A historical glimpse over criminal laws:
Since the dawn of history, man has lived a social life that necessitated organizing his relations with others through establishing rules that have a binding nature and must be respected in order to control aggressive instincts and the desires for debauchery “And [by] the soul and Him who fashioned it and informed it with [consciousness of] its wickedness and its righteousness!” [91:7-8] There is no society, no matter how backward or developed, degraded or advanced it may be, that has not such a kind of rules whose reference could be a divine law revealed by the Creator (exalted is He) to His messengers and prophets to establish justice and set the balance of straightforwardness “Very truly, We have sent Our messengers with clear [and miraculous] proofs. And We sent down with [each of] them a Book [to guide their people], along with the [just] balance, so that people might establish justice.” [57:25]
The reference could be customs and traditions or the wisdom of the sages and the theories of the philosophers such as the Hammurabi Code and the Roman systems and laws which constitute the basis of the modern European laws.
Out of His grace on this Muslim nation, which received the final divine law, Almighty Allah granted it such as system that is complete and comprehensive in its fundamentals and accurate in its detailed rulings. It has organized human life in the most superb way and set it in the best order. Rights have been guaranteed, duties have been determined, justice firmly rooted and spread wide, and the truth has grown deep.
One of the most important of these systems is the criminal law that has guaranteed a safe life and protection for the society against the evils of criminality together with a rehabilitation of the criminal himself. Therefore, the penalty of each crime suits its consequences on the society and balances the degree of harm it causes for the individual and the society in a wonderful sequence and graduation through a system that never transgresses or does injustice. The shari`ah is broad in its horizons and concepts, clear in its declaration, firm in its well established texts, and continuous and developing in its objectives.
Its broadness is clear in the saying of Almighty Allah “And We have sent down to you the [Quran as a revealed] Book to make all things clear.” [16:89]. Clarity of the declaration is manifested by the prophetic declaration in the Farewell Pilgrimage “Indeed, your bloods, your properties, and your honors are as sacred for one another as the sacredness of this day…”
Scholars of the ummah (Muslim nation) have honestly interpreted and expressed this in their definition of crime when compared with its Western definition. Law defines it as “Every offense for which the law prescribes a punishment”, whereas Muslim jurists define it as “Every aggressive act against a soul, religion, reason, honor, posterity, or property.” Felony is “every prohibited act done against a property or a person.” [Radd al-Muhtaar by Ibn `Abdeen]
Ibn Qudamah, a hanbilite scholar, defined it as “Every aggressive act whether against a property or a person.”
The definition of the jurists identifies the goal of prohibition, which is the protection of soul, property, honor, and reason. It establishes the theory of criminality without referring to the law but to the nature of the act in order to protect the five necessities without the protection of which the social system cannot be consistent.
Punishment in the Islamic shari`ah
The punishment of the crimes has been accurately organized in distinguished groups according to the seriousness of the crime, the nature of the punishment, and the relation of the punishment to the affected side, be it an individual or the entire society.
They divided it into three kinds: retribution, hudud (sing. hadd, fixed punishments for certain crimes), and ta`zeerat (unfixed punishment administered at the discretion of the judge).
1. Retribution is to do with the criminal as he did with the victim. It is often used for killing the killer, wounding the person who wounded another, and cutting off the same organ he cut off from the other. It is a punishment for every crime against body, soul, or organ. Retribution is the right of the victim. He can forgo it if he wills; or else he can get it. This is what is called the personal right, though the ruler still has the right to punish in another way.
2. Hadd is a punishment prescribed as a right of Almighty Allah or of a human being and cannot be forgone except in cases of necessity or times of turmoil as al-Qurtuby stated. Such prescribed punishments are six, though there is difference of opinion concerning the penalty of accusing someone of illicit sexual intercourse, which al-Shafi`y regards as a personal right.
3. Ta`zeer is a punishment not specifically prescribed by the shari`ah and becomes due, as a right for Almighty Allah or for a human being, for a committing a sin that usually has no prescribed hadd or an atonement. It is one of the rights of the ruler and he is authorized to estimate it, according to the opinion of the majority of the Malikites, the Shafi`ites and the Hanbilites and the correct opinion in the school of Abu Hanifah. But he can also forgo it. Thus, it depends, with regard to its execution or non-execution and its severity or alleviation, on bringing benefits and warding off harms.
Rights are distinguished. Sometimes the right is for Almighty Allah and can be called the right of the ruler as called by Ibn Rushd, the grandson; and this cannot be forgone if it is a hadd. Sometimes it is the right of a human being who can forgo it. Sometimes it wavers between the two sides and thus scholars differ over it. Sometimes the two rights overlap in the same case such as in the case when a muharib (someone who wages war against the Muslim community) takes someone’s property. There is another three-folded division based on how to identify the side of the right.
Positive laws usually distinguish between the two sides: public right and personal right. On this they established the civil case filed by the affected person to demand compensation for the harm and the case of public right filed by the general persecutor to protect the society.
But, through detailing the kinds of crimes and penalties, the purified shari`ah has asserted the element of legislative consistency and stability represented in the shari`ah penalties which provide eternal protection to the universal necessities in a way that suits the eternal human necessity.
It also has laid emphasis on the side of flexibility, development, and adaptation with different environments in the form of ta`zeerat, not only through prescribing no maximum or minimum for the punishment but also through getting those in authority involved in executing or non-executing the punishment on the basis of seeking public interest not on the basis of mere whims.
Some of the fair legists in the West noticed the element of consistency and stability and the element of flexibility and development in the shari`ah and thus they lauded it, as the Italian legist Dr. Onzicuanzabto did in his book “Islam and the policy of the Allies” in the first half of the twentieth century when he said, “The Islamic shari`ah is accurate and stable in form and nevertheless it suits the status quo. Its development does not diminish its value and effectiveness. For long centuries it has fully sustained its vitality and flexibility.”
The criminal justice system that balances between the right of the individual and the right of the community is what distinguishes the shari`ah from the Western systems that cry for the criminal and waste the right of the society with its thousands of individuals.
There is difference of opinion concerning the ethical outlook that begets law or that the law is supposed to serve. Besides, the theory of public order in the legal sense differs in the Islamic system from the Western one as we pointed out.
In addition to its strong concern about the safety of the society, the purified shari`ah provides firm guarantees for the individual not only through the principle of warding the punishment off in case of doubt, which applies to hudud; particularly with regard to crimes against ethics and the pure rights of Allah, but it also provided guarantees on the level of juridical procedures and the means of proving proofs. It has disallowed the judge to judge based on his own knowledge and sets as a condition that the witnesses have to be trustworthy and that their number has to be more than two in certain ethical issues. Moreover, it gives excuse to the accused person to discredit the witness when necessary. It prescribes taking oaths and in some cases makes it firmer. It disregards the confession of the person under coercion and only regards confession with free will and choice. It has also set special conditions for the person who assumes the post of a judge including knowledge, piety, honesty, and straightforwardness in addition to other conditions known in the writings on judiciary and judgeship.
Having presented the above divisions concerning the punishment and its demander, there is a third division based on the nature of the crime given by ibn Rushd, the grandson, in his bookBidayat al-Mujtahid where he divided it into five kinds: crimes against bodies, souls, and organs, crimes against chastity; crimes against properties; crimes against honor, crimes against shari`ah prohibitions concerning food and drink. He said that these are the crimes that have punishments prescribed by the shari`ah. I do not think that I need to delineate the rulings of crimes and the cases that necessitate hadd and the cases where ta`zeer is prescribed. I feel that mentioning the main principles suffices for mentioning the details and mentioning the definition suffices for giving descriptions and numbers; for all this can be known from the books of fiqh and Islamic rulings.
It is well known that the crime is a result of disobeying Almighty Allah and contravening His command, whether this is accompanied by committing an aggression against a human being or not. Any aggression against others is a disobedience to Allah but the opposite is not necessary. There could be an act of disobedience that involves no aggression against anyone else, such as leaving out an obligation and drinking alcohol. But, in fact, this protects the society through preserving upright manners without which violence prevails and malice grows.
In certain crimes severe punishment is prescribed; these are called “crimes that require the application of hudud“. In the shari`ah, we distinguish between crimes that require hudud and crimes that require ta`zeer. The former are limited and determined by the Lawgiver, while the latter are unlimited. The Lawgiver may provide a ceiling for the punishment, as in the case of the crime of highway robbery, and may not leaving it to the discretion of the judge to consider the conditions that require alleviating or toughening the punishment and to treat each case individually, as in the case of stealing stealthily a property whose owner did not keep it properly or seizing it by force, which is considered as a theft crime according to shari`ah jurists.
Moreover, toughening the punishment was met by rigidity of the means to establish the proof as in some crimes- namely illicit sexual intercourse- four eyewitnesses are required. Moreover, if a person made a confession and then wanted to take it back or fled from the court, he should be left. Therefore, some scholars assert that the intent is to give threat only.
Warning is a known principle even in the Western laws. Thus, the judge cannot judge on the basis of his knowledge, for personal conviction is not enough. There must be decisive means to establish the proof so that judge remains away from the claim of injustice. Thus, even if he saw a person stealing, he cannot issue a sentence against him unless with his confession or with a convincing witness.
In fact, the issue of criminalization is relative as Western jurisprudents admit.
On which basis an act could be considered a crime?
The elements of ethics, public order, and social denunciation constitute the basis of criminalization. In his book the Criminal Law: General Introduction, the French legist Jack Bradley admits the difficulty of defining crime in a social and ethical way saying, “Criminalizing an act results from the lawgiver’s conviction that this act is unforgivable by the public opinion and thus it deserves a tougher punishment.” He further said, “It is the right of the society to punish those who disturb its peace. Only few authors denied this, while the majority of philosophers admit the right of the community to make punishment.”
Talking about ethics, he said, “There is an intimate relation between the ethical rule and the legal rule. The history of criminal law mostly shows that it is the conduct that shocks the good manners of the individual or the society that is punishable, such as committing a transgression against religion, life, or property.”
The French legist Tun Carison said, “Law and ethics can be drawn as two intersecting circles that have a common space and at the same time have special areas for each one of them.”
The author remarks that the law does not criminalize lying or things that are between the person and his Lord. He agrees with the social manners related to man’s duties toward his fellow beings, for unfulfilling them is criminalized by the criminal law.
In his book Criminal Law, DeCock said, “With regard to direct infringement of the social order, such as making transgression against religion or public affair, the reaction is associated with each society, be it a tribe or a state.” [p 26-27]
He further said, “The criminal law represents the society’s denunciation of the committed act, which justifies punishment.” The article (29) of the Human Rights Charter makes its application related to the consideration of ethics and public order. Thus, when we apply these punishments, we apply our ethics and respond to our societies that differ from other societies. Why then do they deny what they allow for themselves?
A word remains concerning death sentence and life sentence. We may here borrow the words of Dr. Ibraheem al-Marzouqy who said, “Both death sentence, with the psychological horror it causes, and life sentence, with the bodily suffering it causes, are still applied in many countries. Accordingly, it could be said that the rule of ‘the minimum treatment of the prisoner’ has not been decided yet with regard to all kinds of tough punishment. It could be concluded that the criterion of ‘the minimum’ of legal punishment- in terms of lessening the psychological and bodily suffering for the punishable person- is not a real criterion because it does not provide enough deterrence to guarantee necessary security and protection for the society. The proof for this is the escalation, in kind and number, of the crimes committed in such countries that do not apply bodily punishments on the criminals. As such increase in crime means increase in the threat directed to the safety and stability of the society, those people have to choose between deterring punishments to defend public interest and sacrificing such interests and leaving criminals to destroy the society as they like. Hence, hesitancy expressed by some countries regarding the abolishment of bodily punishments can be justified by protecting the security of their peoples. No legal system can be accused of cruelty when it takes the side of public interest, because the benefit achieved by the law through this preference is far greater than some due harms of the punishment that the criminals suffer as a just result of what they committed.”
In another place of his book al-Marzouqy made a comparison between the results of applying the Islamic shari`ah and those of slacking in its application saying, “Therefore, we find that the rate of crime is dreadfully high in modern societies and thus the number of victims increases and so do the violations and contraventions of human rights. This in turn leads to diminishing the rights and restricting the freedoms that people should enjoy.”
In this context, it should be noted that the number of the cases of major crimes where hududare executed in the KSA, for example, is so little that it reflects the low rate of crimes; particularly when compared by the rate of committing such crimes in some other Muslim and non-Muslim countries.
The relative increase of the rate of crimes in the countries that slacken in the application of the Islamic shari`ah only indicates the weakness of the element of deterrence in the imposed punishments and the failure to apply the punishments that suit the danger of the crimes. In return for every crime committed, an individual or collective right is violated. Hence, when the application of the law deters the criminals, this safeguards rights and freedoms. This at least justifies such punishments that may seem apparently harsh.
When the law fails in form, spirit, and application to achieve deterrence, it fails also to protect personal and collective rights and fails in turn to protect public interest. Accordingly, a question rises about the avail of such laws and systems and what need people have for its fuss? This applies to many of the modern laws and its successive crippling adjustments without significant benefit.
The Islamic legislation creates safe and stable societies that are sure to protect their rights, and this refutes the claims about the harshness of the Islamic penal system. If such allegations are not considered malicious, they are at least not based on objective basis.
The ultimate end and sublime goal of the criminal law is to reduce crime to preserve man’s rights of life and security, protect his property, and safeguard his posterity. These right have not been sufficiently observed in the positive criminal law, while the preservation of such rights is the criterion of its success.
As the Islamic legislation has unrelentingly combated any transgression against these rights through the application of severe punishments, it has also left some doors open for the perpetrators of some major crimes to make amends. This obviously indicates that the prescribed punishment aims basically at reforming the offender and the welfare of the society.
These doors, to which we shall indicate, represent the highest level of observing human rights, conforming with man’s nature and natural disposition, and respecting his privacy. They are:
First: There is a rule that repentance remits some of the due hudud, as in the case of the punishment of hirabah (unlawful warfare), before arresting the criminal to exhort him to amend himself and to protect his blood and property. Almighty Allah said, “Except for those who return penitently before you gain power over them. Know, then, that Allah is most forgiving, mercy-giving.” [5:34] This is a legislative exoneration that a criminal can demand in court.
According to some scholars, repentance remits the penalty of theft. In the view of some other scholars, it remits other penalties that are considered rights of Almighty Allah. But repentance does not remit people’s rights.
Repentance has incomparable effect in the Islamic criminal law. It is a way paved by the Lawgiver to reform the society and to rehabilitate the deviant; for, through it, he can regain his civil rights.
Repentance remits ta`zeer as well. Al-Qarafy mentioned, with regard to the difference between hadd and ta`zeer, that “Ta`zeer is remitted by repentance; I know no disagreement in this regard. But hudud are not remitted by repentance according the most correct opinion. Almighty Allah said, “Except for those who return penitently before you gain power over them.” (5:34)
Though they agreed that the penalty of hirabah is remitted by repentance before arresting the perpetrator because Almighty Allah said, “Except for those who return penitently before you gain power over them”, scholars differed regarding the remission of hadd by repentance
The opinion of the majority is that it does not remit hadd. This is the position of `Ata’ and a group of scholars. But some of the Shafi`ites maintain that it does remit the hadd of theft because Almighty Allah said, “As for the male thief and the female thief, cut off their hands as a recompense for what they have earned, [and] as a chastisement of deterrence from Allah. And Allah is overpowering, all-wise. But whoever repents after his wrongdoing, and sets things aright, then, indeed, Allah shall grant him repentance.” [5:38-39] This opinion is attributed to al-Shafi`y; and other hudud were made analogous to it.
Al-Qarafy summarized this analogy saying, “Disbelief is the greatest evil and hirabah is greater in evil than fornication. Nevertheless, these two great evils are remittable by repentance. Thus, that which affects the remission of a higher crime is worthier to affect the remission of a lower one. This is a strong question that supports the opinion that hudud should be remitted by way of repentance through making analogy with this agreed upon ruling as a fortiori.” Then he attempted to give answers for it.
Al-Qurtuby said, “As for those who drink [alcohol], those who fornicate, and those who steal, if they have repented, set things aright, and become know for this and then they were brought before the ruler, he should not apply the prescribed penalty to them. But if they were first brought before him and then they claimed repentance, they should not be released.”
Ibn al-Qayyim said:
“With regard to considering the repentance of the committer of hirabah before arresting him to the exclusion of other perpetrators, it should be said: Where is such discrimination in the texts of the Lawgiver? He rather explicitly mentioned the consideration of the repentance of the committer of hirabah before arresting him either to draw attention to the consideration of the repentance of others as a fortiori- for if repentance remits the penalty of hirabah in spite of the severity and transitivity of its harm, it is a fortiori that repentance should remit other lower penalties. Almighty Allah said ‘Say to those who disbelieve that if they desist [from disbelief], what they have done shall be forgiven them.’ [8:38]
The Prophet (peace and blessings be upon him) said, “Whoever repents from a sin is like the one who has no sin.” Almighty Allah has made hudud as punishment for those who commit crimes and lifted both shari`ah and fatal punishment from the repentant. There is no shari`ahor fatal punishment at all for a repentant. In Saheeh al-Bukhary and Saheeh Muslim we read the hadith reported by Anas who said, “I was with the Prophet (peace and blessings be upon him) when a man came to him and said ‘I committed a crime that deserves the application of hadd, so apply it to me’, and he (the Prophet) did not ask him about it. Then the Prayer was called for and he prayed with the Prophet (peace and blessings be upon him). When the Prophet (peace and blessings be upon him) finished the Prayer, the man came to him and repeated his words, whereupon he said, ‘Have you not prayed with us?’ He said, ‘Yes.’ He said, ‘Indeed, Almighty Allah has forgiven you your sin.’”
So, as this person came declaring his repentance on his own without being summoned, Allah forgave him and the punishment of the crime he confessed was not applied to him. This is one of two opinions on this is issue and is one of the two opinions reported from Ahmad, and this is the correct one.
If it is said that Ma`iz and the Ghamidiyyah woman came to him and the punishment was applied to both of them, it will be said that there is no doubt that they came as penitent and there is no doubt that the penalty was applied to both of them and this was used as evidence by the proponents of the other opinion.
I asked our sheikh about this point and the purport of his answer was that the punishment is a purifier of the sin and the repentance is a purifier. But these two persons chose to be purified through the penalty over being purified through repentance only and they refused but to be purifed with the hadd. So the Prophet (peace and blessings be upon him) responded to their choice. But he recommended the choice of being purified by repentance over being purified by the hadd. He said concerning Ma`iz, “Would you have left him to repent so that Allah may grant him repentance?” Were it obligatory to apply the punishment after repentance, it would not be permissible to let him go. The ruler has the choice either to let him go, as he said to the confessing perpetrator “Go; for Allah has forgiven you”, or to apply the penalty, as he applied it to Ma`iz and the Ghamidiyyah woman who chose to apply it and refused but to be purified through it. Therefore, the Prophet (peace and blessings be upon him) sent them away many times but they refused except to have it applied to them. This approach is middle between the approach of those who maintain that it is not permissible to apply it after repentance at all and the approach of those who maintain that repentance has no effect at all on remitting it. If you reflect on the Sunnah, you will find it indicative of this middle position. Allah knows best.
As for the ahadith, there are many; and some of them apparently indicate generality with regard to the ethical crimes that include no personal right. Islam exhorts witnesses to conceal the affairs of the accused person and discourages taking cases to the court. In al-Muwatta’Malik reported that Hazal came and mentioned that a man committed fornication whereupon the Prophet (peace and blessings be upon him) said, “O Hazal! Should you have concealed his affair, that would have been better for you.”
Therefore, al-Kamal ibn al-Humam said, “It is undesirable to give testimony concerning a crime with a hadd penalty, because concealing such an affair is recommendable unless in the case of a person known for debauchery.”
Second: There is difference of opinion whether a non-Muslim is remitted from the punishment for ethical crimes that involve no personal right.
In his commentary, Ibn `Abdeen said, referring to Sharh al-Siyar, “He also mentioned that if amusta’man (non-Muslim who is given a pledge of security to reside temporarily in a Muslim country) in our lands has committed a punishable crime, he should only be punished for that which involves a right for a human being, such as retribution and the crime of accusing chaste people with fornication”.
This seems to be a sort of respect for his religious conviction, which makes him deem this deed lawful, and a fulfillment of the pledge of security. This is a degree of tolerance unfound in any positive law; namely, to give the foreigner more rights than the citizen.
Scholars have opinions and detailed discussions concerning this issue that should be revised in their references. Consequently, if the Islamic treatment is taken into consideration in terms of its comprehensiveness represented in not taking crimes to courts in principle, and the command to conceal such affairs, and the effect of repentance, and the difficulty of establishing the proof, the fuss raised about the harshness of Islam concerning crimes against ethics will change from finding it strange to finding it admirable and from shrinking to feeling honorable; and we will realize that the severe punishment is a threat to the criminal and a protection to the society.
There are quick clues to show how much the Islamic legislation surpasses the man-made laws with regard to being lenient to man, attempting to amend the criminal through repentance, and fighting dissolution in principle by fixing a threatening punishment that is applicable only in a rare and public case when the crime represents an aggression against the community.