Islamic Criminal Justice: Is it Barbaric?

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Details of Fatwa
Title of FatwaIslamic Criminal Justice: Is it Barbaric?
Date of Reply31/Mar/2005
Topic Of FatwaMisconceptions, Misconceptions
Country Applied Algeria
Question of FatwaDear scholars, As-Salamu `alaykum waramatullahi wabarakatuh. I would be very glad if you kindly respond to this sensitive issue: It relates to the ongoing accusations levied by the west against Islam and the Shari`ah. In western modern culture Islam is presented as a particularly violent and cruel religion, its law is termed as barbaric. That’s why we hear many uproars being stirred nowadays by the western media against Islam. I would like you scholars to enlighten us on the significance of Islamic criminal justice, especially the aspect of punishment.
Name of Mufti IOL Shari`ah Researchers
Content of Reply
Wa `Alaykum As-Salaam Waramatullah Wabarakatuh!

In the Name of Allah, Most Gracious, Most Merciful.

All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.


Dear questioner, we’d like to voice our appreciation for your forwarding this interesting question to us. We pray to Almighty Allah to make our humble efforts, exerted solely for His sake, come up to your expectation.

As regard your question, we want to make it clear that human history is plunged into persistent theme of tragedy and ruin due to man’s pursuit of justice without recourse to divine help, refusing to grasp the light of guidance lit for him by the Merciful Lord, Who clearly understands the nature of man, and, thus, has revealed to him the just laws and teachings that will regulate his life and perfect his affairs.

However, man will be deprived of this guidance as long as he refuses to obey the Source of guidance, Almighty Allah; man will never find justice no matter how fervently he pursues it, as long as he keeps deviating away from the straight path set for him by the Creator of the Universe. So justice simply lies in man’s obeying Allah by doing what He has laid down as ‘right’ and avoiding what He has laid down as ‘wrong’. It is only Allah who can establish, in perfect manner, mutual rights and obligations and consequent rewards and punishments on the basis of absolute standards of justice.

What you said about the way Shari`ah or Islam is perceived by the West is not something eerie or strange, for it reflects the belief held by most Westerners that they are the bulwark of civilization and democracy, and anything beside their ideologies and dogmas are matters of old ages that can no longer be applied in our recent world, even if that matters happen to be laid down by Allah.

But it’s our duty as Muslims not to give in to such beliefs, for we are a nation of a unique culture; we are supposed to be leaders, not subordinates; our voices should be raised high, clarifying to the world the true nature of our religion. In this regard, we would like to cite for you the following:

The Qur’an most certainly does prescribe corporal punishment for certain serious social crimes and it does lay down the principle of retribution, or qisas it is very emphatic, too, about the crucial role of the family in human society and therefore insists on assigning different well-defined roles to men and women; and it does lay down many other regulations and laws and expects Muslims to obey the eternally valid injunctions of Allah and His Prophet.

But will these and similar provisions of the Shari’ah really plunge society back into darkness? Are they inhuman and barbaric? Are they an indicator of Islam’s inability to keep pace with the demands of human progress? The issues need to be examined seriously to determine the place and values of the Shari’ah and its provisions in the ultimate order of human civilization and happiness. The need for this examination is especially acute in the view of the dogmatic position adopted by the West on these questions. A host of Western writers have said it, and the media continue to harp on the same theme: unless Islam is prepared to relent on these and other legal provisions of the Shari’ah ‘there can and will be no accommodation; only a continuation of Western rejection of Islam’

No apologies or excuses are needed to explain or make acceptable to the West what has been so clearly laid down by the Qur’an and the Prophet in this regard and what has been so consistently accepted and adhered to by Muslims. There should be no place in dialogue with the West for such tortuous, self-deprecating arguments as: ‘Corporal punishment is prescribed but hedged in with such unworkable requirements of evidence that it is virtually impossible to carry it out. Or, at least, it cannot be carried out unless an "ideal" just society is established, when it will in any case become unnecessary’.

Why those who advance this specious logic should think that Allah would lay down things which were impossible to practice is not made clear. As if He does not know how to say what He means, and say it clearly! Such excuses are unfair to the Qur’an and the Prophet, and an affront to their wisdom, and at the same time illogical and implausible to the unconvinced.

PUNISHMENT:

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.

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 Allah. It can be wiped away only by Allah, and that He does when a person turns to Him, truly repentant and seeking forgiveness. Between man and Allah, 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.

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 Allah-consciousness and taqwa - that inherent and innate quality which makes him want to refrain from what displeases Allah 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. Allah 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 (literally referred to as ‘boundaries’) and not punishments: they are liabilities incurred as a result of crossing the boundary set by Allah. An important consequence of these hudud having been laid down by Allah, 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 Allah; 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 Allah 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 Allah…) (Al-Ma’idah 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 Allah. They are expected to build up in the society a deep feeling of abhorrence for transgression against fellow human beings, and therefore against Allah - a transgression which, according to the Qur’an, is the root cause of all disorders and corruption in human life.

RETRIBUTION (QISAS):

Apart from punishments for transgressions like extra-marital sex, theft, libel and drinking, the Qur’an also provides for the principle of qisas – retribution. 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 judgment in the hope of being forgiven by Allah 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 Allah.

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.

CONCLUSION:

The Shari’ah 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.

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.

Excerpted, with slight modifications, from www.iiu.edu.my

If you have any further questions, please don't hesitate to write back!

May Allah guide you to the straight path, and guide you to that which pleases Him, Amen.

Allah Almighty knows best.





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