The Islamic perspective on crime and punishment has been derived from the Qur'an, the Sunnah (prophetic traditions), and centuries of jurisprudential development. Rooted in the divine imperative for justice (Adl) and compassion (Rahmah), Islamic criminal law seeks not merely to punish offenders but to protect society, deter crime, reform individuals, and uphold a moral order. However, contemporary discussions are often clouded by sensationalized portrayals, political manipulations, and a failure to appreciate the system's internal logic: its stringent evidentiary requirements, and its emphasis on social justice as a prerequisite for penal application. This editorial aims to provide a nuanced exploration of the Islamic framework for crime and punishment, examining its foundational principles, objectives of Islamic penal system, acceptance of evidence, conditions for the confession of crime, and describe crimes for that Hadd punishment are given.
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Understanding the Islamic Framework of Crime and Punishment
The Islamic approach to crime and punishment is an integral part of the Shariah, which is a comprehensive code of life encompassing moral, ethical, social, and legal dimensions. Moreover, the penal system within Shariah aims to achieve the Maqasid al-Shariah, the higher objectives of Islamic law, which classically include the preservation of Religion (Deen), Life (Naffs), Intellect (Aql), Lineage/Progeny (Nasal), and Property (Mal). Crimes are seen as transgressions that threaten these fundamental values; and punishments are designed to protect them, deter future offenses, and offer a path to redemption.
Islamic Criminal Law: Crime Categories and Punishments
Islamic criminal law traditionally categorizes offenses and their corresponding punishments into three main types:
1. Hudud (Hadd)
These are crimes with fixed, divinely ordained punishments mentioned in the Qur'an or Sunnah. They include offenses like theft (Sariqa), highway robbery (Hirabah), illicit sexual relations (Zina), false accusation of Zina (Qadhf), and consumption of alcohol (Shurb al-Khamar). The evidentiary standards for Hudud crimes are exceptionally high and rigorously applied. The philosophy is that these punishments serve as strong deterrents, but their strict requirements mean they are, in principle, rarely applied. Any doubt leads to the suspension of the Hadd punishment.
2. Qisas (Retaliation/Restitution)
This applies to crimes of homicide and intentional bodily harm. It allows for retribution in kind ("an eye for an eye") but strongly encourages and prioritizes forgiveness (Afw) and the acceptance of blood money or compensation (Diyyat) by the victim or their heirs. Furthermore, the emphasis on mercy and reconciliation is a hallmark of Qisas.
3. Ta'zir (Discretionary Punishment)
This is the broadest category, covering all offenses not falling under Hudud or Qisas, or where Hudud conditions are not met. Punishments are determined by the judge (Qadi) or the state based on the nature of the offense, the offender's circumstances, and the public interest. Additionally, Ta'zir punishments could range from admonition, fines, and flogging to imprisonment or, in extreme cases for grave crimes threatening societal order, capital punishment.
Acceptance of Evidence (Law of Evidence as a Tazkia-al-Shahood)
Islamic law requires the following conditions to be fulfilled for the acceptance of the evidence to avoid any sort of injustice by punishing an innocent because of false accusations:
- The number of the witnesses must not be less than four.
- All witnesses must be men particularly in the crime of 'Zina'. In other cases where women's evidence is acceptable two women would be counted equal to one man.
- The witnesses must have seen the incident of crimes by himself or otherwise the evidence would not be accepted.
- The witness must be Muslim. Witnesses must be just and pious and they themselves must not be corrupt. The witnesses must not have any sort of enmity or malice against the accused.
Conditions in Confession
In the cases of confession, Islam lays down certain conditions:
- The person (man or woman) confessing must be adult.
- He must not confess because of any force.
- The confession must be uttered four times.
- The confession must be in court before a jury.
It is also a condition that the punishment be given openly and publicly.
Crime for Hadd punishments
In the Quran the word 'Had' is always used in the plural 'Hudud'. It means the limits laid down by God; for example, the provisions of the law whether commands or prohibitions. In Islamic Criminal Law, Hadd means an unalterable punishment prescribed by Divine law, which is considered the right of God. The crimes for which Hadd punishments apply are considered as crimes against religion because the person who commits such crimes violates the rules of God and transgresses the bounds made by Him. The Had is a right or claim of Allah (Haqq Allah) and, therefore, no pardon or amicable settlement is possible.
1. Zina
“Zina refers to fornication, means sexual relations between persons who are not in a state of legal matrimony.” The Had for this crime is stoning to death for the married, 100 lashes for unmarried and 50 for slaves. The Hadd punishment for the unmarried who commits the crime of unlawful intercourse is mentioned in the Quran while the punishment for the married guilty of this crime is sanctioned by Sunnah. However, Hadd should not be applicable to the insane and to the minors. In this regard, a full investigation is also condition. If the required number (4 witnesses) is incomplete, the Hadd would not be implemented. However, in the absence of four witness, confession of the accused is be deemed conclusive evidence; Qadhf is slander in a special sense. If anyone accuses a respectable person of incontinence without being able to bring four persons to support him, he is liable by law and a definite punishment (Hadd) of 80 lashes for Qadhf.
2. Al-Sariqa
Al-Sariqa means theft. The Quran says, "As to the thief, male or female, cut off his or her hands: a punishment by way of example from God for their crime; and God is Exalted in Power.” The Cannon law jurists are not unanimous as to the value of the property stolen, which could involve the penalty of the cutting off the hand. The majority hold that petty thefts are exempt from this punishment. The general opinion is that only one hand should be cut off for the first theft, on the principle that “If thy hand or thy foot offend thee cut them off and cast them from thee,” apparently in the age of Jesus thieves were crucified. It should be mentioned in this connection that the second Caliph Omar suspended this punishment during the years of famine.
3. Al-Haraba
Al-Haraba means highway robbery. Many crimes, including treason against the state, may come under Al-Haraba. Punishment for this crime is execution, crucifixion, or the cutting off hands and feet from opposite sides or exile from the land.
4. Apostasy
It is called ridda; it might be committed verbally by denying a principle of belief or by an action. For example, treating a copy of Quran with disrespect. In the Quran the apostate is threatened with punishment in the next world only, “The wrath of God will fall upon him.” The death penalty of Al-Murtad came in a tradition “Slay him, he who changes his religion.”
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5. Shurb al-Khamar
Shurb al-Khamar means drinking wine. Hadith has many utterances against this theme: “Wine is the key of all evil” and “Cursed is he who drinks, buys, sells wine or causes others to drink it.” As to punishment of him who drinks wine, Hadith tells that Prophet Mohammad and his successor Abu Bakr were wanting to inflict 40 blows by means of palm branches or sandals. Under Omar's Caliphate, it was 80 lashes for the first time, 80 lashes in the second time, and death penalty for the third.
The Islamic framework of crime and punishment is deeply rooted in divine principles of justice, mercy, and social justice, emphasizing both deterrence and reform. Its stringent evidentiary standards and clear delineation of Hudud punishments reflect a commitment to uphold moral and societal order while safeguarding individual rights. However, the application of these laws requires meticulous adherence to procedural conditions, ensuring that justice is not compromised. Furthermore, the system aims to balance retribution with mercy, prioritizing social welfare, moral integrity, and divine law. Understanding this nuanced approach encourages a more informed discussion around Islamic criminal law and its relevance and application in contemporary contexts.
