Pertinence of Punishment to the Crime in Sharia Law
Aren't the Punishments in God's Sharia Law Harsh? Why Don't We Jail People?

It is God Who has created nature and human and Who has sent down the divine Books. Therefore, the rulings in the Quran are in full compliance with the natural law and ethics. They are valid in all ages. God has created the earth, other creatures and the human, and He has set up a perfect balance on the earth. Then, He has sent down divine Books as guides to maintain this balance. He decrees on this matter:

“He has raised the heavens and set up the balance; that you should not transgress in the balance. So, maintain the equilibrium with justice, and do not ruin the balance.” (ar-Rahman 55:7-9)

If the humankind complies with all of the rulings in the Quran, the balance on the earth would be peacefully maintained. In a state where the rulers would  abide by the Book of God, God’s laws (Shari’ah) would be justly established. Note that God emphasizes the importance of justice and equity in several verses and decrees:
“You who believe and trust, be maintainers of justice by bearing witness for the sake of God, even if it is against yourselves, your parents, or your close relatives. Whether the person is rich or poor. God is closer to either of them (than your closeness to them). Do not follow your own desire, so that you can act justly. If you distort (the truth) or evade (testimony), (know that) God is fully aware of what you do.” (an-Nisa 4:135)

The following example presents the strictness of justice principle in Islam:

An instance of punishment for theft during the time of Prophet Muhammad (pbuh) is narrated by Aisha (r.a.). “Usama approached the Prophet (pbuh) on behalf of a woman (who was a prominent person in her tribe and had committed theft). The Prophet (pbuh) said, “The people before you were destroyed because they used to inflict the legal punishments on the poor and forgive the rich. By Him in Whose Hand my soul is! If Fatima (my daughter) did that (i.e. stole), I would cut off her hand.”” (Bukhari 6787, Muslim 4187)

In such a stable environment, punishments ordained by God, as well as all the other commands of God, serve to maintain the balance, peace and safety. Commands, prohibitions and punishments in God’s laws constitute a solid basis on which the  safety of property and safety of life can be built. We should notice that safety of property is essential for safety of life. In a land where you cannot protect your money or properties, you could even fall short of food, and your life could thus be endangered.

The punishments in Sharia Law are perfectly designed by God. The perfectness of the punishments does not arise from their deterrrence only. God has designed the punishments to be exactly pertinent[1] to the committed crimes.  A criminal who violated a person’s right or seized a property illegally is sentenced to lose his own right or property, as well as  compensating for the loss of the victim. This loss caused to the criminal causes the criminal to understand the effects of his crime on the victim and develop empathy with the victim. When the criminal is sentenced to a punishment pertinent to his crime, both the victim and the criminal would feel relieved. This is the perfect justice designed by God!

There are three major types of punishments in Sharia Islamic law — qisas, hadd and tazir.

Qisas allows equivalent retaliation in cases of intentional homicide. It is different from the capital punishment in the western world. Qisas does not mean absolute death, because it allows heirs of the slain to reconcile with or forgive the murderer.

Hudud is plural of the word “hadd” which means “limit, boundary”. The punishments for fornication, theft, slandering a chaste woman (kazf) and terror (including brigandage and armed seizure) are included in the boundary punishments. They are called “boundary punishments” because they have clearly specified limits set by God in the Qur’an.

Tazir (or ta’zir, Arabic تعزير) refers to punishments for offenses at the discretion of the judge or ruler of the state.  Ta’zir refers to punishments of other offenses for which no punishment is specified in the Qur’an or the Hadith.

The Qur’an determines principles and measures to formulate the punishments for crimes and then introduces exemplary solutions. Crimes are categorized according to their qualities: against person, against society, against God.

Let us see the particular principle that God introduces for criminal law:

“Whoever commits a misdeed shall not be requited except with its equivalent (mithl); but whoever acts righteously, whether male or female, while they are faithful—such shall enter the Garden, and they will be provided for therein without account.” (Al-Mu’min 40:40)

“The recompense of an evil deed is an equivalent punishment appropriate for it. Whoever forgives and makes reconciliation, his reward is given by Allah. Indeed, He does not like the wrongdoers.” (Ash-Shura 42:40)

Let us discuss the most wondered issues here:

Qatl: Intentional Homicide – Qisas is the name of the punishment for intentional homicide:

“Oh, you who believe! Equivalent retaliation is prescribed for you in matters of murder. Free (person) for free (person), war captive for war captive, woman for woman. Whoever is pardoned by the sibling (the heir) of the victim in return for a certain thing (or on a certain condition), the murderer should fulfill it according to the known terms and in a kind manner. This is an alleviation from your Master and an act of grace. Whoever continues enmity after this will have a painful torment.” (Al-Baqarah 2:178)

Homicide is primarily a crime committed against a person. It does not always mean death. In qisas, the closest relatives, i.e. heirs, of the slain are given the authority to decide on the murderer’s end. They can forgive the murderer in return for a certain thing or on a certain condition, as well as with no demands. This is the reconciliation and forgiving mentioned in the verse 42:40. If the victim has more than one heirs and all of the heirs approve the execution, the murderer’s life is brought to end. Even one of the heirs does not approve execution, the murderer cannot be killed, and all the heirs are reconciled with the murderer. If the heirs of the victim forgive the criminal, this is the happiest end for the criminal. The forgivers would become of the most beloved to the criminal and his/her family. The aggrieved party would also have spared a life, which is equivalent to saving all mankind according to the Quran (al-Maidah 5:32).

Sariqah: Theft –  The punishment of theft may be cutting off the hand:

“Cut off the hands of both male thieves and female thieves as the requital of what they earned and as a deterrent ordained by God. God is superior and He judges correctly. But whoever turns around after his wrongdoing and reforms (himself), God will accept his turnaround: God is most forgiving, the most beneficent.” (Al-Maidah 5:38-39)

Theft is a crime which may require a hadd punishment when certain conditions are met. Sariqah is the name of theft in which the following conditions are met:

The stolen property,

1- Must be worth a quarter golden coin or more. This amount is based on two narrations (hadiths). The word we translate as “golden coin” is “dinar” in Arabic. Dinar was a golden coin that weighed 4.35 gr. at the time of issuing.

“(The Prophet said) Only on quarter dinar or more, the thief’s hand can be cut off.” (Muslim, Hudud, 1(1684); Bukhari, Hudud, 14; Abu Dawood, Hudud, 12; Tirmidhi, Hudud, 16)

2- Must be imperishable

3- Must be taken from its place secretly

4- Must be under protection and in another person’s ownership

5- Must be taken out and away from the place it used to be

If all of the conditions above are met, the crime is named as “sariqah = theft”, and it may be subject to a hadd punishment.

Theft is a crime committed against a person and the society. The loss of the person whose property is stolen can be compensated. However, the residents of that area would be disturbed when they learn about theft. The lack of safety of property has a permanent negative effect on the public peace. Therefore,  the crime cannot be forgiven after it is submitted to the jurisdiction, not even by the owner of the stolen property. We can also see this in verse 5:39 which mentions the  forgiveness of God about the hereafter, but not forgiveness in this life. When the case is open and the public is aware of the case, the punishment of theft must have a permanent effect on the criminal, just as it does on the public.

If the owner of the property catches the thief in the act, which is before the property is taken away from its place, the crime is not qualified as theft since the fifth condition above was not met. In that case, the owner has the right to forgive the thief, as well as submitting the case to jurisdiction. Judges would decide on the punishment with a “muqabalah bi’l mithl = equivalent retaliation”. It requires that the thief has to give to the aggrieved party the equivalent of the property he had stolen in addition to returning the stolen property. If the property itself could not be returned, then money twice the equivalent of property’s worth has to be given to the owner of the property: First fold as compensation for the stolen property and the second as punishment. Another compensation for breaking into private area may also be decreed, which is evaluated in the category of ta’zir.

Even though the crime is qully qualified as theft, there are still other conditions to be considered before cutting off the hand is decreed. Please see them below:
http://www.islamandquran.org/fatwas/on-what-circumstances-the-hand-of-a-thief-should-be-cut-off.html

In all of the cases above, the crimes are also committed against God, because they are clearly against God’s orders. The punishment of the crimes against God are also decreed in the Quran, that they will be in the Hereafter.

Imprisonment is not mentioned as a punishment in the Quran. It deprives human of the freedom God has granted them. It has become clear, after long years of experience, that prisoners are not corrected in prisons. There is enough of example to realize that criminals commit the same or similar crimes even after the end of several years they spent in jail. Incarceration does not teach the criminal any lesson, to the opposite of the punishments in Sharia law. Since the criminal does not taste a punishment relevant to his/her crime, they cannot understand the results of their misdeeds. Moreover, the aggrieved party’s loss is not covered when the criminal is sentenced to incarceration. Both the aggrieved party and the criminal feel that they were wronged. Yet, imprisonment only deprives the criminal of the suitable conditions to commit another crime for a temporary while.

To conclude, we see that there is a perfect balance and justice in God’s laws. Changing the place of a small stone would disrupt the whole balance. It is sure that human beings will be happy both in this world, and in the Hereafter if they submit themselves to God’s rules.

Yet, some ignorant people rush to judge the laws of Islamic Shari’ah, their penalties and sentences as harsh. They grieve for the hand that is cut or the criminal who was executed, but forget, or want to forget, the crime that this hand and this criminal committed, and all the risk they exposed to society and the evil that the crimes entail. They take pity on the criminal and not on the victim.

 

For further information, please see:

http://www.islamandquran.org/fatwas/on-what-circumstances-the-hand-of-a-thief-should-be-cut-off.html

http://www.islamandquran.org/fatwas/should-both-hands-of-the-thief-be-amputated.html

 

[1] Pertinence: having a clear decisive relevance to the matter in hand (merriam webster dictionary)

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Date: Jan 11, 2018
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