Islam & Criminal Justice

8/3/2019 Islam & Criminal Justice

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ISLAM & CRIMINAL JUSTICE

Application of Islamic Ethics - I


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Western and Islamic Views of Crime and Punishment

PART I


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WESTERN VIEW

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


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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 pastand applying punishment or revenge

2. Deterrence: prevention looking to thefuture

3. Reformation: reforming the individual;making him or her better to be releasedback into society


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HISTORICAL EXPERIENCE - I

Time Western Approach to Capital Punishment (death penalty)

1930s in the UK 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 Death penalty (capital punishment) abolished

1970s in USA Capital punishment declared unconstitutional

1970s in California Capital punishment abolished


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HISTORICAL EXPERIENCE - IITime

1970 in UK A report published regarding the time period of 1960-1970showed that 172 convicted murderers were released. Of thatnumber:

-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 andreturning to prison

2000 present Admission that the penal system has failed in reforming and

rehabilitating criminals.Prison has become a school for graduating hardenedcriminals.There are many repeat offenders.Society pays for their crimes .


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HISTORICAL EXPERIENCE - IIITime

2000 USA Western trend now sees that capital punishmentis being reinstated in many States within theUnited States. . .

2000 UKThere are now fresh demands to bring back thedeath penalty.


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ISLAMIC CRIMINAL JUSTICE

There are 3 types of punishments:

1. Hudood (Fixed Punishments set by Allah inQuran or by statements in the Sunnah)

2. Qisas (Retaliation Punishment)

3. Tazeer(Discretionary punishment)


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APPLICATION OF ISLAMIC LAW - 1

We look at Islamic Law and ask ourselves is itapplicable? Is it relevant or beneficial?

Examples:

Arabian PeninsulaDuring 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.


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APPLICATION OF ISLAMIC LAW - 2

Another aspect of the application ofIslamic Law is that it allows the family

who suffered the loos to have the rightto decide (execution, compensation orpardon); whereas, in the West, the

decision is left up to the individual Stateas to how to punish the criminal.


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Islam & Criminal Justice

PART II


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ISLAMIC LAW / CRIME - I

Islamic law or any other type of law will notprevent crimes of passion where a sudden

strong impulse such as rage or heartbreak

overtakes a person and he kills anotherhuman being. For example, one man killsanother over an argument, a husband finds

his wife has been unfaithful, etc. Sometimes,in court, this is described as temporary

insanity.


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ISLAMIC LAW / CRIME - II

Islamic law will stop the pre-meditatedmurder.

In the case of murder, there are 3 options:1. Execution, but this is not automatic, but

remains the first option

2. Diyah or Blood money: compensation which

the family accepts for their loss3. Pardon: family members and not the

government have the ability to pardon themurderer, but all members must agree.


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ISLAMIC LAW / CRIME - III

This general law will be applied swiftly only ifthe evidence is 100% positive that theparticular person did commit the murder.

There can be no doubt. The evidence mustbe irrefutable (later no one can come andprove that a mistake was made)

In the case of doubt the fixed law is setaside

The Prophet (peace and blessing be uponhim) said, Ward off legal penalties with

suspicions.


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Crime and Punishment in Islam

PART III


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CRIME & PUNISHMENT IN ISLAM - I

Why do we need Islamic Law in oursocieties?

1.

2.

3.


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CRIME & PUNISHMENT IN ISLAM - II

Security and stability are basic humanneeds

Man has been conscious of the need forsecurity since the beginning of his life onEarth. We know this because of all of the

many ethical systems created some ofwhich have ancient beginnings.


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CRIME & PUNISHMENT IN ISLAM - III

Allah sent these laws to secure the welfare ofhumanity by establishing a righteoussociety.

Indeed We have sent Our Messengers with clear

proofs, and revealed with them the Scriptureand the Mizan that mankind may keep upjustice. And We brought forth iron wherein ismighty power, as well as many benefits for

mankind [Hadid:25]


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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. Headmonishes you, so that perhaps you maytake heed.) [An-Nahl: 90]


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CRIME & PUNISHMENT IN ISLAM - V

Proof:

God wants ease for you, not hardship

[Baqarah:185]


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CRIME & PUNISHMENT IN ISLAM - VI

These man-made laws have been recentlybeen developed and completed onlywithin the last few centuries

This has been the result of a long processof trial and error


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CRIME & PUNISHMENT IN ISLAM - VII

By contrast, the Law of Islam, sent downto the Prophet Muhammed (peace andblessings 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 theconstancy and permanence of humannature.


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CRIME & PUNISHMENT IN ISLAM - VIII

Islamic law contains comprehensiveprinciples and general rules

This is for dealing with all the problems and

circumstances that life may bring in any timeand any place.

Also has immutable punishments for

certain crimes not affected by changingconditions and circumstances.


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UNIVERSAL PRINCIPLES

There are 5 universal principles necessaryfor human welfare to be secured. The Islamicpenal 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


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UNIVERSAL PRINCIPLES & FIXED PUNISHMENTS

1. transgression against life: (laws againstmurder or assault retribution)

2. transgression against religion: laws againstapostasy

3. transgression against reason: laws againstdrinking alcohol, drugs and intoxicants

4. transgression against lineage: laws against

fornication, false accusations of adultery 5. transgression against property: laws against

theft & highway robbery


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Forms of Punishment in Islam

PART IV


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FORMS OF PUNISHMENT IN ISLAM

Islam confronts the problems of life by settingdown solutions by basing its laws on twoprinciples

Stability and Permanence

Dynamism


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Stability and PermanenceFor the unchanging aspects of mans life,

Islamic law brings fixed lawsThese are based on clear texts prescribing

fixed punishments for those crimes that no society is free of

crimes that do not vary in their formsbecause they are connected with the

constant and unchanging factors of humannature.

Dynamism


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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 ofcircumstances

Islamic law confronts other crimes by statingthe general principle that decisively indicates

their prohibitionThen the punishment is to be decided by the

proper political authority in society

Circumstances are taken into consideration andthe most effective way to protect society fromharm.


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In accordance with this principle,punishments in Islamic Law are of threetypes

Fixed

Prescribed punishments:

Hudood

Qisas Retribution

Tazir Discretionary

Punishments


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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


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RETRIBUTION I QISAS

The perpetrator of the crime is punished withthe 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 foraccidentally 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]


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RETRIBUTION I I QISAS

2. In crimes where the criminal directlytransgresses against another, Islam has giventhe victim or his family an important role in

deciding whether or not the punishmentshould be carried out. Islam permits the victimto pardon the criminal because this isconsidered the right of the victim.

Islam rewards the victim for pardoning thecriminal

... ... If anyone waives the right to retaliation out of charity, it

shall be an expiation for him. [Al Maidah: 45]


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RETRIBUTION III QISAS

The pardon can either be to the payment of bloodmoney (diyah) a fixed, monetarycompensation

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 thegovernment. It cannot be done by the family ofthe victim.

3. Wisdom of Retribution:


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RETRIBUTION IV QISASWisdom

GeneralSecurity for

society /Rights ofindividualpreserved

If thereis doubt

Deterrent


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WISDOM BEHIND RETRIBUTION

Wisdom of Retribution punishments in generaland retribution in particular -- this wisdom has2 characteristics:

The first is that the severity of the punishmentacts as a deterrent

The second is that in the case where there isdifficulty of establishing guilt,

Reduces the opportunities for carrying out thepunishment

Protects the accused


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WISDOM BEHIND RETRIBUTION

o Where there is doubt, punishment is set aside

o The benefit of the doubt is given to the accused

o Some prescribed punishmentsa re even

waived on the grounds of repentance, i.e.Highway robbery

o These two elements (severity of crime anddifficulty of establishing guilt complementeachotehr

o Crime is discouraged (protecting the society)

o Rights of accused are protected


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DISCRETIONARY PUNISHMENT TAZIR

Punishments not fixed by Islamic Law

Crimes that either infringe on the rights of Godor

the rights of the individual

Do not have fixed punishment or set expiation


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DISCRETIONARY PUNISHMENT TAZIR

These types of punishments range from

Exhortations

Reprimands

Flogging

Fines

Imprisonment

These discretionary measures are letto the decision of the legal authorities


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OBJECTIVES OF THE ISLAMIC PENAL SYSTEM -1

The objectives are three:

To protect society from the dangers ofcrime

To reform the criminal

The punishment is a recompense forthe crime

OBJECTIVES OF THE ISLAMIC PENAL SYSTEM 2


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The first objective:To protect society from the dangers ofcrime

And there is (preservation of) life for you in

retribution, O people of understanding, thatyou may become pious.

OBJECTIVES OF THE ISLAMIC PENAL SYSTEM 3


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Islam has established the principle ofpublicly announcing the punishment whenit is to be carried out

A group of the believers should witness the

punishment [An-Nur 24:2]


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The second objective:

To reform the criminal

except for those who repent before

you take hold of them. Then know thatGod is the Forgiving, the Merciful. [Al-Maidah 5:34]

In context with the crime of Highway Robbery


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if they repent and do righteousgood deeds, leave them alone. Surely,Allah is Ever the One Who acceptsrepentance, (and He is) Most Merciful.)

[An-Nisaa: 16In context with the crime of fornication


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Allah says after mentioning the punishment forfalse accusation:

except for those who repent afterwardsand make amends, then verily God is theForgiving, the Merciful.


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Allah says after mentioning the punishment fortheft:

But whosoever repents after his crime and does

righteous good deeds, then verily, Allah will pardonhim. Verily, Allah is Oft-Forgiving, Most Merciful.)


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OBJECTIVES OF THE ISLAMIC PENAL SYSTEM

The third objective:

The punishment is a recompense forthe crime

...

The thieves, male and female, cut off theirhands as a recompense for what theyhave earned [Al-Maidah:38]



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The third objective:

The recompense of those who wage war against Allah and

His Messenger and do mischief in the land is only that theyshall be killed or crucified, or their hands and their feet be cutoff on opposite sides, or be exiled from the land. That is theirdisgrace in this world, and a great torment is theirs in the

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Islam & Criminal Justice