Praise be to Allah, Lord of the worlds, and the most honorable prayer and peace be upon the master of the first and the last, our master, Muhammad, the chosen, the trustworthy, and upon his pious and pure family, his faithful companions, and those who followed them in goodness until the Day of Judgment, may Allah Almighty be pleased with them all.

Over time, there have been many arguments of the punitive system in Islam and how they might be against human rights. This kind of argument is old and new, as we hear it from time to time. There are certain points that we have to bear in mind when discussing such a matter. The first point is that the punishments in Islam were revealed to our Prophet Muhammed peace be upon him in in the Quran, and some of them were stated in the Hadith, whether he said it or performed it. The Islamic punishments are Allah’s judgement and He, being the creator of all mankind, knows the best for us. They are what we may call “the divine penal law”. Some Islamic scholars submitted the philosophical ideas behind these punishments. Now let us go in some details in these philosophical arguments.

The question often arises about the penal system in Islam in comparison to the international charters and declarations on human rights, since the punitive policy in Islam includes penalties that some people claim are incompatible with human rights, such as retribution or what is called “qisas” (executing the death sentence against the killer), cutting off the hand of the thief, and flogging the single adulterer, in addition to stoning the married adulterer.

Here, we have to bear in mind that any penal system in divine and man-made laws aims to achieve general and private deterrence. Social safety is one of the main legitimate purposes behind Islamic laws, that is through deterring the public in order to prevent the commission of crimes, and deterring the person who commits a crime so that he/she does not return to committing the same crime or any other crime in the future. The prime Islamic goal is keeping society clean and free from any crimes that may constitute an assault on the rights, freedoms, lives, tranquility and property of individuals. This would preserve public order, public security, health, tranquility, and morals. Protecting individual rights has its positive reflection on public safety.

It becomes clear to us, when we think about this idea, that the goal of those strict punishments in Islam against the perpetrators of crimes and the general philosophy of punishment is to protect society, its integrity and social cohesion. In practical application, it is assumed that there are certain conditions that must be available in order to impose these penalties against the perpetrators of the crimes. For example, to inflict the penalty for the crime of adultery (flogging or stoning) the availability of four eye witnesses is required. They have to eye witness the actual process of sexual penetration, which is unlikely if not impossible in most cases.  Thus we see that the punishment is strong and should make a potential perpetrator of this crime think twice, but for the conditions to be met for it actually to be imposed is very unlikely. Not to mention that the flogging penalty has a specific mechanism that requires restricting the movement of the executioner’s hand and returning it to its original position every time, meaning that the flogging is unlikely to be severe. Thus, it can be said that the concept of the punishment being announced in this way, while it’s actual potential to be carried out so punitively being low, aims to achieve the concept of deterrence as a basis and mercy as an actuality. Clearly the philosophy of this punishment is to inflict pain on the criminal to be a deterrent for him/her and for others as well while also mercifully making it unlikely to actually be applied due to the restricting conditions.

One of the core philosophies of Islam is to extend equality to all people, men and women alike, people of any ethnicity, free and slave.  This extension of equality to all people is also present in the punitive policy in Islam which strives for equality in application among all people, as stated in the noble hadith: “If Fatima -the daughter of Muhammad- stole, I would cut off her hand.” This results in non-discrimination when inflicting punishment between one person and another person, as is currently happening in practice, unfortunately in some of those countries that apply the provisions of Islamic Sharia, where punishment is imposed only against certain persons and avoided against other persons due to family, regional, tribal or other reasons. If we take a close look on the philosophy of punitive law, as one example of sharia laws, we will find that some crimes need to be unveiled to achieve social relief as in theft whereas other crimes are best kept veiled as adultery. If a neighborhood was suffering from theft people will be very concerned when they go to bed and when they leave to work. When the thief is caught there will be relief and people will be happy and live in peace, so the general goal in to reveal that. On the other hand if people hear that a woman in one house and another from a second house committed adultery or the father in that house was adulterous with the mother of another house, in that case people will be afraid and concerned. The general goal in that case is to not to unveil it, which may be the reason to require four eye witnesses.  Without almost impossible proof, the crime is not revealed publicly and hopefully the adulterers cease and desist once they are discovered and threatened with the possibility of being punished.

The death penalty in Islam is problematic for some. In this context, it must be noted that some western laws also provide for strict penalties such as the death penalty for the commission of certain crimes. The death penalty was imposed in 2015, for example, against 28 people. Fifty-eight countries currently impose the death penalty as a legal punishment. These countries are not unaware of its citizens and their human rights, but the community security is considered the prime concern of these governments over that of the person punished for having committed severe crimes.

The penal system in Islam as a principle does not contradict basic human rights, but rather preserves them by protecting the social fabric and the individual and collective human entity. The problem lies in the application at times, as mentioned above, especially when punishments are imposed selectively, which opens a wide field for criticism of the penal system in Islam, which is based mainly on equality between people of different races and nationalities.

To conclude this article there is a question, is Islam so consistent to perform punishments? Is it possible for a person to commit a crime and be purified without punishment? The answer is found in this hadith: “A person came and said: Allah’s Messenger, I have committed an offense which deserves the imposition of hadd (punishment) upon me, so impose it upon me. Allah’s Messenger peace be upon him kept silent. He repeated it and said: Allah’s Messenger, I have committed an offense which deserves the imposition of hadd upon me, so impose it upon me. He (the Holy Prophet) kept silent, and it was at this time that Iqama was pronounced for prayer (and the prayer was observed). And when Allah’s Apostle peace be upon him had concluded the prayer that person followed Allah’s Messenger (ﷺ). Abu Umama said: I too followed Allah’s Messenger peace be upon him after he had concluded the prayer, so that I should know what answer he would give to that person. That person remained attached to Allah’s Messenger peace be upon him and said: Allah’s Messenger, I have committed an offense which deserves imposition of hadd upon me, so impose it upon me. Abu Umama reported that Allah’s Messenger peace be upon him said to him: Didn’t you see that as you got out of the house, you performed ablution perfectly well. He said: Allah’s Messenger, of course. I did it. He again said to him: Then you observed prayer along with us. He said: Allah’s Messenger, yes, it is so. Thereupon Allah’s Messenger peace be upon him said to him: Verily, Allah has exempted you from the imposition of hadd, or he said. From your sin (sahih Muslim 2765).

Praise be to Allah the Lord of all Creation

Sheikh Ali

 

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