ISLAM & CRIMINAL JUSTICE

Application of Islamic Ethics - I

Western and Islamic Views of Crime and Punishment

PART I

WESTERN VIEW

The Western view of Islamic Justice is that it is harsh, medieval and primitive; this is based on the image of chopping off heads, hands, stoning, etc. Modern civilization has left all this at hand.

THE CORE OF CAPITAL PUNISHMENT IN THE WEST

According to the Western Judicial system, the main goal of capital punishment is: 1. Retribution: justification looking to the past and applying punishment or revenge 2. Deterrence: prevention looking to the future 3. Reformation: reforming the individual; making him or her better to be released back into society

HISTORICAL EXPERIENCE - I
Time 1930s in the UK Western Approach to Capital Punishment (death penalty) corporal punishment of no value and should be abolished

1950s in USA

Retribution no longer a goal / rehabilitation and reformation are the objectives

1965 in UK 1970s in USA 1970s in California

Death penalty (capital punishment) abolished Capital punishment declared unconstitutional Capital punishment abolished

HISTORICAL EXPERIENCE - II
Time 1970 in UK A report published regarding the time period of 1960-1970 showed that 172 convicted murderers were released. Of that number: -most had served 9 years of a life sentence - 5 had served 12 years or more - 9 had served 6 years or less - 1 had only served 6 months In the end, a large number of them resulted in killing again and returning to prison Admission that the penal system has failed in reforming and rehabilitating criminals. Prison has become a school for graduating hardened criminals. There are many repeat offenders. Society pays for their crimes .

2000 present

HISTORICAL EXPERIENCE - III

Time 2000 USA

Western trend now sees that capital punishment is being reinstated in many States within the United States. . .

2000

UK

There are now fresh demands to bring back the death penalty.

ISLAMIC CRIMINAL JUSTICE

There are 3 types of punishments: 1. Hudood (Fixed Punishments set by Allah in

Quran or by statements in the Sunnah)

2. 3.

Qisas (Retaliation Punishment) Tazeer (Discretionary punishment)

APPLICATION OF ISLAMIC LAW - 1

We look at Islamic Law and ask ourselves is it applicable? Is it relevant or beneficial? Examples:

Arabian Peninsula
During

the Ottoman Empire / no Hudood Saudi Government reinstated Hudood

Population of KSA in 2000 was 8 million; Population of NYC was 8,391,881

Sudan
Introduction

of Sharia Law saw a 40% decrease of crime within the following 6 months.

APPLICATION OF ISLAMIC LAW - 2

Another

aspect of the application of Islamic Law is that it allows the family who suffered the loos to have the right to decide (execution, compensation or pardon); whereas, in the West, the decision is left up to the individual State as to how to punish the criminal.

Islam & Criminal Justice

PART II

ISLAMIC LAW / CRIME - I

Islamic law or any other type of law will not prevent crimes of passion where a sudden strong impulse such as rage or heartbreak overtakes a person and he kills another human being. For example, one man kills another over an argument, a husband finds his wife has been unfaithful, etc. Sometimes, in court, this is described as temporary insanity.

ISLAMIC LAW / CRIME - II

Islamic law will stop the pre-meditated murder. In the case of murder, there are 3 options:
1. 2.

3.

Execution, but this is not automatic, but remains the first option Diyah or Blood money: compensation which the family accepts for their loss Pardon: family members and not the government have the ability to pardon the murderer, but all members must agree.

ISLAMIC LAW / CRIME - III

This general law will be applied swiftly only if the evidence is 100% positive that the particular person did commit the murder. There can be no doubt. The evidence must be irrefutable (later no one can come and prove that a mistake was made) In the case of doubt the fixed law is set aside The Prophet (peace and blessing be upon him) said, Ward off legal penalties with suspicions.

PART III
Crime and Punishment in Islam

CRIME & PUNISHMENT IN ISLAM - I

Why do we need Islamic Law in our societies? 1. 2. 3.

CRIME & PUNISHMENT IN ISLAM - II

Security and stability are basic human needs Man has been conscious of the need for security since the beginning of his life on Earth. We know this because of all of the many ethical systems created some of which have ancient beginnings.

CRIME & PUNISHMENT IN ISLAM - III

Allah sent these laws to secure the welfare of humanity by establishing a righteous society. Indeed We have sent Our Messengers with clear proofs, and revealed with them the Scripture and the Mizan that mankind may keep up justice. And We brought forth iron wherein is mighty power, as well as many benefits for mankind [Hadid:25]

CRIME & PUNISHMENT IN ISLAM - IV

Additional proof.... Verily, Allah orders justice and kindness, and giving (help) to the relatives, and He forbids immoral sins, and evil and tyranny. He admonishes you, so that perhaps you may take heed.) [An-Nahl: 90]

CRIME & PUNISHMENT IN ISLAM - V

Proof: God wants ease for you, not hardship
[Baqarah:185]

CRIME & PUNISHMENT IN ISLAM - VI

These man-made laws have been recently been developed and completed only within the last few centuries This has been the result of a long process of trial and error

CRIME & PUNISHMENT IN ISLAM - VII

By contrast, the Law of Islam, sent down to the Prophet Muhammed (peace and blessings be upon him) in its complete form Islamic Law is a complete legal system that takes into consideration the changing circumstances of society as well as the constancy and permanence of human nature.

CRIME & PUNISHMENT IN ISLAM - VIII

Islamic law contains comprehensive principles and general rules

This

is for dealing with all the problems and circumstances that life may bring in any time and any place.

Also has immutable punishments for certain crimes not affected by changing conditions and circumstances.

UNIVERSAL PRINCIPLES

There are 5 universal principles necessary for human welfare to be secured. The Islamic penal system is amied at preserving these 5 necessities:
1.

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

UNIVERSAL PRINCIPLES & FIXED PUNISHMENTS

1.

transgression against life: (laws against murder or assault retribution) 2. transgression against religion: laws against apostasy 3. transgression against reason: laws against drinking alcohol, drugs and intoxicants 4. transgression against lineage: laws against fornication, false accusations of adultery 5. transgression against property: laws against theft & highway robbery

PART IV
Forms of Punishment in Islam

FORMS OF PUNISHMENT IN ISLAM

Islam confronts the problems of life by setting down solutions by basing its laws on two principles
Stability

and Permanence

Dynamism

FORMS OF PUNISHMENT IN ISLAM

Stability

and Permanence For the unchanging aspects of mans life, Islamic law brings fixed laws
These are based on 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.
Dynamism

FORMS OF PUNISHMENT IN ISLAM

Dynamism aspects of life affected by

social development, broadening horizons, advances in knowledge

these laws are capable of being applied in a number of different ways and in a variety of circumstances Islamic law confronts other crimes by stating the general principle that decisively indicates their prohibition

Then

the punishment is to be decided by the proper political authority in society Circumstances are taken into consideration and the most effective way to protect society from harm.

FORMS OF PUNISHMENT IN ISLAM

In accordance with this principle, punishments in Islamic Law are of three types Prescribed punishments: Fixed Hudood
Qisas

Retribution

Discretionary Punishments Tazir

HUDOOD PRESCRIBED PUNISHMENTS

Fixed, predetermined punishment This is the right of God Characteristics of these laws:

They can neither be increased nor decreased They cannot be waived by the judge, political authority, or victim once it has been brought to court (before the crime is brought before the government, the victim may pardon the criminal if the damage was only personal Rights of Allah - greater welfare of the society is considered

Crimes that fall under the jurisdiction of fixed punishments: Theft Highway Robbery Fornication and adultery False accusation Drinking apostasy

RETRIBUTION I QISAS
The

perpetrator of the crime is punished with the same crime he committed 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... Proof: Allahs saying,

Oh you who believe, retribution is prescribed for you in the case of murder... [Baqarah: 178] And: there is retribution in wounds [Al
Maida:45]

RETRIBUTION I I

QISAS

2. In crimes where the criminal directly transgresses against another, Islam has given 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 criminal because this is considered the right of the victim. Islam rewards the victim for pardoning the criminal ...
... If anyone waives the right to retaliation out of charity, it shall be an expiation for him. [Al Maidah: 45]

RETRIBUTION III

QISAS

The pardon can either be to the payment of blood money (diyah) a fixed, monetary compensation Or can be total no compensation is demanded to forgive it is closer to piety [Baqarah:237] 3. The punishment must be carried out by the government. It cannot be done by the family of the victim.
3.

Wisdom of Retribution:

RETRIBUTION IV
Wisdom

QISAS

Deterrent

General Security for society / Rights of individual preserved

If there is doubt

WISDOM BEHIND RETRIBUTION

Wisdom of Retribution punishments in general and retribution in particular -- this wisdom has 2 characteristics: The first is that the severity of the punishment acts as a deterrent The second is that in the case where there is difficulty of establishing guilt,

Reduces the opportunities for carrying out the punishment Protects the accused

WISDOM BEHIND RETRIBUTION

o

Where there is doubt, punishment is set aside

o

The benefit of the doubt is given to the accused

Some prescribed punishmentsa re even waived on the grounds of repentance, i.e. Highway robbery These two elements (severity of crime and difficulty of establishing guilt complement eachotehr
o o

Crime is discouraged (protecting the society) Rights of accused are protected

DISCRETIONARY PUNISHMENT TAZIR

Punishments not fixed by Islamic Law Crimes that either infringe on the rights of God or the rights of the individual

Do not have fixed punishment or set expiation

DISCRETIONARY PUNISHMENT TAZIR

These types of punishments range from

Exhortations Reprimands Flogging Fines Imprisonment

These discretionary measures are let to the decision of the legal authorities

OBJECTIVES OF THE ISLAMIC PENAL SYSTEM -1

The objectives are three: To protect society from the dangers of crime To reform the criminal The punishment is a recompense for the crime

OBJECTIVES OF THE ISLAMIC PENAL SYSTEM -2

The first objective: To protect society from the dangers of crime

And there is (preservation of) life for you in retribution, O people of understanding, that you may become pious.

OBJECTIVES OF THE ISLAMIC PENAL SYSTEM -3 Islam has established the principle of publicly announcing the punishment when it is to be carried out

A group of the believers should witness the punishment [An-Nur 24:2]

OBJECTIVES OF THE ISLAMIC PENAL SYSTEM -4

The second objective: To reform the criminal except for those who repent before you take hold of them. Then know that God is the Forgiving, the Merciful. [AlMaidah 5:34]

In context with the crime of Highway Robbery

OBJECTIVES OF THE ISLAMIC PENAL SYSTEM -4

The second objective: if they repent and do righteous good deeds, leave them alone. Surely, Allah is Ever the One Who accepts repentance, (and He is) Most Merciful.)
[An-Nisaa: 16

In context with the crime of fornication

OBJECTIVES OF THE ISLAMIC PENAL SYSTEM -4

The second objective:

Allah says after mentioning the punishment for false accusation:

except for those who repent afterwards and make amends, then verily God is the Forgiving, the Merciful.

OBJECTIVES OF THE ISLAMIC PENAL SYSTEM -4

The second objective:

Allah says after mentioning the punishment for theft:

But whosoever repents after his crime and does righteous good deeds, then verily, Allah will pardon him. Verily, Allah is Oft-Forgiving, Most Merciful.)

OBJECTIVES OF THE ISLAMIC PENAL SYSTEM

The third objective: The punishment is a recompense for the crime ... The thieves, male and female, cut off their hands as a recompense for what they have earned [Al-Maidah:38]

OBJECTIVES OF THE ISLAMIC PENAL SYSTEM

The third objective:

The recompense of those who wage war against Allah and His Messenger and do mischief in the land is only that they shall be killed or crucified, or their hands and their feet be cut off on opposite sides, or be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter.