The meaning of the word Islam is "submission or surrender to Allah's (God's) will." Therefore, Muslims must first and foremost obey and submit to Allah's will. Mohammed the Prophet was called by God to translate verses from the Angel Gabriel to form the most important book in Islam, the Qur'an, Muslims believe.

 
There are over 1.2 billion Muslims today worldwide, over 20% of the world's population. "By the year 2004, one out of every four persons on the planet will be a Muslim," Rittat Hassan estimated in 1999. There are 35 nations with population over 50% Muslim, and there are another 21 nations that have significant Muslim populations. There are 19 nations which have declared Islam in their respective constitutions. The Muslim religion is a global one and is rapidly expanding. The sheer number of Muslims living today makes the idea of putting Islamic Law into a footnote in contemporary writings inappropriate.

 
The most difficult part of Islamic Law for most westerners to grasp is that there is no separation of religion and state. The religion of Islam and the government are one. Islamic Law is controlled, ruled and regulated by the Islamic religion. The theocracy controls all public and private matters. Government, law and religion are one. There are varying degrees of this concept in many nations, but all law, government and civil authority rests upon it and it is a part of Islamic religion. There are civil laws in Muslim nations for Muslim and non-Muslim people. Shariah is only applicable to Muslims. Most Americans and others schooled in Common Law have great difficulty with that concept. The U.S. Constitution (Bill of Rights) prohibits the government from "establishing a religion." The U.S. Supreme Court has concluded in numerous cases that the U.S. Government can't favor one religion over another. That concept is implicit for most U.S. legal scholars and many U.S. academicians believe that any mixture of "religion and state" is inherently evil and filled with many problems. They reject all notions of a mixture of religion and government.

 
To start with such preconceived notions limits the knowledge base and information available to try and solve many social and criminal problems. To use an analogy from Christianity may be helpful. To ignore what all Christian religions except your own say about God would limit your knowledge base and you would not be informed or have the ability to appreciate your own religion. The same is true for Islamic Law and Islamic religion. You must open your mind to further expand your knowledge base. Islamic Law has many ideas, concepts, and information that can solve contemporary crime problems in many areas of the world. To do this you must first put on hold the preconceived notion of "separation of church and state."

 
JUDGE (QAZI)
Another myth concerning Islamic Law is that there are no judges. Historically the Islamic Judge(Qazi) was a legal secretary appointed by the provincial governors. Each Islamic nation may differ slightly in how the judges are selected. Some nations will use a formal process of legal education and internship in a lower court. For example, in Saudi Arabia there are two levels of courts. The formal Shariah Courts which were established in 1928 hear traditional cases. The Saudi government established a ministry of justice in 1970, and they added administrative tribunals for traffic laws, business and commerce. "All judges are accountable to God in their decisions and practices" (Lippman, p.66-68).

 
One common myth associated with Islamic Law is that judges must always impose a fixed and predetermined punishment for each crime. Western writers often point to the inflexible nature of Islamic Law. Judges under Islamic Law are bound to administer several punishments for a few very serious crimes found in the Qur'an, but they possess much greater freedom in punishment for less serious (non-Had) crimes. Common law is filled with precedents, rules, and limitations which inhibit creative justice. Judges under Islamic Law are free to create new options and ideas to solve new problems associated with crime.

PUNISHMENT FOR JUSTICE
Punishments have always been considered an integral part of the concept of justice. Indeed, a common man would find it hard to think of justice as something very different or separate from rewarding or punishing people according to how well or badly they observe the body of the mutual rights and obligations obtaining in their society. But if the concept of punishment is universal, the controversies surrounding it are nonetheless intense. We shall now look at some basic Islamic principles concerning punishments.

BASIC PRINCIPLES
Man is responsible for his actions: this simple truth provides the whole basis for the justification of punishment. For, to fulfill the purpose of this creation, he has been granted the freedom to choose and act, and the moral sense to distinguish between right and wrong. Responsibility goes with knowledge and freedom. Punishment cannot therefore be meted out to anyone for someone else’s actions, for acts intended but not performed or for acts done under duress or while not of sound mind. Everyone must be equal before the law and their guilt must be established by the due process of justice.

REPENTANCE AND PUNISHMENT
Punishment in Islam has nothing to do with the notions of atonement, expiation or wiping away of sin. A crime is essentially an act of injustice to one’s own self, a sin against God. It can be wiped away 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 punishment can be no substitute for it. But a crime is also an act against the social order and in this sphere mere repentance cannot be a substitute for punishment which is a means of protecting and strengthening the society.

PROPORTIONAL JUSTICE
It is important to note that there is no concept in Islam of the punishment being exactly and justly proportional to the crime. Absolute and truly proportional justice would require the exact and complete evaluation of such complex factors as intentions and motives, the surrounding circumstances, the causes and repercussions- factors which human judges must consider but cannot evaluate fully and which only God, in the new moral order to be set up in the life after death, can measure. Islamic punishments are not therefore to be judged on the scales of proportional and full retribution. They are however laid down by the Being who is infinitely Merciful and Wise, and are therefore more suitable for the particular crimes than what can be prescribed by any human legislatures or judges.

PART OF A WHOLE
Most importantly, punishments are only a part of a vastly larger integrated whole. They can neither be properly understood, nor successfully or justifiably implemented in isolation. 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. All men and women are enjoined, as their foremost duty, to aid, exhort and commend each other to do good and to avoid evil.

FUNCTIONAL NATURE
Penalties in Islam are more of a functional nature, to regulate and deter. God has laid down a body of mutual rights and obligations which are the true embodiment of justice. He has also laid down certain bounds and limits to be observed and maintained for this very purpose. If men and nations desire to move in peace and safety on the highways of life, they must stick to the ‘traffic lanes’ demarcated for them and observe all the ‘signposts’ erected along their routes. If they do not, they not only put themselves in danger, but endanger others. They therefore naturally make themselves liable to penalties –not in vengeful retribution – but to regulate the orderly exchanges in man’s life in accordance with justice.

It is a significant contribution of Islam that these penalties are called hudud (boundaries) and not punishments: they are liabilities incurred as a result of crossing the boundary set by God. An important consequence of these hudud having been laid down by God, and not by man, is that it is beyond human authority to reduce or supercede them out of a sense of mercy greater than that of God; nor can a tyrant or autocrat add to them out of a greater sense of strict justice. For no one can be more merciful or wiser or more just than God himself.

Another important function which these punishments serve is educative, and thus preventive and deterrent. The Qu’ran alludes to this aspect when it describes them ‘as exemplary punishment from God’ (al-Ma’ida 5:38). 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 Qur’an, is the root cause of all disorders and corruption in human life.

RETRIBUTION - QISAS
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." 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.” 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.

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.
 
Apart from punishments for transgressions like extra-marital sex, theft, libel and drinking, the Qur’an also provides for the principle of qisas. When a person causes physical injury or harm to a fellow human being, Islam gives the injured party the right of equal requital – the well-known principle of ‘an eye for an eye, a tooth for a tooth’. This procedure is persistently labeled by critics as primitive and uncivilized. In the Islamic view of history, it is worth pointing out, what is primitive has never been necessarily uncivilized. The first man was given all necessary knowledge and guidance, and though he may have been technologically backward compared to the twentieth century, he definitely was not humanly backward. Uncivilized is what man thinks and does in deviating from the divine order.

In the eyes of the Qur’an ‘in retribution (qisas) lies the source of life for you’. The reasons are obvious. First, the right of retribution belongs to individuals, not society or the state; this simple shift in responsibility results in a profound and far reaching change in the whole system of implementing justice. The state does not have to intervene every time two human beings are involved in a dispute. Thus, instead of starting an irreversible process of trial and punishment, it leaves the ground open for settlement between individuals, without interference by impersonal bureaucratic machinery, though under no circumstances can the individual take the law into his own hands.

The injured person in his turn may forgo his right to retribution by forgiving, or may agree to accept a monetary or token recompense instead. The Qu’ran, in fact, highly recommends the act of forgiving. Thus, under qisas punishment is avoidable without burdening the executive or judiciary with the dilemma of whether to exercise mercy. As against a court which must act according to law once a case is brought before it, an individual is free to act as he wishes. Justice has to be blind, but an individual may take circumstances into account, and suspend judgement in the hope of being forgiven by God in the hereafter. Very few realize hat the principle of qisas even allows capital punishment to be avoided.

MERCY AND LENIENCY
Having prescribed punishments and imposed strict and meticulous, though not impossible, conditions of evidence, Islam has built in a whole range of principles and precepts which reflect not a frenzied desire to flog and stone but a compassionate urge to avoid and eschew. Islam does not allow either the state or individuals to spy upon people unless well-founded suspicion exists that a crime is being committed or a fellow human being’s rights or interests are in jeopardy. Nor is it obligatory to report every crime. Where possible, settlements outside court are preferred. The punishment is swiftly over; the guilty man and his family do not have to live with the kind of lengthy public stigma that they would have had to endure in the case of a prison sentence at the end of a trial. The imposition of divinely prescribed hudud enhance, and not diminish, the individual’s dignity and stature in society and before God.

ALLEGED CRUELTY
As to the alleged cruelty of physical penalties, one wonders if to deprive a man of his freedom -- his most precious and valuable possession – and his right to act and continue to make moral choices , to live with his family, to work and support them is not more cruel. Indeed, a prison term can inflict untold misery on innocent people whose lives are intertwined with the life of the prisoner. Prison becomes a school for hardening criminal behavior and a breeding ground for recidivism. Why should it be considered more cruel for a man found drug trafficking to be given ten lashes than to be sent to languish in prison for, say, ten years.

REFORM SYNDROME
Why does Islam want to punish and not reform? The question is fallacious, for in Islam every institution of society is value oriented and owes a responsibility towards the moral development of every person from the cradle to the grave. Reform is therefore a pre-crime responsibility and not a post-crime syndrome and nightmare. Islam makes every effort to ensure that inducement to commit crime is minimal. Once the crime is committed, the best place for reform is in the family and in society, where a criminal is to live after punishment, and not in a prison where every inmate is a criminal; unless of course a society considers itself to be more corrupt and less competent to effect reform than a jail! Against this, the ‘modern, enlightened’ approach is to provide every inducement to crime by building a society based on conspicuous consumption; to make society, education and every other institution ‘value – free’ and then to try to reform a criminal by segregating him and keeping him in a prison.

PROCEDURAL JUSTICE
Sentences in Islam are certainly harsh, but still more strict and severe are the procedures laid down to be observed before a man may be convinced. These procedures are modeled on the paradigm of the Day of Judgement, when even God, though he is All-knowing, and Just, will not punish anybody unless He establishes his guilt. To let nine criminals go free is preferable to convicting one innocent man, said the Prophet.

The Shariah is an integrated homogenous whole. Once one understands its basic concepts, objectives and framework, one cannot but conclude that it is capable of creating the most human and just society, a peace and blessing for mankind. Difficulties only arise when critics try to measure the ocean of divine knowledge, wisdom and justice with their own thimble of pedestrian criteria and standards.

QIYAS (Analogical Deduction)
Literally Qiyas means measuring or ascertaining the length, weight or quality of something. Qiyas also means comparison to establish equality or similarity between two things. In the language of Usul, Qiyas is the extention of a Shariah ruling from an original case (Asl) to a new case (Far') because the new case has the same effective cause (Illah) as the original case.

The original case is regulated by a text of the Quran or the Sunnah and Qiyas seeks to extend the original ruling to the new case. The emphasis of Qiyas is identification of a common cause between the original and new case. Jurists do not consider law derived through Qiyas as a new law. However, for all practical purposes , Qiyas leads to new ruling on a different matter.

Qiyas is a methodology developed by jurists through which rulings in new areas are kept close to the Quran and Sunah because new rulings are based on the Illah (causes) discovered in the legislation of the Quran and Sunnah. Rulings on new areas could diverge a lot, if Qiyas was not applied. This is a major justification for validity of Qiyas.

Qiyas is a rationalist doctrine (because intellect is largely used to find out the Illah), but in Qiyas personal opinion (Ra'y) is kept subservient to divine revelation (in that Illah is discovered from the text of the Quran and the Sunnah). Qiyas does not change any law of the text (Quran or Sunnah) for expediency. Qiyas as a methodology means that the jurists accept that the rules of Shariah follow certain objectives (Maqasid) which are in harmony with reason. Zahiris (a group of literalist scholars) do not accept Qiyas. However, majority is right on this point.

Qiyas does not give rise to certainty. Qiyas is therefore speculative. Law derived through Qiyas can not be of same authority as that of textual ruling (of Quran or Sunnah). There can be difference of opinion on the law derived through Qiyas, as is the case with almost all Ijtihadi law. (See examples of Qiyas in P. 199-200 in Kamali's book). The essential requirement of Qiyas are Asl (original case, on which a ruling has been given), Hukm (ruling on the original), Illah (cause of ruling in the original case) and Far' (new case on which ruling is to be given). In the case of prohibition of wine drinking (Maida : 90) if it is to be extended to narcotic drugs. The requirement of analogy would be fulfilled in the following manner.

Asl Far' Illah Hukm . Wine drinking Taking narcotic drugs In toxicating Effects Prohibition.

One condition of Asl (the subject matter of original ruling) is that the Quran and Sunnah are the source the Asl (many scholars do not consider Ijma to be basis of Asl). According to majority, one Qiyas can not form Asl of another Qiyas. However, Maliki jurist Ibn Rushd thinks a Qiyas can be basis for another Qiyas. Modern jurists Abu Zahrah and Muhammad Al Zarka agree. Minority seems to be right as long as it does not contradict Nusus (clear texts or rulings) of the Quran and Sunnah.

Conditions pertaining to Hukm (a ruling in the original case) are :
It must be a practical Sharii ruling (Qiyas does not operate in the area of belief).
Sharii ruling must not be an abrogated one,
The Hukm must be amenable to understanding through human intellect (see examples in the text book).
Hukm must not be limited to exceptional situations (in that case it can not be basis of Qiyas, such as the prohibition of marriage of widows of the Prophet (SM) with others).

Qiyas is operative or extendable in Hadud (prescribed penalties), according to majority.

New case on which ruling is to be given (Far') must not be covered by Nasus (texts). Qiyas ma'al tariq (analogy with discrepancy) is not permitted (see example in Kamali).

The effective cause (Illah) must be :
Munasib (proper, according to Mujtahid or scholar of Fiqh)
It must be a constant attribute (mundabit)
It must be evident (Zahir, see example in Kamali)

According to majority, Illah must be muta'addi (that is transferable to other cases. Some hold different view with regard to Tadiyah (tranferability). The effective cause must not run counter to Nasus. The effective cause may be clearly stated in the nass (text) but such cases are not many (Ref. Quran : 4:43 , 59:7; and also reference of the hadith in Kamali).

Arabic expression such as Kay-la (so as not to), li ajli (because of ), li (for), fa (so), bi (because), anna, inna, also indicate Illah in many cases (Ref. 5:38, 4:34). The word "Sabab" (cause) is also used as a substitute for Illah. However, some scholars make distinction between the two. The distinction is not substantive or even clear. However, Illah has become popular in usage.

When the Illah is not clearly stated in the nass, it is the duty of the Mujtahid to find out the Illah (reason) for the ruling of the text through Ijtihad. This is done by a 2-stage process. The starting point is "Takhrij al manat" (extracting Illah - manat is another word for Illah).

Now Illah for a ruling may appear to be a few instead of one (see the example of Illah of prohibition of riba in P.214 in Kamali). In that case the Mujtahid proceeds to eliminate the improper Illah and find out the proper (munasib) Illah. This process is called tanqih al manat (isolating the Illah).

Tahqiq al manat consists of investigation of the presence or otherwise of Illah in the new case (far') where the ruling is to be extended. (whether analogy can be extended to pick-pocket from thief or whether herbal drink has the same Illah as wine).

One classification of Qiyas is (a) Qiyas-al-awla, (b) Qiyas-al-musawi and (c) Qiyas-al- adna. Qiyas al-awla (superior Qiyas) means where the effective cause is nore evident in the new case (far') than the original case (asl). [Ref. 17:23; see also text book]. In Qiyas-al-musawi (analogy of equals), Illah is present in Asl and Far' equally (Ref. Quran- 4: 2 ). In Qiyas-al-adna (analogy of inferior), Illah in Far' is present less clearly than the original case (Asl). This Qiyas also is accepted by Usulian.

There is another classification of Qiyas into Qiyas jali (obvious analogy) and Qiyas Khafi (hidden analogy). Qiyas is accepted by majority including 4(four) Sunni schools and Zaydi Shias. Proofs of Qiyas are in verse 59:2 of the Quran, indications in verses 4:105, 2:79 and 59:7. Sunnah also supports Qiyas in that Ijtihad has been referred to in Sunnah and Qiyas is the most important method of Ijtihad (see Kamali, proof of Qiyas, see also discussion under "Talil" in the Chapter on Quran in Kamali).

Arguments against Qiyas have been put forward by mainly Zahiri school. They contend that Quran 6:89 ('we have neglected nothing in the Quran') is against Qiyas. They also say, Qiyas is based on Illah which is based on conjecture. They also say Quran 49:1 is against Qiyas. All these are very weak arguments and most of Ummah could not accept them. Majority hold that Qiyas is applicable in Hadud (prescribed penalties). Hanafis say that Qiyas is applicable to "Tazir" penalties (penalties which have been laid down by Parliament/Courts - not by Quran and Sunnah specifically) but not to Hadud (punishments prescribed in the Quran and the Sunnah). Hanafi opinion in this regard is more cautious.

Qiyas is redundant where Nass is there, according to majority. Some hold that Qiyas (which is speculative) can specify or qualify speculative of the Quran and the Sunnah (see Kamali). Some Ulama hold that Qiyas can take priority over Ahad hadith, if Qiyas is supported by other strong evidence. Qiyas will continue to be a major instrument of Ijtihad in future, along with Istihsan and Maslaha (will be discussed later in the course).

  
Today’s Muslim societies are not model societies — they are infested with ills and evils – yet the comparatively stable family life, absence of delinquency, low crime rates, much greater freedom from drugs and alcoholism, warmth of brotherhood, generosity and mutual aid and help – all these are the legacies of that divinely given code of life, the way to Justice, which once they used to adhere to, and yearn to have the change to return to – the Shariah.

  
Devout Muslims are policed by taqwa (fear of Allah), they have iman, they believe in the Day of Judgement and know that everything they do is seen by Allah Ta'ala. This stops them from evil.Muslim society is policed by the pillars of Islam. If the Ummah does Zikr of Kalimah Shahadah, prays salah five times a day, gives Zakah, fasts in the month of Ramadan and plans to go for Hajj, then very law abiding and socially responsible citizens will be produced. Such a society will be full of faith, and full of respect for the basic values of Islam, such as chastity, sobriety, respect for life and property.

 
Islamic society is policed by the family. Marriage is a highly valued institution in Islam, it is sunnah to marry, and getting married is to preserve half of your faith. And a Muslim family is a disciplined unit, under the authority of the parents. The juvenile delinquent is unknown in Islamic society. The juvenile delinquent is the product of a society where the family has collapsed, as in modern Britain and U.S.A.

 
Islamic society needs no policing because Muslims are sober. The greatest cause of violent crime in the West is alcohol. A devout Muslim society is sober. As a result, in a Muslim society there is not the high level of violence and murder that exists in the alcoholic West.

 
Finally, a Muslim society does not need policing because it is a just society. Islamic punishments are suspended in the case of poverty and want. Islam forbids racial discrimination which condemns masses of people to permanent injustice. Islam commands that even slaves be treated equally.

 
ISLAM is the fastest growing religion in the world and yet it is the most misunderstood religion in the West. The popular demand for the application of Shariah the Islamic law- in various Muslim countries is another great 'threat' to secularism and it has aroused suspicion, anger, jealousy and hatred among the Western ruling elite who want to dissuade people from sympathizing with Islam and to vilify anything connected with Islam. The theme of this essay involves some common misconceptions and false charges leveled against the Islamic law in general and its penal policy in particular. Many volumes have been written by Islamic scholars to rebut and refute these allegations, but in the course of this discussion I will try my best to restrict myself to the specific points raised in the rubric of this essay.

 
We have seen the case of some Modernist Muslims who fell prey to the criticisms of the West and tried to explain away certain provisions of the Shariah to make it easily acceptable to Western standards, but without any success. The issue of the punishment for theft is a good illustration; Sir Syed Ahmad Khan not only believed that "Western prisons were vastly superior to any Islamic alternative" but he also argued that imprisonment is the most appropriate punishment for theft and other hudud offences because at the time of the revelation of the Qur'an, "there was no prison or isolated island for the criminals". Others argued that "in a truly Islamic society the chopping of a hand would not arise at all" or the "punishment of 'cutting off' the hand is only in cases of offenders involved in habitual theft or if the crime is very serious" or the cutting off the hand "will make the disabled thief a great burden for the people". And yet others have argued that the Qur'anic order "cut off their hands" (5:38) only means that the thief's hand should be injured or it means "prevent the thief from stealing" by creating such an economic atmosphere where everyone is well off to enjoy themselves.

  
All these are mere perversions of Islamic Jurisprudence, unproved by any precedence.Humans are fallible and their minds are limited and as believers, we must submit wholeheartedly to the will of Allah as He says "O those who believe! Enter into Islam completely" (2: 208) and He also tells us "it may happen that you may hate a thing which is in fact good for you and it may happen that you may love a thing which is in fact bad for you" (2: 216). So we should have trust and full confidence in the Lord of the Universe whose decrees are full of wisdom, mercy and blessings. Therefore "no apologies or excuses are needed to explain away or make acceptable to the West" things that have been so clearly stated in the Qur'an and the Sunnah and understood by the whole Ummah for the last fourteen centuries.

 
From the western point of view, it seems to suggest that Islamic law is all about 'lashing, stoning and mutilating'. This is the picture of the Shariah that the West wants to portray, but it is far from the truth. Even the term Islamic law, judged by Western standards, could be a misnomer; "The Shariah is not merely a system of law, but a comprehensive code of behavior that embraces both private and public activities" and "it has a wider application than any secular system of law since it claims to regulate all aspects of a man's life - his duties to God, to his neighbor and to himself".

 
The Shariah encompasses and governs every sphere of human activity including the spiritual, moral, social, economic and political aspects of life and according to H.A.R. Gibb, it is "the most far-reaching and effective agent in mouldings the social order and the community life of the Muslim people".It is the only perfect system of justice that could solve all of world's problems including the crime problem which is seriously affecting and worrying Western societies as it is something that "God in His (Infinite) Wisdom has ordained for the well being of all mankind".Islam denotes the complete submission to the will of Allah, which is only possible "if the Shariah is fully applied in its totality".

 
The "Shariah is an integrated homogenous whole" and any of its specific provisions should be looked at within the overall context and not in isolation because "any arbitrary division of the scheme is bound to harm the 'spirit' as well as the structure of the Shariah". Hence the Islamic penal system, as this essay deals with, should be "viewed with the background of the whole Islamic system of life covering the economic, social, political and educational spheres of activity" and not in isolation as is often portrayed and distorted by the media and the politicians.

 
Role of Punishment in Society
Traditionally it is said that the Shariah is divided into five main branches-I'tiqadat (beliefs), 'ibadah (ritual worship), adaab (morals and manners), mu'amalat (transactions and contracts) and 'uqubat (punishments). The Shariah protects and defends life, property, honor, religion and intellect. Hence the penal system is absolutely vital in guaranteeing these fundamental 'human rights, as it is "the defense system in any society" which "upholds the values and preserves the institutions of that society" otherwise "the entire fabric of society will crumble" as "it is on the proper and most effective administration of law that a society is mould into what it should be". Therefore the Islamic penal system is just one of many branches of Shariah and it will be unfair for a critic, as it is done in the rubric of this essay, to single out some aspects of its penal policy in isolation to judge the merit or de-merit of the Islamic law without looking at the "context of its total scheme - its conceptual basis, primary objectives and goals and overall framework".

 
It has been argued by many renowned jurists and criminologists that "it is an essential requirement for a 'viable' legal system to be inclusive of both fixed and variable elements in its penal postulates". Islam, being cognizant of human conditions, provides for this when it divides its penal penalties in three categories.

 
The first and most severe type of punishments are known as the hudud (singular hadd) meaning a thing which restrains or prevents since a punishment "prevents a man from doing crimes". However, it is a strictly defined penalty which is mentioned in the Qur'an or the Hadith and it includes adultery, fornication, false imputation of unchastity (qadhf), drunkenness, armed robbery, sedition and apostasy, though there are some disagreements on whether one or two are technically described as 'hudud'. Because of "the decisive nature of hadd, its severity and its exactness and its strictness in the rules of evidence", it has "considerably limited the severest penalties".

 
The second category of punishment, known as qisas (equitable retribution), is inflicted for deliberate killing or wounding of a person. Unlike hadd, the penalty could be waived by the victim or his heir in lieu of blood-money (diya), but for unintentional homicide or wounding there is no retribution and only compensation is paid. The Qur'an teaches that:

 
"And for you in equitable retribution there is Life, 0 people of understanding, that you may ward off evil" (2: 179).

 
The third category of punishment is known as ta'zeer (discretionary punishment) and it is "a sentence or punishment whose measure is not fixed by the Shariah" neither as to the offence nor the penalty. It helps to meet varying circumstances (e.g. if a definition element is short in a hadd offence) and the punishment that was generally inflicted in the past was whipping, though other alternatives such as a warning, fines and imprisonment could be given, but the quantum of punishment for ta'zeer is generally much below that of hadd (e.g. ten lashes).

 
The word 'lashing' has strong negative connotations and sounds like the vicious slashing and the more appropriate synonyms would be whipping and flogging. Among the hudud punishments, the offences of fornication, slander and drunkenness carry the penalty of flogging and it could also be prescribed for a number of ta'zeer offences. As the first two are' Sexual Offences', I shall deal with them under 'Stoning' because they are connected with adultery. Practically, for the Westerner, drunkenness is the most likely offence that invokes the penalty of flogging and so I will mention it in some detail.

 
The Qur'an strictly orders the believers to shun intoxicants as "it is the handiwork of Satan" (5:90) and it will 'divert' the believers from the "remembrance of Allah" (5:91) and the Hadith goes even further to condemn all acts associated with alcohol such as drinking, buying, selling, transporting and brewing. Drinking is rampant in Western societies even though "the greatest cause of 'violent' crime in the West is alcohol" Almighty Allah, in His Perfect Wisdom, has prohibited alcohol not only for its "evil effects on the body and the society, but also for their evil moral" consequences.

 
The Islamic penal policy is not to create opportunities for crime and then to punish the culprit, but it aims at eliminating the very root cause of crime. There is a saying "prevention is the best cure" and if we can eliminate alcohol from society, then we can eliminate or at least substantially reduce the rate of crime. That is why "in true Islamic societies there is virtually no drunkenness with its associated catalogue of crimes" such as homicide, physical assault, domestic violence, reckless driving, vandalism and rape. "Islam punishes before there is the chance for a serious crime to be committed" and thereby it stops public nuisance and safeguards people's lives, honor, intellect and property. Alcoholism is a widespread disease and no human solutions are apparent as a result of which even Westerners have admitted that "for recovering alcoholics, Islam is a more effective 'cure' than the Betty Ford clinic".

 
Lord Scarman, the well-known British judicial champion of civil liberties, writes that "it is important to a civilized system of justice to have humane values at all levels of its administration" and Islam provides for this. Flogging in Islamic law is "not just a savage beating inflicted capriciously according to the whims of brutal guards" but it is done "with control, in accord with justice and in the kindest possible way in the circumstances" to the extent that one English writer says that "the best comparison for Islamic flogging is the caning of children at school". Even the President of the International Court of Justice at the Hague in 1967 declared that "certain types of offences call for severe chastisement, and flogging in the case of such offences cannot be regarded as cruel, inhuman or degrading".

 
During the time of the Holy Prophet (saw), drunkards were generally beaten with shoes but at the time of the second Khalifah Umar the punishment for drinking was fixed to 40 lashes or eighty lashes for the more mischievous drunkards. People are not given the hadd punishment for drinking alcohol in their homes in privacy, but at least two witnesses are required to bear witness to the act of drinking and it has to be proven that it was consumed by a mature person voluntarily without any compulsion. A person is only punished with flogging if all the definition elements of the crime are proven and it is attested by reliable evidence.

 
Even with respect to flogging at the time of sentencing, certain conditions and restrictions are imposed; the punishment should not be inflicted by vicious executioners and it should not be carried out in severe hot or cold weather. It is also prescribed that the whip be of medium size, the flogging is done with average intensity and it should not be inflicted on the naked body nor on the head, face and private parts and the whipping should not cause any wound and it should be distributed evenly in various parts of the body and not only on the same parts. Such is the humanity of punishment in Islam even when it prescribes 'deterrent' punishments for major offences such as fornication, slander and drunkenness!.

 
This is the most severe of all the punishments that exist in Islamic law and, just like the case of treason nowadays under English law, it is extremely rare in practice as during the last fourteen centuries of Islamic history only "fourteen cases of stoning could hardly be numbered in all that time". Considering this extreme rarity, it is totally dishonest and unfair for a critic to single out stoning in order to judge not only the Islamic penal system but also the structure of the entire Islamic law in general as it is done in the rubric of this essay.

 
Islamic law aims to ensure the stability of society from its very base - the family - which is the 'nucleus' of society that breeds society's values and holds together the various institutions in society. "The family, is thus, the cradle of the individual and the cornerstone of society" In Islam, marriage is not only encouraged but also made obligatory to ensure the continuity of the family "in the interest of the preservation of the human race and the stability of human civilization". Chastity is highly esteemed as a supreme virtue in Islamic societies, though it is not an ideal in the West where immorality is rampant and flirting has become the part and parcel of life.

 
In the West, the institution of marriage has significantly declined and nearly half of the marriages end up in divorce. The family has broken down resulting in much tension and the disintegration of other institutions in society and the rate of crime has steadily risen to epidemic proportion. The root 'cause' of all these is zina - the unlawful sexual union between a man and a woman who are not married to each other. Zina is the breach of the greatest 'trust' that a man and a woman can ever have and it leads to disastrous consequences such as breakdown of family ties, depression, domestic violence, child abuse, rape and "the AIDS epidemic as a result of promiscuous sexual activity in direct contravention of Divine law". That's why John Major's "Back to Basics" campaign is geared toward restoration of family values in order to reduce the crime rate and to maintain social order.

 
Zina is the most deadliest of all social crimes and "Islam puts an end to all those factors that 'allure' a man to zina or provide occasions for it "The Qur'an condemns zina not with the words "La Tazanu" (Do not commit adultery), as in the Pentateuch "Thou shall not commit adultery", but with the words "La Taqrabuz zina" (Do not go near adultery)...thus blocking all possible 'paths' leading to that act". That is why in Islamic societies, there is the segregation of the sexes and the Qur'an orders both men and' women to "lower their gaze" (24:30-1) and for women to wear the Hijab so that "they may be recognized and not molested" (33:59) as it is better for the purification of the hearts of both the sexes (33:53).

  
To eliminate the root cause of zina, Islam also takes other large scale precautionary and prohibitory measures such as developing God-consciousness, repugnance to sin and the belief in accountability, in every stage of education and it also encourages "early marriage and provides aid from the Public Treasury for those who wish to get married yet cannot afford to do so".Islamic societies, for this reason, will also not tolerate lures, mixed parties, pornography and the like which is likely to arouse the passion and disturb family relations because after all, according to the Qur'an, "Man is created weak" (4:28). Islam also very strongly condemns false imputation of zina on another person (qadhf) as the Qur'an declares: "As for those who slander chaste women and produce not four reliable witnesses, then stripe them with eighty lashes and never accept their testimony thereafter" (24:4). Thus slander of this kind is dealt with severely as it seriously affects and damages self-confidence and strains family relations. Islam is never prepared to accept the kind of gossip that are so frequently found in the tabloid papers and the scandal - mongers are punished severely with eighty stripes.

 
Despite all the lawful channels provided, if a person transgresses the limits beyond all bounds of decency to commit zina in 'public', then Islam provides severe chastisement to safeguard the family and to save society from corruption and destruction and the punishment acts as a strong 'deterrent' to others. For fornication between unmarried couples the penalty is 100 lashes and for adultery between married couples the penalty is stoning to death (rajm). Even then the hadd punishment is not prescribed for the mere commission of zina, but other definition elements of the crime has to be satisfied; only that kind of adultery is punishable by stoning which is committed intentionally by a free person who is both mature and sane, the accused must be committed to a marriage and has had intercourse with his lawful spouse, the accused must have committed zina voluntarily without compulsion and the act of zina must be attested by four honest, reliable and trustworthy witnesses who must have all seen the act of penetration and all four witnesses must be 'unanimous' in every stage of the act including minute details (if statement of one witness is contradictory to the others, then all four witnesses will be given the hadd punishment of 80 stripes for slander)

 
Such is the strict legal technicalities that has to be understood before the hadd of stoning is carried out on adulterers and these facts are not highlighted by the West when condemning the punishments for zina. All the above mentioned conditions have to be met, before the haad is imposed which is very hard to do. Especially the question of witnesses is the most difficult aspect of all - the necessity of a minimum of four witnesses, as opposed to other haad offences where two are sufficient, who must be devout (the testimony of a fasiq, a person who lies or breaks any of the major prohibitions of Islam is inadmissible), the unanimous description of the act of penetration and other minute details by all four witnesses and the fear of receiving the haad penalty for slander on the part of witnesses greatly reduce the chance of conviction for the adulterers as the required evidence is "so strong and complete as to be practically impossible to obtain". That is why during the life of the prophet, "it was not possible to prove...one single case of adultery" and "during 1400 years of the Muslim era only fourteen cases of adultery have been recorded"- hence "punishment by stoning has remained what it always was", harsh in principle, "but extremely rare in practice".

 
Mutilating means "to deprive a person of an organ of the body" and like 'lashing', it too has some negative connotations and I would prefer the alternative 'amputating'. In Islamic law, its application is only confined to the hudud punishments for armed robbery and theft, except of course that it might be applicable to the retributory punishments of qisas. For all practical purposes, the punishment of 'cutting off' the hand is generally invoked for the offence of theft and so I will mention it in some detail.

 
In Britain, most of the recorded crimes involve theft and a burglary is committed every twenty four seconds. Property is something which people hold very dearly and often spend their whole lives in acquiring, and the Shariah seeks to protect the people's rightful ownership to property and thereby ensure the stability of family and reduce violence, vandalism and frustration. The punishment for theft in Islamic law must be seen in the context of the 'Social Security' system of the Islamic Welfare State.

 
"Islam aims at creating a society in which none is compelled by the force of circumstances to steal". Rights and duties are reciprocal in Islam and "no duty is ever imposed on man without his being granted a corresponding right".

 
In an Islamic state, "every individual is entitled to social security collected from various sources ?including the obligatory collection of zakat" and "the basic needs of all citizens are adequately met" because according to a saying of the prophet, every son of Adam is entitled to food, clothing and shelter." It is only after the state discharges its own duty that it can impose the penalty on a thief, who selfishly intrudes on the rights of others despite being provided with all the basic amenities of life. Hence "if a citizen is forced by circumstances (e.g. poverty)...the society will be considered at fault and no hadd punishment will be given to the accused". It was in this light that the second Khalifah Umar, who was well known for his "strict rigidity in enforcing the rules of Shariah", waived the cutting off the hand for theft during a period of famine.

 
Having looked at the socio-economic context of the amputation of hand for theft, it is also necessary to look at the 'legal' technicalities. A strong 'deterrent' punishment for theft is justified because "it is fear of consequences as world-wide human experience proves, that keeps in check the very natural tendency, almost inherent in human nature, to stealing and thieving". The punishment may appear to be harsh "to some hypersensitive Western reader" who are swayed by false sentiments, but "the hand is cut off for the preservation of society" as the Gospels record Jesus as saying: "If your hand causes you to sin, cut it off. It is better to enter life maimed than with two hands to go to hell" (Mark 9:43) However, under Islamic law, the type of theft (sariqah) that invokes the haad punishment is very restrictive in scope and is more akin to 'burglary, and unlike English law, it does not include pickpocketing, shoplifting, mugging, forgery and deception, obtaining pecuniary advantages without payment and handling stolen goods.

 
Even with that restrictive definition of theft, "all elements of the crime must be committed by one person" and all the definition elements of theft must be there such as the following: 1) it is committed intentionally by a sane and mature person who is not driven by force of circumstances (e.g. poverty) 2) the property must lawfully belong to another and have some value, that the value of the stolen property reaches a minimum value of 3 or 10 dirhams and the property must have been taken from a sufficiently 'safe' place or proximity suitable for the safety of the object and 3) the act of stealing must be attested by at least two witnesses who physically saw the crime being committed.

 
By looking at the socio-economic and legal contexts of the amputation of hand for theft, the 'deterrent' nature of the punishment for theft could be better appreciated.In one sense, it could be said that the amputation of hand is the 'maximum' penalty for theft because all the definition elements of the crime has to be satisfied and even when it is carried out it is done humanely and "amputation in an actual Islamic state with an Islamic penal system is (extremely) rare" in practice. Professor Muhammad Qutb writes that "punishment for theft has been executed only six times throughout a period of 400 years is a clear evidence that such punishment was primarily meant to prevent crime". As we do not have a proper Islamic state, the practices in some Muslim countries should be looked at with skepticism and put under strict legal scrutiny as "the cutting off of a hand for theft is applicable only within the context of an already existing, fully functioning 'social security' scheme"

 
The word barbaric was originally used by the Greeks for 'foreigners' to express the strange sound of their language. Later, this word was used to describe people who are 'uncivilized, primitive, rough, uneducated, brutal, cruel, blood-thirsty and merciless' as opposed to being 'advanced, civilized, cultured, humane and compassionate, It is true to say that not a single synonym of 'barbaric' is applicable to the Islamic penal system. On the contrary, humane values lie at the heart of the criminal justice system in Islam and all the antonyms of 'barbaric' are truly descriptive of the Shariah.
The object of punishment is not to relentlessly hunt down wrong-doers for retribution, but to see that peace, right and order are restored and this could be illustrated by the fact that the Islamic penal system almost wholly "lacks police, prisons and professional executioners". The hudud may appear to be harsh in the eyes of those who have been swayed by false sentiments, but human experience shows that if a punishment was to act as 'deterrent', then it has to be severe and exemplary. "Life cannot be safe if the habitual criminals are left unfinished" and it is better to be severe to one and save many than to be unnecessarily lenient and thereby destroy many and put the lives of millions of others at risk.

 
The deterrent punishments in Islam on the surface appears to be harsh, but it is only meant for "such incorrigible offenders who stand as real obstacles in the healthy growth of human society" and "in fact, it was a vital instrument in the dynamics of building a new social order" and it radically abolished and amended the pre-Islamic systems where inhumanity and vengeance was the order of the day. Prisons in Western societies are miserably failing its people and apart from being living hell, prison destabilizes people and often has a "destructive effect on the personality" Home Office statistics in Britain shows that longer sentences do not prevent re-conviction and in fact 50% males and 35% females get convicted within two years after coming out of prison. Hence "if the results do not tally with the main object, it means that the laws of punishments are quite imperfect" Thus, it is not true to say that prison is the more appropriate punishment for theft rather than the amputating of hand and if reducing the crime rate is the objective, then certainly the choice will be the Divine law - you just have to compare the crime statistics of Saudi Arabia and America and judge which one is better.

 
Sentences may appear to be severe in Islam, "but still more strict and severe are the 'procedures' laid down to be observed before a man may be convicted" and the Holy Prophet said: "Avoid the hudud as much as possible. Wherever there is even a mild chance, release him, for releasing by an error on the part of the judge is better than to punish anyone with error" (Tirmidi and Ibn Majah). Islam also teaches that "no bearer of a burden shall bear the burden of another" (6:164), it guarantees the accused immunity from 'malicious prosecution' (unlike in the UK) due to strict rules of evidence, it strongly advocates the equality of all before the law and in the realm of qisas (equitable retribution) it teaches that "let him not exceed in the matter of taking life for he is aided" (17:33). Such is the humanity taught by Islam 1400 years ago!

 
We have dealt with the humane values that Islam stresses even at the time of sentencing. For example, in the case of flogging, several conditions and restrictions are imposed ranging from the type of stick to who inflicts the punishment to where it should hit! In actual practice, very "few haad punishments were prescribed". On the other hand, if we look at the inhuman atrocities of the West it is beyond count and Professor E.F.M. Durbin, after describing the inhuman and cruel treatment that has been inflicted by the 'progressive' countries of the West concluded by saying that "such large-scale brutality has rarely been witnessed, I am thankful to say, in the previous history of the World". Therefore, "Islam is a package deal which Muslims are bound to follow and if the progressive modern cultured societies can 'tolerate' mass killing indiscriminately with atom bombs, then certainly they can tolerate the amputation of the hands, flogging or stoning to death for certain 'heinous' crimes i.e. sacrifice of a few individuals for the sake of the society as a whole".
Outdated means' old fashioned, obsolete and unfashionable' and it is applicable to something which is 'out of date', and to raise this objection against Islamic law doesn't make sense. The Shariah is a 'living law' today, as it was 1400 years ago, among the Muslim masses across the globe, though it may not be implemented in its totality. I think the critic is not trying to pinpoint any particular 'weaknesses' of Islamic law but is simply saying that the Shariah is too old and therefore we should forsake it for the latest modern trend.

 
There is nothing such as 'modernism' in Islam as Islam is forever modern, progressive and dynamic because human trends show that what is modern today becomes obsolete tomorrow. The Shariah emanates from Allah the All Wise who, being well aware of human conditions, has revealed a law (5:48) that is "perfectly universal and applicable to all nations" for all times. "It is not a system of law to be judged and evaluated as 'good' or 'bad' in accordance with the changing views of the population or the policies of the state" and therefore the Shariah is radically different from "the ordinary law in which the legislative authority is free to explain and comment on the law introduced by it which it can freely amend, cancel or withdraw".

 
If the aim of the law is to control unacceptable human behaviour and to reduce the rate of crime, then there has to be an element of permanence so that it may be easily recognized by the citizens who after all, are the ones who are bound to follow the law (English law teaches that 'ignorance of law is no defense). But man-made laws change all the time according to changing "social attitudes" so much so that actions that were once regarded as 'detestable' and 'heinous' crimes (such as abortion, suicide, prostitution, homosexuality and adultery in England) are now regarded as 'legal' and normal under the same laws! Such is the nature of human laws which cannot fully comprehend human nature or predict the future and is constantly changing so much so that if I buy a law textbook today, it may not be valid for tomorrow." Islamic law, therefore, does not recognize the liberty of (human) legislation, for it would be incompatible with the ethical control of human actions and, ultimately, of society".
That is why man-made laws have miserably failed and the rate of crime has reached epidemic proportion as Allah says that "it may happen that you hate a thing which is in fact 'good' for you and it may happen that you love a thing which is in fact 'bad' for you" (2:216)."Islamic law is at once static as well as dynamic" as a result of which it has attracted people of all nations over the last 1400 years and yet "kept the social fabric of Islam compact and secure through the ages" and "this law shall be as responsive to the urges of a progressive society in the present and the future as it has been in the past". So it's about time that the fallible Occidental homo sapiens change their 'fashionable' attitudes of contempt for Islamic law so that they may be assured of their spiritual and material well being and create an ordered crime free society based on justice.

 
The Shariah encompasses and governs every aspect of life and any of its specific provisions, including the penal system, must be seen in its totality where the moral, socio-economic, political and educational systems are in force and it must not be seen in isolation. If the penal system is only one of the branches of law, which is dependent on other institutions in society, then it is totally unfair to look at some of the rare punishments of Islam to judge the merit or de-merit of the whole legal system as it is done in the rubric of this essay.

  
The penal system is vital in enforcing social order and ensuring the stability of society. Unless 'deterrent' punishments are applied to curb the "incorrigible, hardened and habitual criminals committing most abominable atrocities", then the very fabric of society will be torn. Westerners never show the true role of punishments in the overall 'context' of a proper Islamic society, "rather they are shown as scattered, isolated, dissected parts, selected so as to appear absurd" and they "wrongly imagine that such punishments - like the European civil systems - will be inflicted every day". It must also be said that "the establishment of the true Islamic society is a 'condition' precedent to the infliction of hudud' (as rights and duties are reciprocal in Islam) and that no such Islamic state exists nowadays as "the legal systems prevailing in the Islamic world are almost entirely based on Western law".

 
As humans are 'social beings' susceptible to influences and conditioning, Islam aims at eliminating the root 'cause' of crime by creating a crime free environment and blocking all avenues by which crime may be committed It also wages a crusade against crime "by way of educating the masses" and appealing to the moral conscience and these factors are much important in reducing the crime rate than any 'material' sanctions. "The 'moral habit' engendered by the Shariah is a powerful factor making not only for individual righteousness but also for effective social co-operation and cultural progress" it is due to the absence of this in Western societies that has led researchers into the effectiveness of punishments to "the conclusion that nothing works" because there is a saying "you can bend the necks but you can't change the hearts".

 
The alleged severity of the Islamic punishments is not really what the West is concerned about, but the 'moral values' of Islam as "they do not think that crimes like drunkenness and adultery deserve even a word of reproach" let alone prescribing exemplary punishments for these offences. A system which the West always attack and belittle is loved by millions of people across the globe and "this popularity (for the implementation of hudud) is what really horrifies the West" - when it suits them, the West is even prepared to denounce their well-cherished concept of 'Democracy'. According to Professor Qutb, the 'real' reason "Europeans are afraid of the application of the rules of Islam" is because they themselves are "criminal in nature and persist in committing crimes which lack all justification" .

 
Islam never prescribes punishment haphazardly nor does it execute these without due consideration" and the few hudud punishments inflicted for the most serious offences have very strict 'definition elements' which makes its application very rare in practice and yet it has been instrumental in the past and at present in greatly reducing the problem of crime which is seriously affecting Western societies. Therefore, the allegations about the Islamic law are totally 'baseless' and reflects the West's narrow minds and blind vision to the reality of Islam that is sweeping across Europe and it is determined to retain its stereotype images of the Islamic law from its colonial past as an 'ideological weapon' in the crusade against Islam.

 
The Shari'ah has taken a strict action keeping in view the gravity of various crimes and their adverse consequences. These days, crimes are being committed in an organised manner and can only be controlled by practicing the punishments mentioned for criminals in the Holy Qur'an.

The crimes in which somebody's honour and dignity are debased are of different kinds. For example, a person is alleged to have taken a bribe or other such allegations are imposed upon him, but the accuser could not prove his allegations, then the person whose honour and dignity has been at stake has a right to get the accused punished, because he has defamed him unnecessarily.

But, the Shairi'ah has not fixed any punishment for such allegations, because the punishment of such crimes is included in the 'Ta’ziri' crimes' also. Those in authority or a Qazi or a judge can give any suitable punishment to them. But if there is such an allegation which is not proved, then the Shari'ah has set a severe punishment for the one who imposed the allegation. It is termed as 'Qazaf' according to the Shari'ah.

The definition of the 'Qazaf' is that if a person alleges a man or a woman of having committed adultery or to declare a person as an illegitimate child, because it is also an allegation against one's parents, hence, a person who imposed the allegation is required to prove his allegation according to the methods as prescribed by the Shari'ah, i.e. four male witnesses who fulfill all the conditions required to prove this allegation should be shown as a proof, and if he cannot prove his allegations, then he is required to be awarded 80 lashes and his testimony will not be acceptable in the future.

Now, we are going to deal with the crimes which seem to be not an offense against someone's body, property or honour, but fall within the crimes of self-destruction, like drinking and adultery. These are the crimes in which no harm is intended to anybody else, but the criminal will have to suffer the good or bad consequences of these himself. Islam has not only denounced these crimes in the severest words, but has also declared them as deadly poison for the society.

It may be mentioned here that in connection with these crimes, which may affect other people as well, the word 'seems to be' was used with a set purpose will objective. It seems as if nobody is targeted to be victimised by a drunkard or an adulterer, but in fact, these crimes becomes a means for so many crimes. They not only cause various other crimes, but are also the root cause of major diseases and ethical crimes, that is why the Holy Prophet (r) has declared wine as "the mother of all mischief."

It is a fact that when a man loses his senses after being intoxicated by wine (or liquor), he can commit any crime. It has been proven by facts and figures that wine is the root cause of theft, adultery, murder and terrorism.

Similarly, adultery and such things which are an incentive for the people directly or indirectly in adultery are the major source of a lot of crimes and diseases. AIDS, the most dangerous disease of the modern age, is also said to be spread through adultery This disease is common in those societies in which adultery is common.

The Shari'ah has fixed the most severe punishment for such crimes. Therefore, it has been commanded by Allah Ta'ala for the punishment of adultery that the man or the woman who have established illicit relations if unmarried, then they will be awarded the punishment of 100 lashes each for this crime, but if they are married, then they should be stoned to death.

Drinking is prohibited by Shari'ah. Shari'ah has also forbidden the sale and purchase and brokerage of its trade. But no punishment for a drunkard was fixed during the period of the Holy Prophet (r). Instead, such persons were given different types of punishment. But when the incidents of drinking increased during the Caliphate of Hadhrat Umar (رضي الله عنه), he suggested that the punishment to be awarded to a drunkard. will be 80 lashes. All the Companions (رضي الله عنه) unanimously agreed upon this proposal. Hence forward, the same punishment was fixed for a drunkard.

This is a brief sketch of the Islamic 'Hudood' and 'Qisaas' The details of these crimes and the punishments to be awarded for them are written in the books of Islamic Fiqah (jurisprudence) and are very hard to summarise in this article.

So far as the second part of the subject of this speech is concerned, which pertains to the objections of the Western thinkers and jurists about the Islamic punishments, they are not only baseless but are also a showing-off of their pride and prejudice. There are a lot of crimes which they do not acknowledge at all as crimes. Hence, when they do not regard them as a crime, how can they think of a punishment for the same?

Islam not only gives the punishment for adultery by declaring it as an unlawful act, but it has also treated all such acts as unlawful (Haram) which help or are an incentive to a person in committing a crime. It has been commanded by Allah Ta'ala in the Holy Qur'an: "Do not go near adultery." Similarly it has been commanded in Surah Noor: "Those who propagate obscene and filthy acts among the Muslims, they will be given the most severe punishment in this world as well as in the Hereafter."

Hence, according to the Annual Report 1996 of the National Commission for Narcotics Control in U.S.A., most of the cases of divorce, child abuse, vehicle accidents, unemployment, sexual crimes. theft, murder, etc., were committed due to drinking habits. It is a report which includes the statistics of the year 1966, but now, after 32 years, the rate of these crimes has increased instead of decreasing.

Similarly, adultery has caused an unlimited chain of birth of illegitimate children in the Western countries. Being fatherless children, these illegitimate children have developed like a cancer in the Western society. This fact has also been acknowledged by impartial observers of the West also. So far the objection on other punishments is concerned, the Western society has fallen a prey to their prejudices. In other words, a section of them in sympathy with the criminals; do not want to punish them according to the demand of law. For example, most of the European countries have abolished the death penalty for a murderer. Instead, he will be awarded life imprisonment and it has also been reduced to 15 to 20 years. There is also the facility of getting released on assurance. Whereas, Islam commands a life for a life. If impartially observed, Islam has created a sense of equity and justice. Life imprisonment instead of capital punishment to a murderer is not a punishment which fulfills the demand of, justice and human rights.

In the western jurists' point of view, it is against human rights to bang a murderer on the gallows. Human rights is a newly constructed ideology of the West, under which one could commit continuous oppression and tyranny and could declare in the end he knew not that such and such acts were impermissible and if someone filed a suit against him for committing a crime, then it would be a violation of human rights. Can the Western jurists explain the reason as to why the murderer deserved their sympathy of being a human being, but the murdered one did not? Not to kill the murderer is not only against the canons of justice, but also indirectly encourages the would be murderers. It is a tyranny and and oppression against the murdered and his heirs.

Similarly, the western thinkers are against the amputation of hand of a thief, which was also a thoughtless objection. The Shari'ah not just wants to punish a thief for his crime, but also wants him to become a symbol of his crime, so that the people may learn a lesson and may become afraid of committing this crime. On the contrary, if a thief is put behind the bars for a certain period or is fined and his hand was not amputated, then he will be encouraged to commit more such crimes in the future. That is why thieves are pleased to be jailed. They not only pass the period of imprisonment happily, but also take full advantage of learning the art of theft from their seniors in the jail and when they come out of the jail, they are full of new courage and training.

Moreover, the Present-day thieves are equipped with sophisticated weapons. That is why they not only steal, but kill the owner also. Had the hands and toes of any of their brethren being amputated according to the Islamic laws, then they would neither have used the deadly guns nor could flee from the place of their crime. The European thinkers can be given a single answer for all their objections that if Islam has prescribed the most severe punishment for theft, then it is just for the criminals, the innocent people need not fear. On the contrary, the whole of Europe including America and Russia have invented the most dangerous weapons of terrorism by which the innocent people are not only deprived of certain parts of their body but could also become disabled for the rest of their lives.

Was the entire population of Hiroshima and Nagasaki wiped out from the surface of the earth because of the severity of Islamic punishments? Or was it. an act of terrorism of the West and the U.S.A.?

Moreover, if we look into the facts and figures, we will find that the number of the crimes have not decreased since the West has invented new methods of torture and punishment to the criminals. In the Islamic countries, where the Islamic punishment are awarded, the rate of crime has been minimised.

Islam has never declare that its punishments can wipe out crimes from their very foundations. It is impossible to think of a society without crime, but, it is an acknowledged fact that the Hudood and Qisaas in Islamic jurisprudence have caused the rate of crime to be decreased to the minimum.
The ultimate objective of every Islamic legal injunction is to secure the welfare of humanity in this world and the next by establishing a righteous society. This is a society that worships Allah and flourishes on the Earth, one that wields the forces of nature to build a civilization wherein every human being can live in a climate of peace, justice and security. This is a civilization that allows a person to fulfill his every spiritual, intellectual, and material need and cultivate every aspect of his being. This supreme objective is articulated by the Qur’ân in many places. Allah says:
- We have sent our Messengers with clear signs and have sent down with them the book and the criterion so that man can establish justice. And we sent down iron of great strength and many benefits for man.

- Allah wants ease for you, not hardship.

- Allah wants to make things clear for you and to guide you to the ways of those before you and to forgive you. Allah is the All knowing, the Wise. Allah wants to forgive you and wants those who follow their desires to turn wholeheartedly towards (what is right). Allah wants to lighten your burdens, and He has created man weak.

- Allah commands justice, righteousness, and spending on ones relatives, and prohibits licentiousness, wrongdoing, and injustice.
Since the Islamic legal injunctions are aimed at achieving human welfare, they can all be referred back to universal principles which are necessary for human welfare to be secured. These universal principles are:

1. The preservation of life.
2. The preservation of religion.
3. The preservation of reason.
4. The preservation of lineage.
5. The preservation of property.

The Islamic penal system is aimed at preserving these five universal necessities. To preserve life, it prescribes the law of retribution. To preserve religion, it prescribes the punishment for apostasy. To preserve reason, it prescribes the punishment for drinking. To preserve lineage, it prescribes the punishment for fornication. To preserve wealth, it prescribes the punishment for theft. To protect all of them, it prescribed the punishment for highway robbery.

It should therefore become clear to us why the crimes for which Islam for which the Law has prescribed fixed punishments are as follows:

1. Transgression against life (murder or assault).
2. Transgression against property (theft).
3. Transgression against lineage (fornication and false accusations of adultery).
4. Transgression against reason (using intoxicants).
5. Transgression against religion (apostasy).
6. Transgression against all of these universal needs (highway robbery). < p class=chap1>Principles of the Islamic Penal System
The Islamic penal system is based on a number of principles, the most important of which are as follows:

The first principle is that nothing is prohibited before the appearance of the Divine Law. Deeds are only described as prohibited if their prohibition is stated in the sacred texts. This principle is implied by many verses of the Qur’an and indicated by a number of the rules of Islamic jurisprudence.

Among these verses are:
- We would punish no one until after we had sent a messenger.

- Your Lord would not destroy the towns until He sent a messenger to the mother of the towns who would recite to them Our signs.
The jurists have derived two rules of jurisprudence from verses such as these. The first is that no accountability exists before the appearance of the Divine Law. The second is that everything is assumed to be permissible unless there is proof indicating otherwise.

These two rules in the Islamic penal system mean that punishments for prohibited acts outlined by the sacred texts apply only to crimes they are committed after the relevant texts have been revealed. This is with regard to prohibited acts that have fixed punishments prescribed for them by the texts. As for the prohibitions of a more discretionary nature – where the divine texts establish that certain activities are prohibited but make no mention of a prescribed punishment – in these cases the punishment is to be determined by the political authority in light of the indications given by the prescribed punishments for other crimes.

The second principle is that previous violations are to be pardoned (punishments are not retroactive). This principle, which is a consequence of the previous one, means that the divine texts that prescribe fixed punishments for certain crimes are not to be carried out on people who committed these acts before the texts prohibiting them were revealed. They are only applicable to those who commit these crimes after their punishments have been prescribed. The previously mentioned verses point to this principle, as do the following. Allah says:
- Allah has pardoned what has passed.

- Say to those who disbelieve that if they desist, Allah will forgive them what has passed.
The third principle is that no one is punishable for the deeds of others. This means that, in Islamic Law, the individual is solely accountable for his or her crime, and no one else will bear the burden of an action that he or she committed. No one will be punished for a crime committed by someone else, no matter how close the two people might be related. The Qur’an has established this principle in many verses. Among these are the following: Allah says:
- No soul will earn any wrong except against itself. No one shall bear the burden of another.

- Whoever does good, then it is for his own soul, and whoever does wrong then it is against it.

- Man has nothing except what he strives for.

- Whoever does wrong will be recompensed for it.

- Every soul is mortgaged against what it earns.

 
The fourth principle is that the penal code is universally applicable. The Islamic penal code – like other Islamic institutions – is equally applicable to everyone, without discrimination, regardless of social status. The Qur’ân has established the principle of universal equality in the following verse:

  
O mankind, We have created you from a male and a female and made you into nations and tribes so you can come to know one another. Verily, the most noble of you with Allah is the most righteous.
Allah’s Messenger (peace be upon him) has clearly illustrated the principle of equality in carrying out punishments when a woman from the Makhzûm clan – one of the noblest clans within the tribe of Quraysh – committed theft. The people of Quraysh interceded to have her acquitted, but Allah’s Messenger (peace be upon him) said:

 
O people, those who came before you came to ruin only because they used to pardon their nobility when they stole and would carry out the punishment on the weak. By Allah, if Fatimah, the daughter of Muhammad, committed theft, I would cut off her hand.

 
The fifth principle is that a punishment is not to be carried out in the face of doubt. This means that the judge cannot rule to have the punishment carried out upon the accused whenever there is doubt as to whether or not the crime has been committed, or whether or not there is a legal justification making it excusable.

This principle is intrinsically related to the maxim observed by the Divine Law in both civil and criminal cases: that innocence and freedom from accountability is to be assumed unless proven otherwise. Allah’s Messenger (peace be upon him) made this clear when he said: “Do not carry out the prescribed punishments when there is doubt.”

 
Distinguishing Features of the Islamic Penal System
In the aforementioned principles, Islamic Law and contemporary law coincide, though Islamic Law has the distinction of being first. However, the Islamic penal system also has unique virtues and distinguishing features, among the most important of which are the following:

1. The inner deterrent of man’s moral conscience is fully integrated with external supervision. This is due to the fact that Islamic Law, when dealing with social problems such as crime, does not rely merely on legislation and external deterrents. It focuses more on the internal deterrent, placing the greatest emphasis on man’s moral conscience. It endeavors to develop this conscience within a person from childhood so that he can be brought up with the noblest moral character.

It promises success and salvation for those who work righteousness and warns wrongdoers of an evil fate. In this way, it stirs up emotions, making a criminal renounce his ways by inspiring him with faith in Allah, hope for divine mercy, fear of divine punishment, adherence to moral virtues, love for others, and a desire to do good to others and refrain from causing injury and harm.

2. It has a balanced outlook with respect to the relationship between the individual and society. This becomes clear from the fact that while the Divine Law protects society by legislating punishments and preventative measures against crimes, it does not marginalize the individual for the sake of society. On the contrary, its priority is the protection of the individual, his freedom, and his rights. It provides every safeguard to leave no excuse for a person to have to resort to crime. It does not set out to punishm without first preparing for the individual a situation conducive to a virtuous and happy life.

  
Motives for Murder and the Islamic Solution
In most cases, murder is motivated either by causes stemming from economic factors or causes stemming from the violation of a person’s reputation or honor.

As for the economic reasons for murder, Islam has addressed them in the following way:

1. It calls towards empowering individual efforts in the realm of working, manufacturing, and developing the Earth. It considers this one aspect of making man the vicegerent on Earth, a status defined by the Qur’ân in many places as being one of man’s basic responsibilities. Allah says:
- Remember when Allah said to the angels: “Verily, I am placing a vicegerent on the Earth.”

- He is the one who made you vicegerents on the Earth.”
In this way, Islam removes every material and ideological impediment that might prevent man from working.

2. It holds the political leaders responsible for preserving social equilibrium and realizing social justice. A situation must not surface where excessive wealth exists alongside wretched poverty. Islam facilitates this by prohibiting the concentration of wealth in the hands of the very few. Allah says, regarding Zakâh:

  
…so it (wealth) will not be circulated between the wealthy among you.

 
3. It prohibits usury and monopoly. These are two means by which capital is unduly concentrated in the fewest of hands, which is in turn the principle reason for the loss of social equilibrium.

4. Islam has established an alms tax known as Zakât and made it a religious obligation. It is a specific percentage taken from the wealthy – they pay it themselves due to their faith – and then redistributed among the poor.

5. Islam provides a system of inheritance that fragments accumulated wealth with the passing of every generation, distributing it among relatives in a very detailed and precise manner.

6. Islam provides the principle of social security for those who are incapable of earning for themselves.

7. It makes the state responsible for providing opportunities for work. Islam considers this to be one aspect of its general responsibility to promote the general welfare.

8. Added to all of this, Islam has the greatest concern for the conscience and emotional state of the individual. It develops the individual from childhood to have faith in Allah and to rely upon Him. It teaches him the value of integrity, modesty, decency, love for others, cooperation, and participation in society. In this way, it destroys the seeds of hatred and resentment before they can take root in the heart. Allah says:

 
- ...those who respect their trusts and covenants.

- Cooperate with each other in doing righteous deeds and in fearing Allah.

 
As for the motivess for murder connected with honor and reputation, Islam has legislated the following to remedy them:

1. It develops the individual to be accustomed to controlling his or her impulses and having command over his or her desires. He learns to only fulfill his desires within permissible limits. Allah says:

 
Hasten towards forgiveness from your Lord and gardens beneath which rivers flow, prepared for the God-fearing who spend in prosperity and hardship, suppress their anger, and pardon others.

 
2. Islamic Law includes procedures that restrain these reasons by providing preventative measures against adultery (and that will be dealt with later). Because of these procedures, the punishment for murder becomes just and logical, since its causes become limited to pure aggression. It is necessary to restrain such aggression so that society will not be exposed to division and corruption. 

 
The Causes of Theft and Their Islamic Remedy
The only reasonable causes for theft are hunger, the inability to earn, and disruption in the economy. There are other reasons as well, of a more psychological nature.

What has been mentioned in the previous paragraphs about the Islamic remedy for the absence of social equilibrium and the precautionary measures it takes in this regard are all relevant for the issue of theft. In spite of all these precautions, if a person is found stealing out of hunger or to fulfill his basic needs, then no punishment is meted out to him. Allah’s Messenger (peace be upon him) said: “Do not carry out the prescribed punishments when there is doubt.”

  
The Causes of Fornication and Adultery and Their Islamic Remedy
The causes for fornication and adultery can all be referred back to the power of the sexual urge and to defects in the social order that make marriage difficult, place impediments in its way, and promote the dissolution of moral values. Islam has taken many precautionary measures to remedy this problem and prevent fornication and adultery, among which are the following:

1. Islam permits marriage, encourages it, and makes the process of marriage very simple. Allah’s Messenger (peace be upon him) has said: “O assembly of young men, those of you who find the means to do so should get married.” He also said: “If a man whose religion and fidelity are pleasing to you approaches you for marriage (from your family), then get him married. Otherwise, there will be a lot of turmoil and corruption on Earth.”

Allah calls society to get its single members married. Allah says:
Get those among you who are single married as well as the suitable ones among your male and female slaves. If they be poor, Allah will enrich them out of His bounty.
The command to get people married includes giving financial assistance to those whose incomes are insufficient to cover the requirements of marriage due to high dowries or for other reasons.

2. Islam develops the individual from childhood with values such as God-consciousness, chastity, and humility, ingraining in the psyche a moral impetus that effectively prevents the individual from committing forbidden acts. Allah says:

 
Those who do not find the means to marry should abstain until Allah enriches them out of His grace.

 
3. Islam establishes society on the basis of virtue, moral values, decency, modest dress, and avoiding licentiousness in all public forums including the media. It forbids everything that excites sexual desire or promotes licentiousness in society. Allah says:

 
- Verily, those who like to promote sexual immorality among the believers, they will have a painful punishment.”

- Tell the believing men to lower their gazes and protect their private parts (from illegal sexual acts).”

- Tell the believing women to lower their gazes and protect their private parts (from illegal sexual acts) and not reveal their adornments save for their outer garments.”

 
4. Islam encourages young men and women to busy themselves with things that vent off their sexual powers, like study, sports, and public service.

5. Islam also promotes frequent fasting for those who are unable to get married. Allah’s Messenger said: “O assembly of young men, those of you who find the means to do so should get married, and if one is not able to do so, then he should fast.”

6. It calls society to return to the aforementioned Islamic values whenever it begins to deviate from them, whether this is related to its placing obstacles in the way of marriage or its neglecting the moral values that protect and safeguard society from falling into vice and depravity, or its abandoning its responsibility to assist those who are unable to get married, or due to its weakness in its developing and educating its members spiritually. Society, in every instance, is called upon to return to guidance and to the Lord. For this reason, the Sacred Law requires society to command what is good and forbid what is wrong. Allah says:

 
Let there arise a group of people from among you who call to righteousness, command what is good, and forbid what is wrong.

 
7. Islam has prescribed divorce to deal with situations where one of the two spouses loathes the other or cannot have his or her sexual needs fulfilled. This is so that person may find love, affection, and fulfillment with someone else. Allah says:

  
If they separate, Allah will enrich each from His abundance.
The Causes for Taking Intoxicants and the Islamic Remedy
The use of narcotics, including alcohol, is one of the most dangerous societal ills. It affects the health of the individual, causing disease. It affects the mind, taking away the individual’s mental powers and making him accustomed to running away from his problems. It affects his finances as well, due to the expenditure that his generally expensive habit forces upon him.

The harm also extends to the family and society at large. This can be clearly seen in every society where this evil practice has become the norm. Due to these harmful effects, Islam has forbidden the use of these substances and has prescribed a specific punishment upon the user. It has also remedied the causes of this malady.

The social causes for drinking and drug use can generally be traced back to the loss of social equilibrium. This tends to lead two distinct groups of people to substance abuse:

A. The first are those people who are taken to luxurious living and opulence. The pleasure-seeker, on account of his free time, boredom, and jaded tastes, turns to intoxicants looking for something that will spice up his life and give him pleasure and vitality.

B. The second group is the deprived. They use intoxicants to escape from the harsh and wearisome realities of a daily life filled with pain.

Islam has remedied these causes in the following way:

1. Islam calls to restoring social equilibrium whenever it becomes imbalanced, so that wealth, economic activity, and the means of production do not become hoarded up by a small group of people, and so that wealth is not passed exclusively among the affluent.

2. Islam connects the believer’s heart to Allah, making it constantly in touch with Him, so he does not live his life overwhelmed by anxieties. Allah says:
Whoever fears Allah, Allah will make for him a way out; and He will provide for him in ways that he could never imagine; and whoever relies upon Allah, then He will be sufficient for him. Verily, Allah will accomplish his affair.

 
3. Working and struggling to earn a livelihood counts as a form of worship that earns blessings for the one who engages in it as long as his heart is in touch with Allah and his intention is sincere. Being aware of this earns for the heart trust in Allah, pleasure in worship, and a high spiritual awareness because he can feel the love of Allah. As Allah says: “Allah is with you.”

4. Islam develops the individual to confront his problems and not run away from them. It also inculcates within him reliance upon Allah when undertaking to confront them and faith that whatever befalls him would never have passed him by and whatever passes him by would never have befallen him. Allah says:

 
Say (O Muhammad): “Nothing will ever befall us save what Allah has written for us.” 

 
Islam conditions the individual to rely upon Allah and to be aware of the fact that Allah will never leave him to face his problems alone; quite the contrary, he is enveloped by the divine providence and care granted to the believers. Allah says:

 
Allah is with you, and He will never decrease the reward of your good deeds.

 
Islam develops within the individual the concept that his efforts will never go to waste, for whatever he earns in this world, he will also realize it in the next, and even when he does not realize the fruits of his effort in this world, he will definitely realize them in the next. Allah says:

 
- Those will be given their reward twice because of their patience.

- Verily, Allah is the Provider, possessing great power.

 
Faith causes the believer to be steadfast and patient in solving his problems, not to try to run away from them by any possible means. So, whoever holds these values and believes in them will be unlikely to resort to alcohol and other drugs in order to avoid his problems and escape from reality.

Islam prohibited wine in stages. When Islam first confronted the use of wine in Arab society, wine use was deeply ingrained in their culture. Islam, consequently, chose to approach the issue gradually and wisely. In the beginning, it called the people's attention to the harmful effects of wine that far surpass its benefits. Allah says:

  
They ask you (O Muhammad) about wine and gambling. Say: “They both cause harm and benefit, but their harm is greater than their benefit.”

 
In the next stage, use of wine was prohibited before the times of prayer to insure that no prayer time would arrive without everyone being completely sober. Allah says:

 
O you who believe, do not approach prayer while you are intoxicated, until you are able to know what you are saying.

 
The absolute prohibition of wine came after the people were prepared for its prohibition so much so that they began to look for the day that it would be completely prohibited, saying: “O Allah, give us a clear decision about wine.” Allah says:

 
O you who believe, verily wine, gambling, idols, and divination are but the abominations of Satan’s handiwork, so abandon these things that perchance you will be successful. Satan only wishes to cause enmity and hatred between you through wine and gambling and to prevent you from the remembrance of Allah and prayer. Will you not then desist?

 
Due to this gradual nature of the prohibition, they found no difficulty in obeying the verse prohibiting wine. On the contrary, they poured the wine into the streets of Madinah so much so that the streets were flowing with it. From this point on, avoidance of alcohol became embedded in the social customs of the Muslims.

In spite of the deviation found in contemporary Muslim societies and the varying degrees of estrangement from Islam found within them, we find that the use of alcohol remains low in comparison to its widespread use in other societies. This is because wine is looked upon with an attitude of aversion that has been deeply ingrained in the social customs of Muslim societies. This is the distinctive feature of Islam whereby it tackles social problems with a dual approach: employing both the inner pressure of a conscience inspired by faith as well as the external pressure of supervision that comes both by way of public opinion and by way of punishments carried out by the state.

 
The Causes of Apostasy and the Islamic Remedy
In most cases, apostasy stems from the onset of doubt in the belief of the apostate. Islam has remedied this problem in the following manner:

1. Islam, from the onset, has never compelled anyone to accept it as his or her religion. It should be safe to assume that the individual – as long as he or she is not being confronted with any material or spiritual coercion – will never accept Islam except on account of conviction. Allah says:

 
- There is no compulsion in faith.

- So would you (O Muhammad) then compel people to become believers?

 
2. Islam encourages the development of the faculty of reason, expanding its horizons to contemplate on the signs within the person’s body and the signs in the surrounding environment. It encourages researching and contemplating the Qur’ân as well as history. Allah says:

 
- In the Earth are signs for those who are certain, and in themselves (as well). Will they not then see?”

- Say (O Muhammad): “Behold all that is in the heavens and the Earth.”

- Say (O Muhammad): ‘Travel in the land and see how He originated Creation.”

- Have they not pondered the word?

- Do they not ponder the Qur’ân?

- Say (O Muhammad): “Travel in the land and see what was the end of those before you. Most of them were polytheists.”

- Have they not traveled through the land, and have they not hearts wherewith to understand and ears wherewith to hear?

 
Thus, Islam requires that conviction be built upon the results of deep investigation and contemplation into Creation, including oneself, and into life and history, as well as the Qur’ân. From this, the precision in the governance of the universe and the wonder of its creation will be revealed, as well as how this requires that Allah alone must possess divinity. In this way, conviction in Islam becomes established on the basis of these clear and obvious conclusions. This establishes the believer’s faith on the basis of evidence as opposed to blind following, and on the basis of sound arguments as opposed to conjecture.

3. Islam grants the individual an opportunity to repent. In this fixed period of time, he has the opportunity to present and freely discuss his problem so that his misconceptions can be removed and the issues that give him doubt can be clarified by rational proofs and tangible evidence. If he returns to faith – even if only with his tongue – his life will remain inviolable and his rights and honor will be upheld.

 
Highway Robbery and the Islamic Remedy
As for highway robbery, it is roughly a composite of all the previously mentioned crimes. Its causes are generally the same as the causes for those other crimes. The measures that Islam takes to remove those crimes and to prevent them from developing in the first place are also applicable to preventing highway robbery and keeping it in check.

This is how Islam confronts the problem of crime, stopping it in its infancy, or moreover, destroying the root causes for the crime, giving it no opportunity to develop and no suitable place to proliferate. In this way, Islam safeguards society and gives full consideration to the individual, remedying his corruptive tendencies by assuring him his rights, solving his problems, and removing the seeds of criminal behavior from his psyche. Consequently, crime is reduced to the lowest possible extent, and both the individual and society at large thrive in peace and security.
Forms of Punishment in Islam Islamic Law, in confronting the problems of life and setting down solutions for them, is established on two complimentary principles. These are: the stability and permanence of its basic tenets on the one hand and the dynamism of its subsidiary injunctions on the other.

For the unchanging aspects of life, Islamic Law brings fixed statutes. For the dynamic aspects of life that are affected by social development, broadening horizons, and advances in knowledge, Islamic Law comes with general principles and universal rules capable of being applied in a number of different ways and in a variety of circumstances.

When we apply these principles to the penal system, we find that Islamic Law has come with clear texts prescribing fixed punishments for those crimes that no society is free of, crimes that do not vary in their forms because they are connected with the constant and unchanging factors of human nature.

Islamic Law confronts other crimes by stating the general principle that decisively indicates their prohibition, leaving the punishment to be decided by the proper political authority in society. The political authority can then take the particular circumstances of the criminal into consideration and determine the most effective way to protect society from harm. In accordance with this principle, punishments in Islamic Law are of three types:

1. Prescribed punishments

2. Retribution

3. Discretionary punishments Crimes that fall under this category can be defined as legally prohibited acts that Allah forcibly prevents by way of fixed, predetermined punishments, the execution of which is considered the right of Allah.

These punishments have certain peculiarities that set them apart from others. Among these are the following:

1. These punishments can neither be increased nor decreased.

2. These punishments cannot be waived by the judge, the political authority, or the victim after their associated crimes have been brought to the attention of the governing body. Before these crimes are brought before the state, it may be possible for the victim to pardon the criminal if the damage done was only personal.

3. These punishments are the ‘right of Allah’, meaning that the legal right involved is of a general nature where the greater welfare of society is considered.

The following crimes fall under the jurisdiction of the fixed punishments:

1. Theft

Theft is defined as covertly taking the wealth of another party from its secure location with the intention of taking possession of it.

There are conditions that must be met before an act of theft mandates carrying out the prescribed, fixed punishment. They are:

i. The stolen property must be completely taken into the thief’s possession after being removed from the victim’s possession from a place where such property is generally secured.

ii. The stolen property must be movable.

iii. The stolen property must have an appraisable value. This entails the following:

a. The value of the stolen property must not be negated by being a substance whose use is prohibited by Islamic Law, such as wine and other forbidden things.

b. The stolen item must be among the things that people generally ascribe value to in their dealings with others, and it should not be among the things that people customarily overlook. If these conditions are met in the absence of any doubt that would prevent carrying out the punishment, it becomes mandatory to cut off the hand of the thief from the wrist joint. This is based on Allah’s words:

 
The thieves, male and female, cut off their hands.

 
2. Highway Robbery

Highway robbery is defined as the activity of an individual or a group of individuals who go out in strength into the public thoroughfare with the intention of preventing passage or with the intention of seizing the property of passers-by or otherwise inflicting upon them bodily harm. The evidence for the prescribed punishment for this crime is to be found in the following words of Allah:

 
The recompense for those who wage violent transgression against Allah and His Messenger and who go forth spreading corruption in the Earth is that they should be killed or crucified or that their hands and feet should be cut off on alternate sides or that they should be sent into exile. This is a disgrace for them in this world, and in the Hereafter they will have a great punishment, except for those who repent before you take hold of them. Then know that Allah is the Forgiving, the Merciful.
This verse has given a clear indication of many punishments to give a number of prescriptions for various manifestations of this crime. Each manifestation of this crime is fixed with its appropriate punishment.

In the case where the criminal repents and abstains from perpetrating this crime before being taken into custody, then the fixed punishment of highway robbery no longer applies to him, as clearly indicated by the previously mentioned verse. At the same time, he is still liable for any infringements that he may have made against the lives or property of others.

3. Fornication and Adultery

This is defined as any case where a man has coitus with a woman who is unlawful to him. Any relationship between a man and a woman that does not contain coitus does not fall under this category and does not mandate the prescribed, fixed punishment.

The prescribed punishment is different depending on the marital status of the perpetrator. A single person who has never been previously married receives one hundred lashes as stated by Allah:
The fornicatress and the fornicator, give each of them one hundred lashes.
If the person is married or has previously been married, then the punishment is stoning until death. This punishment has been established by a number of hadîth of the Prophet Muhammad (peace be upon him).

The following conditions must be met before either of these two punishments can be carried out:

1. Four trustworthy witnesses must give testimony that they have witnessed the act take place with absolute certainty. They must be in complete agreement about all the details of the act, and about its place, time, and circumstances. If their stories do not coincide, their testimony will be considered false. In this case, instead of the punishment for fornication being carried out on the accused, the prescribed punishment for bearing false witness will be carried out against the witnesses. Allah says:

 
- Why did they not produce four witnesses? Since they did not produce witnesses, then with Allah they are the liars.

- Those who accuse chaste women then do not come with four witnesses, flog them eighty lashes and never accept their testimony. They are the sinful ones.
It is obvious that the one who commits fornication in the plain sight of four witnesses whereby they can see every detail of his crime is a person who is flagrant in his behavior, who has little regard for religion or for social values, and if he is married, has little regard for his relationship with his wife.

This person fully deserves a severe punishment. At the same time, it must be known that there is no documented case in Muslim history – to the extent of our knowledge – where the prescribed punishment for fornication was carried out on the testimony of witnesses. In most cases, this punishment was carried out at the wish of the perpetrator in order that he may purify himself of the sin and as a means of repentance.

2. There must be no cause for doubt that can make the punishment fall away. If any doubt is present, or any way out is found for the accused, the punishment is not to be carried out, because Allah’s Messenger (peace be upon him) said: “Do not carry out the prescribed punishments when there is doubt.”

Some things should be made clear at this point. The first is that if a person becomes weak and falls into this sin, it is preferable for him to conceal it from others and not speak about it or admit to it. Instead, he should repent, seek Allah’s forgiveness, and try to make up for it by doing righteous deeds. He should not despair of Allah’s mercy.

This is because Allah’s Messenger has said: “Whoever comes with one of these filthy acts should conceal it as Allah has concealed it.”

Allah says:
- Those who, if they commit an indecency or wrong themselves, remember Allah and seek His forgiveness – and whoever forgives save Allah? – and do not persist in committing it, their reward is forgiveness from their Lord and gardens beneath which rivers flow.

- O my servants who have transgressed against themselves, do not despair of Allah’s mercy. Verily, Allah forgives all sins.
It should also be observed that, likewise, if someone is to see another Muslim commit this act, then he should conceal it from the public. Allah’s Messenger has said: “Whoever conceals the fault of a Muslim, Allah will conceal his fault.”

It must also be noted that Islam has made the home completely inviolable. It is not permissible to enter someone else’s home except with the permission of its occupants. Spying is likewise prohibited. Allah says:
O you who believe, do not enter homes other than your own until you have asked permission and greeted their inhabitants. This is better for you, in order that you may remember.
Also, if a person confesses to this sin of his own accord, it is necessary to determine if he is of sound mind and in possession of all of his faculties. It must also be certain that he is under no compulsion or coercion.

Beyond that, he is afforded the opportunity to retract his confession and he is encouraged to do so. If he retracts his statement, the prescribed punishment will not be carried out. This is what Allah’s Messenger (peace be upon him) did with Mâ`iz when he confessed to committing adultery. Allah’s Messenger (peace be upon him) turned away from him many times while he repeatedly said: “I have committed adultery, so purify me.” Allah’s Messenger (peace be upon him) only turned his face away.

Then he said: “Maybe you only kissed” and: “Maybe you were drinking.” In spite of this the man was insistent. Then, when the people were going to administer the punishment, he denied everything and fled. They informed Allah’s Messenger (peace be upon him) of this and he said: “Why not leave him to repent so Allah can forgive him.”

The wisdom behind the prescribed punishment for fornication and adultery

If we look at all the punishments prescribed by Islamic Law, we see that they all have two inseparable qualities:

A. Excessive recourse to caution for the benefit of the accused and the large number of provisions that must be met before a punishment can be carried out.

B. The harshness and severity of the punishments.

This guarantees two things. First of all, it preserves the general security of society and reduces crime, due to the harshness of the punishments. The potential murderer who knows he will be killed, the potential thief who knows he will have his hand cut off, and the potential sexual offender who knows that he will be stoned or given a hundred lashes will think twice before going out and committing the crime. If, on the other hand, he knows that he will only be imprisoned for a few months or a few years, then he might not pay heed to the punishment and might not be discouraged from committing the crime.

Secondly, it safeguards the life of the accused and guarantees him that no punishment will be carried out until every excuse is exhausted and every reason for discarding the punishment is looked into.

If we look at fornication and adultery, we see that it is dealt with in this manner. The condition for establishing it – four reliable witnesses – is a very strict one, and the punishment is decisive.

If we look at the application of this punishment, we find many aspects of the wisdom behind it:

1. It preserves general peace and security, because one of the most important motives for murder is the violation of someone’s honor. Applying the punishment against fornication causes a decrease in one of the major causes of violating people’s honor, which in turn, reduces the frequency of murder. This has a direct, positive effect on public safety.

2. It protects the family. The family enjoys a special esteem in Islam. The widespread practice of extramarital sex is destructive to the family, undermines its integrity, and destabilizes the relationships between its members. The severe punishment for fornication and adultery has the effect of reducing its occurrence, which has a direct, positive effect on the family in two ways. Firstly, the family of the one who commits adultery share in the experience of his punishment, so they are discouraged from committing the act themselves, which brings stability to the family. Likewise, the family who had been harmed by the act of adultery benefits by the reduced opportunity for this crime afforded by this punishment, so its stability is increased.

4. False Accusation

This is defined as accusing the chaste, innocent person of fornication or adultery. It also includes denying the lineage of a person from his father (which implies that his parents committed fornication of adultery). False accusation includes any claim of fornication or adultery that is not backed up by a proof acceptable to Islamic Law.

The prescribed punishment for false accusation is given in the following verse of the Qur’ân:
Those who accuse chaste women then do not come with four witnesses, flog them eighty lashes and never accept their testimony. They are the sinful ones.
The verse prescribes two punishments. The first is eighty lashes. The second is that their testimony will never again be accepted. These two punishments are above and beyond the punishment that they will receive in the Hereafter if they do not repent. These punishments were prescribed to safeguard the reputations of people from being stained by those who have nothing to do except destroy others by circulating damaging rumors.

In order to safeguard honor and reputation, Islam came with two complementary solutions:

A. It inspires the motivational power of faith and the deterrent of moral conscience in its prohibition of backbiting, spying, and suspicion of others. Allah says:
O you who believe, avoid a lot of suspicion, for verily some suspicion is sinful, do not spy, and do not backbite one another.
B. It legislates a fixed, prescribed punishment for false accusation. So whoever is not deterred by faith and fear of Allah will be deterred by the punishment.

Drinking

One of the most important objectives of Islam is the realization of human welfare and the avoidance of what is harmful. Because of this, it “permits good things and prohibits harmful things.” Islam, thus, protects the lives of people as well as their rational faculties, wealth, and reputations. The prohibition of wine and the punishment for drinking it are among the laws that clearly show Islam’s concern for these matters, because wine is destructive of all the universal needs, having the potential to destroy life, wealth, intellect, reputation, and religion.

It may seem, at first glance, that drinking is damaging only to the intellect. In truth, it is equally destructive to life, wealth, reputation, and religion. This is because the habitual drinker becomes enslaved to his base desires, unable to entertain a higher thought or a noble purpose. In this way, his emotional sentiments are extinguished and his religious sensitivities are dulled so that they might never be revived. It is destructive of life. It causes incurable, fatal illnesses, above and beyond the damage it causes by provoking all sorts of conflict.

If we consider the losses incurred by the accidents, absenteeism in the workplace, unnecessary expenditure, and the treatments for the illnesses that it causes, we can see that it places great financial demands on the state. It removes from the human being that singular human quality of reason, by which man subjugates to his benefit everything in the Earth, and by removing this faculty, it makes him more akin to the beasts.

It weakens the value of social bonds, causing enmity and hatred between people, especially if we consider the words and actions that the drinker often directs at others.

These problems are the cause of a lot of harm and detriment. Therefore, Islam has decisively forbidden the use of wine.

Allah says:

 
O you who believe! Verily wine, gambling, idols, and divination are but the abominations of Satan’s handiwork, so abandon these things that perchance you will be successful. Satan only wishes to cause enmity and hatred between you through wine and gambling and to prevent you from the remembrance of Allah and prayer. Will you not then desist?
Since wine causes all of this material and spiritual harm, Islamic Law has imposed upon the drinker a fixed punishment.

6. Apostasy Apostasy is defined as a Muslim making a statement or performing an action that takes him out of the fold of Islam. The punishment prescribed for it in the Sunnah is execution, and it came as a remedy for a problem that existed at the time of the Prophet (peace be upon him). This problem was that a group of people would publicly enter into Islam together then leave Islam together in order to cause doubt and uncertainty in the hearts of the believers. The Qur’ân relates this event to us:

 
A group from the People of the Scripture said: ‘Believe in what came down upon those who believe at the beginning of the day, then disbelieve at the end of the day, so perhaps they might return from faith.

 
Thus, the prescribed punishment for apostasy was instituted so that apostasy could not be used as a means of causing doubt in Islam.

At the same time, the apostate is given time to repent, so if he has a misconception or is in doubt about something, then his cause of doubt can be removed and the truth clarified to him. He is encouraged to repent for three days.

 
2. Retribution
This is the second type of punishment in Islamic Law. This is where the perpetrator of the crime is punished with the same injury that he caused to the victim. If the criminal killed the victim, then he is killed. If he cut off or injured a limb of the victim, then his own limb will be cut off or injured if it is possible without killing the criminal. Specialists are used to make this determination.

Important Rules Regarding Retribution

1. Retribution is not lawful except where the killing or injury was done deliberately. There is no retribution for accidentally killing or injuring someone. Allah says:
- O you who believe, retribution is prescribed for you in the case of murder.

- There is retribution in wounds.
2. In the crimes where the criminal directly transgresses against another, Islam has given the wish of the victim or his family an important role in deciding whether or not the punishment should be carried out. Islam permits the victim to pardon the perpetrator, because the punishment in these crimes is considered the right of the victim. Islam even encourages pardon, promising a reward in the hereafter for the one who does. Allah says:

 
If anyone waives the right to retaliation out of charity, it shall be an expiation for him.

 
The pardon can either be to the payment of blood money, a fixed, monetary compensation, or can be total, where no worldly compensation is demanded. Allah says:
To forgive it is closer to piety.

 
3. The punishment must be carried out by the government. The family of the victim cannot carry it out.

The wisdom behind retribution:

With regard to Islamic punishments in general, and retribution in specific, we find that they have two complementary characteristics. The first of these is the severity of the punishment. This is in order to discourage the crime and limit its occurrence.

The second characteristic is the difficulty of establishing guilt, reducing the opportunities for carrying out the punishment, and protecting the accused. In this vein, we see the principle that punishments are waived in the presence of doubt, and that the benefit of the doubt is always given to the accused. Some prescribed punishments are even waived on the grounds of repentance, as we can see in the case of highway robbery. This is also seen in the permissibility of pardon in the case of retribution and the fact that pardon is encouraged and preferred.

These two elements complement each other in that crime is effectively discouraged, protecting society, and the rights of the accused are safeguarded by the fact that speculation and accusations cannot be grounds for punishment, and that the accused enjoys the greatest guarantee of justice and being spared the punishment whenever possible. Most people will abstain from committing crime, because of the severity of the punishment, and the punishments for these crimes will rarely be carried out. In this way, the general security of society and the rights of the individual are equally realized.

3. Discretionary Punishments
These are punishments that are not fixed by Islamic Law, for crimes that either infringe on the rights of Allah or the rights of an individual, but do not have a fixed punishment or a set expiation.

Discretionary punishments are the broadest category of punishments, because the crimes that have fixed punishments are few in number and all other crimes fall under the scope of this last category.

They are the most flexible type of punishment, because they take into consideration the needs of society and changing social conditions. Consequently, they are flexible enough to realize the maximum general benefit to society, effectively reform the criminal, and reduce the harm that he causes.

Islamic Law has defined different types of discretionary punishments starting from exhortations and reprimands to flogging, to fines, and to imprisonment. These discretionary measures are left to the decision of the legal authorities within the general framework of Islamic Law and the universal purposes of Islam that balance between the right of society to be protected from crime and the right of the individual to have his freedoms protected.

 
The Objectives of the Islamic Penal System 

 
The Islamic penal system has many objectives, the most important of which are as follows:

The First Objective: Islam seeks to protect society from the dangers of crime. It is common knowledge that if crimes are not countered with serious punishments, then society will be in grave danger. Islam seeks to make social stability and security widespread, making life in society secure and peaceful. It has made this consideration a platform for action, legislating punishments that will discourage crime. This purpose has been articulated by the following verse that discusses retribution and its effects on society:

 
There is (preservation of) life for you in retribution, O people of understanding, so perhaps you may become pious.

 
The murderer, or any other criminal for that matter, if he knows the extent of the negative consequences for himself that his crime will cause, he will think a thousand times before committing it. Awareness of the punishment will, in two ways, cause the criminal to abstain from committing the crime. The criminal who has already been subject to the punishment will most likely not return to the crime again. As for the rest of society, their awareness of the effects of this punishment will keep them from falling into the crime. To realize a general effect from the punishment, Islam has established the principle of publicly announcing when it will be carried out. Allah says:

 
A group of the believers should witness the punishment.
The Second Objective: Islam seeks to reform the criminal. The Qur’ân often makes mention of repentance in association with the crimes that it deals with, making it clear that the door to repentance is open whenever the criminal abandons his crime and behaves properly. It has made repentance a means of waiving a fixed punishment in some instances, like the punishment for highway robbery. Allah says:

 
…except for those who repent before you take hold of them. Then know that Allah is the Forgiving, the Merciful.

 
Allah says regarding the punishment for fornication:
It they both repent and mend their ways, then leave them alone. Verily, Allah is the Accepter of repentance, the Merciful.

 
Allah says after mentioning the punishment for false accusation:
… except for those who repent afterwards and makes amends, then verily Allah is the Forgiving, the Merciful. Allah says after mentioning the prescribed punishment for theft:

 
Whoever repents after his wrongdoing and makes amends, then verily Allah will accept his repentance and verily Allah is the Forgiving, the Merciful.

 
This objective is seen more frequently with regard to discretionary punishments, whereby it is incumbent upon the judge to take into consideration the circumstances of the criminal and what will insure his betterment.

The Third Objective: The punishment is a recompense for the crime. It is undesirable to treat a criminal lightly who threatens the security of society with danger. The criminal should receive his just recompense as long as he is pleased with taking the path of evil instead of the path of righteousness. It is the right of society to be secure in its safety and the safety of its individual members. The Qur’ân has asserted this objective when mentioning a number of punishments. Allah says:
- The thieves, male and female, cut off their hands as a recompense for what they have earned.

- The recompense for those who wage violent transgression against Allah and His Messenger and who go forth spreading corruption in the Earth is that they should be killed or crucified or that their hands and feet should be cut off on alternate sides or that they should be sent into exile.

 
Punishment has always played an integral part in the concept of justice. We all know or at least expect that if you do something wrong you are subject to punishment in some way or another. This is only fair. Humankind is charged with the responsibility for the choices they make. This is because they are created with the freedom of choice and granted the moral sense of right and wrong. Accordingly, one is not to be punished for the actions of others, or for acts done under duress or because of insanity. All people are equal and innocent until proven guilty: only then punishment is considered.

 
Islam considers crime an act of injustice towards society, a sin against oneself and a transgression against Allah. Punishment is not atonement nor does it erase the sin. A sin is only forgiven through repentance. However, crime is an act of inflicting harm upon society that cannot be forgiven by repentance alone.

 
The object of all penal systems is to punish the offender and protect society from reoccurrence of the crime. Punishment serves as an educational purpose, as well as a form of crime deterrent and prevention and the system used must achieve this aim. However, if societies were to rely only upon their systems of punishment, they would fail miserably. An environment of healthy morality and faith must be the norm, where to do right is encouraged by all and to do wrong is discouraged and found difficult. In fact, encouraging right and forbidding wrong is a foremost duty in Islam.

 
Most penal systems in today's societies are based and dependent on the current social sentiment. In Islamic law, punishment is based upon divine revelation. There is no leeway for sentiment or possibility of change. These laws were established by the Creator who is Infinitely Wise and Merciful, who knows the true affairs of the world better than humankind. To seek justice without recourse to divine help would be tragic, as all other sources of knowledge and theory are flawed by human imperfection.

 
Justice is the ruling spirit of Islamic law, which is known as the Shari`ah. One of the main reasons for which the Prophets, peace be upon them all, were sent were to guide mankind to justice.

 
In this connection, Allah, Most High, says, "We sent our messengers with clear signs and sent down with them the Book and the Balance so that men may conduct themselves with justice." (Al-Hadid: 25) "O you who believe, be upholders of justice, witnessing for Allah alone." (An-Nisaa': 135)

 
Changes in the world as well as the changing definition of concepts such as "civilized", "equality", "freedom", and "justice" have caused a critical light to shine upon Islamic laws. Such critics charge that the Shari`ah, in view of the changing world, is an outdated system of laws in need of amendment, replacement or abolishment. Views of this sort express rejection of divine guidance and even worse, rejection of the wisdom of our Lord who has put us on this earth with a purpose in life and a set of rules to live by and achieve that purpose. These rules are the ultimate criterion of justice and mercy and cannot nor need not be changed or measured against the changes and desires of society. To imply such is to imply imperfection in Allah as Lord and Master of the Universe.
 
CAPITAL PUNISHMENT
Life is sacred, according to Islam and most other world faiths. But how can one hold life sacred, yet still support capital punishment? The Qur'an answers, "...Take not life, which God has made sacred, except by way of justice and law. Thus does He command you, so that you may learn wisdom" (6:151).

 
The key point is that one may take life only "by way of justice and law." In Islam, therefore, the death penalty can be applied by a court as punishment for the most serious of crimes. Ultimately, one's eternal punishment is in God's hands, but there is a place for punishment in this life as well. The spirit of the Islamic penal code is to save lives, promote justice, and prevent corruption and tyranny.

 
Islamic philosophy holds that a harsh punishment serves as a deterrent to serious crimes that harm individual victims, or threaten to destabilize the foundation of society. According to Islamic law (in the first verse quoted above), the following two crimes can be punishable by death:
Intentional murder Fasad fil-ardh ("spreading mischief in the land")

 
Intentional Murder
The Qur'an legislates the death penalty for murder, although forgiveness and compassion are strongly encouraged. The murder victim's family is given a choice to either insist on the death penalty, or to pardon the perpetrator and accept monetary compensation for their loss (2:178).

 
Fasaad fi al-ardh
The second crime for which capital punishment can be applied is a bit more open to interpretation. "Spreading mischief in the land" can mean many different things, but is generally interpreted to mean those crimes that affect the community as a whole, and destabilize the society. Crimes that have fallen under this description have included:

 
Treason / Apostacy (when one leaves the faith and joins the enemy in fighting against the Muslim community)

 
Terrorism
Land, sea, or air piracy
Rape
Adultery
Homosexual behavior

 
Actual methods of capital punishment vary from place to place. In some Muslim countries, methods have included beheading, hanging, stoning, and firing squad. Executions are held publicly, to serve as warnings to would-be criminals.

 
It is important to note that there is no place for vigilantism in Islam -- one must be properly convicted in an Islamic court of law before the punishment can be meted out. The severity of the punishment requires that very strict evidence standards must be met before a conviction is found. The court also has flexibility to order less than the ultimate punishment (for example, imposing fines or prison sentences), on a case-by-case basis.

 
"And fight in the way of Allah those who fight you. But do not transgress limits. Truly Allah loves not the transgressors."

 
- Qur'an, Surah Al-Baqarah (2:190)

 
The dangerous escalation of violence in the world is disturbing to all people of conscience, from September 11 to the Middle East battles, and other random acts of violence perpetrated at innocent civilians.

 
In the fight against terrorism of all forms, it is important to understand who or what is our enemy. We can only fight against this horror if we understand its causes and motivations. What motivates a person to lash out in this violent, inhumane way? That is something that all of us -- mental health professionals, politicians, and common people -- need to understand, so that we can address the issues more honestly, prevent more violence, and find ways to work towards lasting peace.
In Islam, several things are clear:

 
Suicide is forbidden. "O ye who believe!... [do not] kill yourselves, for truly Allah has been to you Most Merciful. If any do that in rancour and injustice, soon shall We cast him into the Fire..." (Qur'an 4:29-30).

 
The taking of life is allowed only by way of justice (i.e. the death penalty for murder), but even then, forgiveness is better. "Nor take life - which Allah has made sacred - except for just cause..." (17:33).

 
In pre-Islamic Arabia, retaliation and mass murder was commonplace. If someone was killed, the victim's tribe would retaliate against the murderer's entire tribe. This practice was directly forbidden in the Qur'an (2:178-179).

 

Following this statement of law, the Qur'an says, "After this, whoever exceeds the limits shall be in grave chastisement" (2:178).

 

No matter what wrong we perceive as being done against us, we may not lash out against an entire population of people.

 
The Qur'an admonishes those who oppress others and transgress beyond the bounds of what is right and just. "The blame is only against those who oppress men with wrongdoing and insolently transgress beyond bounds through the land, defying right and justice. For such there will be a chastisement grievous (in the Hereafter)" (42:42).

 
Harming innocent bystanders, even in times of war, was forbidden by the Prophet Muhammad (peace be upon him). This includes women, children, noncombatant bystanders, and even trees and crops. Nothing is to be harmed unless the person or thing is actively engaged in an assault against Muslims.
"...If anyone kills a person - unless it be for murder or for spreading mischief in the land - it would be as if he killed all people. And if anyone saves a life, it would be as if he saved the life of all people" (Qur'an 5:32).

 

 

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