May 6, 2003

Understanding Punishment in Shariah [II]: Its Method, Allowance & Application

 

The Islamic Shariah provides two different types of punishments: Tazeer
and Hud.

Tazeer, the lighter of two, means putting to shame or disgracing the
criminal for offense he has committed against a member of the society. The objective
of this approach is to educate and reform an offender and to facilitate his
rehabilitation in the society. Tazeer?s extent and implementation is
left to the discretion of a righteous, reliable, and learned judge (Qadi).
On the other hand, Hud, literally meaning boundary or limit, is a more

severe penalty because it is a ?liability incurred as a result of crossingthe boundary set by God.?
[i]

The Hud punishment is given when there is a violation of
people?s rights.

Abdur-Rahman
Doi, in his encyclopedic work Shari?ah: The Islamic Law, suggests that
only a total of seven scenarios exist in which Hud penalties are awarded
in the Islamic law
; among the Hud crimes are intentional murder,
theft, adultery, and highway robbery
[ii]
. Not surprisingly, it is this portion of the Islamic law that often
makes headlines in the media. According to the Muslim jurists, the purpose of
Hud punishments is educative, preventive, and, mainly deterrent. 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 Quran, is the root cause of all disorders and corruption in human life

ALLOWANCE
FOR RETRIBUTION

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.

[iii]
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.
?
[iv]
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.
[v]

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.
[vi]

THEFT:
A CASE OF HUD AND ITS IMPLEMENTATION

Even
the very thought of watching someone lose a hand for committing theft is chilling.
However, such sights are rare in an Islamic society for two reasons:

First,
as
A.R. Doi indicates, statistically speaking, the simple enforcement of Hud
penalties itself has a significant deterring effect on the potential offenders,
which reduces the crime rate drastically in a society administered by Shariah;
he sights the example of Saudi Arabia (despite the distorted ideology of its
government) in recent times, and the era of the first generation of Muslims
fourteen hundred years ago.
[vii]

Second,
the procedure of convicting an alleged offender is so elaborate and strict,
and involves a host of exceptions and conditions, due to which in most cases
the offender?s punishment is reduced from the level of Hud to Tazeer,
i.e. the judgment is left to a judge?s discretion.

One
such exception is found in the traditions of the Prophet Muhammad (peace be
upon him), ?Prevent the application of Hud punishment as mush as you
can whenever any doubt persists.?
[viii]
When the benefit of doubt is resolved in favor of the accused supposing
in the case of theft, a lesser punishment by Tazeer is applied, because
doubt relates to the criteria not the conviction. In the case of adultery (which
requires four adult witnesses), for instance, if there is a little doubt, no
Hud penalty is given at all. The case of theft and its punishment would
demonstrate the difficulties with such convictions. The Quran confers the right
of security of ownership of property to every person in an Islamic state, whether
Muslim or non-Muslim. A thief may be a male or female. An act of theft is deemed
complete by the Muslim jurists when the following six elements are present:

1)
the
property is taken away secretly;

2)
it
is taken away with criminal intention;

3)
the
article stolen should be legally owned by the person from whom it is stolen;

4)
the
stolen property must have been taken out of the possession of its real owner;

5)
the
stolen object should have already come under the possession of the thief;

6)
the
value of stolen property should reach a minimum value set by the government
to constitute an act of theft.
[ix]

The
Hud punishment prescribed by the Quran for a theft is to cut off the
thief?s hand. According to the majority of Muslim schools of jurisprudence,
items such as food, or of lesser economic value, are not punishable under Hud
penalty for theft, and are left to a judge?s discretion. Moreover, only one
hand is supposed to be cut off for the first theft, provided that thief:

1)
is
a Muslim;

2)
is
an adult;

3)
is
sane;

4)
must
not have been compelled by someone else to commit the theft;

5)
must
not have been hungry while committing theft.

If
any of these criteria related to stolen object or the person accused of theft
are not met, he or she may be acquitted free or their punishment could be reduced
to Tazeer. For instance, under the Islamic Shariah, according
to Hanafi school of thought, constituting the majority of Muslim following today,
a non-Muslim can not be charged a Hud punishment for stealing
[x]
. Similarly, in a Muslim state, every individual is entitled to social
security through the public treasury where funds are collected from various
sources, including the obligatory annual payment made to the poor by the financially
sound Muslims. If a citizen is driven by force of circumstances since he could
not earn his living for himself or his family, due to lack of employment opportunities
or was not taken care of by the central treasury, the society and government
will be considered at fault, and no Hud penalty could be applied to the
accused. It is keeping with this principle that Umar bin al-Khattab, the second
Caliph or ruler of Muslims after Prophet Muhammad (peace be upon him), did not
apply Hud punishment to those accused of theft during the period of famine
in the state of Madina.
[xi]

Furthermore,
after the above mentioned conditions are fulfilled, the proof of crime can only
be established beyond doubt through the witnesses of two trustworthy males,
or the confession of the offender himself, though the accused has every right
to deny the charge. Therefore, the judgment is supposed to be swift and the
guilt has to be established beyond doubt. In the Shariah there is no
concept of ?guilt by association?, even in the state of war?a recent legal phenomenon
due to which countless accused have been suffering for years, behind the bars
in the United States, either without knowing the crime they are accused of,
or without having their guilt firmly established in the court of law.

Reform
vs. Punishment

After
the discourse on the forms, place, and role of punishments in the Shariah,
a question naturally arises: Why does the Islamic law want to punish, and not
reform? To Khurram Murad and A. R. Doi, such innocent inquiry is inevitable,
but fallacious. ?In a Muslim society,? Murad argues, ?every institution
is value-oriented and owes a responsibility towards the moral development of
every person?.Reform is therefore, a pre-crime responsibility and not
a post-crime syndrome
.?
[xii]
Islamic law makes an effort to ensure that inducement to commit
is minimal. This is, for instance, the reason behind the complete prohibition
of consuming intoxicants and intense free-mixing of unrelated members of opposite
genders. Part of pre-crime reform involves development of an environment where
preventive measures are already in place. Once the crime is committed, however,
?the best place for reform is in the family and in society, where a criminal
is to live after the punishment, and not in a prison where every inmate is a
criminal.
?
[xiii]
While the
Shariah protects society by legislating punishments and preventative
measures against crimes, it does not marginalize the individual for the sake
of society. It does not resort to punishment without first preparing for the
individual a situation conducive to a virtuous life. Keeping aforementioned
argument in mind, it would indeed be unjust, from the standpoint of Shariah,
to allow a hazardous act, such as drinking alcohol, and then punish a person
for drinking while driving; it would be even more unfair if the offender is
either placed behind the bars or in a rehabilitation center, and is then expected
to undergo a painful process of detoxification and ?reform?.

SHARIAH
TODAY

A brief survey
of the place and conditions of applying penal code in the Shariah does
illustrate the presence of a concrete framework of principles that constitute
and govern the Islamic law. The question of how ?just? the mechanism of Shariah
is in dealing with crimes and social problems, is irrelevant until and unless
an environment of virtue, care, counseling, and justice is prepared. One
may obviously argue that in the contemporary practice of the Shariah
around the world, a great deal of ?selective? implementation is being witnessed;
either the vast majority of the Islamic law (other than the penal system itself),
including regulations related to family, diet, economics, and education, for
instance, are not being fully enforced in reality, or our media is practicing
selective journalism all along when portraying the image of Islamic law—-
or perhaps a combination of both situations is true.

Moreover,
one wonders if Shariah can be practically implemented in our contemporary
North American context. While some believe the Islamic laws is incompatible
with modernity, a close study of the purpose of Shariah and its implementation
throughout the history suggests that the principles of Shariah are universal
and are not bound by the limitations of time and culture. It is certainly possible
to apply Shariah in the North American society only if three conditions
are fulfilled: One, when an environment is developed, provisioned with
preventative measures, that is conductive to a just and productive lifestyle,
which is often not compatible with a consumer lifestyle. Two, if the
Shariah laws are implemented gradually, accompanied by continuous public
education and training on the importance of justice, freedom, and one?s purpose
on this earth, the way it was revealed and practiced, as a strategy of pre-crime
social reform, over a period of twenty three years at the time of Prophet Muhammad
(peace be upon him) and the first generation of Muslims. Three, if the
punishments in the Shariah are given their due place, only to be used
as a last resort, and not to be practiced in isolation from the other major
objectives of the Shariah. If a comprehensive approach to Shariah
is not adopted then one may expect to witness horrific images of extremist,
selective, and literal application of the Islamic text, the likes of which we
have witnessed in recent times.

 



[i]
Khurram
Murad, Shari?ah The Way of Justice,
(Markfield,
Leicester: The Islamic Foundation, 1999),

17.

[ii]
Abdur Rahman
Doi, Shari?ah: The Islamic Law, (London: Ta ?Ha Publishers Ltd., 1984),
234.

[iii]
The
Quran
, 42:40

[iv]
K. Murad,
Shari?ah: The Way of Justice, 17.

[v]
K. Murad,
Shari?ah: The Way of Justice, 18.

[vi]
A. R. Doi,
Shari?ah: The Islamic Law, 222.

[vii]
A. R. Doi,
Shari?ah: The Islamic Law, 260-1.


[viii]

A. R. Doi, Shari?ah: The Islamic Law, 224.

[ix]
A. R. Doi,
Shari?ah: The Islamic Law, 254-5.

[x]
A. R. Doi,
Shari?ah: The Islamic Law, 254.

[xi]
Hasan al-Anani,
Freedom and Responsibility in Quranic Perspective, (Indianapolis: American
Trust Publications, 1990), 87.

[xii]
K. Murad,
Shari?ah: The Way of Justice, 19.

[xiii]
K. Murad,
Shari?ah: The Way of Justice, 19.

Leave a Comment