(part 1 of 5): Introduction
Security and stability are basic human needs that are no less important than food and clothing. Without security and stability, a person is unable to live his daily life, not to mention new ideas or the development of a higher level of civilization.
Man has been aware of the need for security since the beginning of his life on earth, and he has expressed this awareness time and time again. With the formation and development of human society, he expressed these and other needs through the establishment of a state and the establishment of laws. This has been done to strengthen general security, resolve disputes and conflicts that threaten society, and counteract external threats to security from other nations. The development of these man-made laws has only been completed in the past few centuries as a result of a lengthy process of trial and error.
In contrast, the law of Islam Muhammad, God’s blessings and peace be upon him, was sent down to humanity in its perfect form as part of God’s final message. Islamic law attaches the greatest importance to these things and provides a complete legal system. It takes into account that circumstances in society can change, as can the permanence and steadfastness of human nature. Accordingly, it contains understandable principles and general rules that are suitable for dealing with all problems and circumstances that life could bring about at any time or anywhere. Likewise, it has set immutable penalties for certain crimes that are unaffected by changing conditions and circumstances.
From which pivot point does Islam approach the fight against crime? What are the principles on which the Islamic Penal Code is based? What are the distinguishing features of this code? What are the measures he takes to fight crime? What are the punishments that exist in Islam? What are the goals behind their enactment? These are the questions that are dealt with on the following pages.
The Islamic Approach to Combating Crime
The very first goal of any Islamic legal provision is to ensure the well-being of mankind in the world and the next is to build a righteous society. This is a society that God worships and blooms on earth, one that uses the forces of nature to build a civilization in which everyone can live in a climate of peace, justice and security. This is a civilization that allows a person to meet all of their spiritual, intellectual and material needs and to cultivate every aspect of their existence. This ultimate goal is mentioned in several places in the Quran. God says:
“Truly, we sent our messengers with clear evidence and sent down the book and the balance with them so that people may practice justice. And we created the iron, in which (force to) violent war is as well as to all kinds of uses for humanity … ”(Quran 57:25)
And He says:
“… God wants it easy for you – He does not want it difficult for you do… ”(Quran 2: 185)
And He says:
“God wants to make clear to you the ways of those who were before you and to guide you there and to turn to you in grace. And God is All-Knowing, All-Wise. And God wants to turn to you in grace; and those who follow the lower desires want you to deviate completely (from the right path). God wants to relieve your burden; because man is weakly created. ” (Quran 4: 26-28)
And He says,
“Verily, God commands to be just (to do), to do unselfish good and to be generous to relatives; and He forbids what is shameful and hideous and violent … ”(Quran 16:90)
Since Islamic legislation aims to achieve the well-being of people, they can all be traced back to the universal principles that are necessary to ensure that human well-being can be ensured. These universal principles are:
1. The protection of life.
2. Protection of religion.
3. The protection of the mind.
4. Protection of parentage.
5. Protection of property.
The Islamic Penal System aims to meet these five universal needs. To protect life, the law requires retribution. To protect religion, it prescribes the punishment for apostasy. To protect the mind, it prescribes the punishment for drinking. In order to protect the lineage, it prescribes the punishment for fornication. To protect property, it stipulates theft for theft. To protect everyone, it stipulates the punishment for street robbery.
Therefore, we should realize that the crimes for which Islam has fixed penalties are as follows:
1. Violations against life (murder or assault).
2. Violations of property (theft).
3. Offenses against parentage (fornication and false accusation of adultery).
4. Violations of the mind (use intoxicants).
5. Violations of religion (apostasy).
6. Violations against all these basic needs (street robbery).
(part 2 of 5): Forms of Punishment in Islam
Distinctive Features of Islamic Criminal Law
According to the aforementioned principles, when Islamic law and contemporary law come together, priority must be given to Islamic Law. Islamic criminal law has unique values and distinctive features, the most important of which are:
1. The inner stimulation of the moral consciousness of man completely complements the external control. This is due to the fact that when dealing with social problems such as crime, Islamic law does not rely solely on external deterrents. Rather, it focuses on internal deterrence, emphasizes human conscience. It strives to develop this conscience in a person from childhood so that it can grow up with the noblest moral character.
It promises success and salvation for those who work righteously and warns the evildoers of a bad fate. In this way it arouses emotions, leads the criminal to give up his ways by inspiring him with faith in God, with the hope of divine grace and fear of God’s punishment, adherence to moral values, charity and that Desire to do good to others and to refrain from hurting and harming them.
2. It has a balanced overview of the connection between the individual and society. This becomes clear from the fact that while the divine law protects society by using punishments and preventive measures against crimes, it does not leave the individual aside for the benefit of society. On the contrary, its priority is to protect individuals, their freedom and their rights. It provides every security precaution so as not to give an excuse to a person to use criminal means. It does not punish without first creating a situation for the individual that leads to a valuable and happy life.
Forms of punishment in Islam
Islamic law is based on two complementary basic principles with which it combats the problems of life and provides solutions for them. These principles are: the stability and consistency of his fundamental teachings on the one hand and the dynamics of his subordinate orders on the other.
The Islamic law provides fixed statutes for the immutable aspects of life. For the dynamic aspects of life that are influenced by social development, expanded horizons and advances in knowledge, Islamic Law comes with general principles and universal rules that can be applied in numerous different ways and a variety of circumstances.
If we apply these principles to the penal system, we find that Islamic law has come up with clear texts that prescribe fixed penalties for crimes that no society is free of, crimes that do not vary in nature because they are connected with the constant and unchangeable factors of human nature.
Islamic law opposes other crimes by establishing the general principle that resolutely indicates their prohibition but leaves the decision about the punishment to the correct political authority in society. Political authority can then take the particular circumstances of the crime into account and determine the most effective way of protecting society from harm. In accordance with this principle, there are three types of punishment in Islamic law:
1. Mandatory punishments,
3. Punishments at one’s own discretion.
(part 3 of 5): ‚Huduud‘ – Mandatory Punishments
1. Mandatory Punishments
Crimes that fall into this category can be defined as acts prohibited by law, which God is bound to prevent by means of predetermined punishments, the execution of which is considered to be the right of God.
These punishments have certain peculiarities that distinguish them from others. The following are included:
1. These penalties can neither be increased nor reduced.
2. These penalties cannot be dropped by a judge, political authorities, or victim after the related crimes have been brought to the government. Before these crimes are brought before the state, the victim may be able to forgive the criminal if the damage was personal.
3. These punishments are the ´Right of God´, which means that the legal right, which is involved here, is of a general nature, whereby the broad welfare of society is in the foreground.
The following crimes come under the jurisdiction of fixed penalties:
Theft is defined as the stealing of someone else’s property from a safe place with the intent to take possession of it.
robbery Street robbery is defined as the activity of an individual or a group of individuals whose strength prevents others from passing through a public transit route, with the intention of taking possession of the passengers or otherwise causing them physical harm.
3. Fornication and adultery
This is defined for any case in which a man has intercourse with a woman that is not allowed to him. Any relationship between a man and a woman that does not involve sexual intercourse does not fall under this category and this fixed penalty.
4. False accusation
This is defined for falsely accusing a decent, innocent person of committing fornication or adultery. It also includes denying the descent of a person from his father (which makes it appear that his parents committed fornication or adultery). False accusation includes any allegation of fornication or adultery that is not supported by evidence accepted by Islamic law.
One of the most important goals of Islam is the well-being of people and avoiding what harms them. For this reason, it „commands good things and forbids harmful ones“. This is how Islam protects people’s lives as well as the abilities of their minds, their possessions and their reputation. The ban on wine and the punishment for drinking are among the laws that clearly show Islam’s care in these matters, because wine can destroy all these basic needs, it has the potential to destroy life, wealth, reason, reputation and religion.
„Oh you, who believe! Intoxicating, gambling, sacrificial stones and arrows are an abomination, the work of Satan. O avoid them so that you will be successful. Through the intoxicating and lottery game, Satan only wants to trigger enmity and hatred between you in order to prevent you from remembering God and from prayer. Are you going to let yourself be held? ” (Quran 5: 90-91)
Apostasy is defined by a Muslim making a statement or committing an act that takes him outside of Islam. The punishment prescribed for this in the Sunnah is execution and came as a remedy for a problem that had existed in the time of the Prophet. This problem was that a group of people publicly accepted Islam together and then left it together to cause doubt and insecurity in the hearts of believers. The Quran tells us of this event as follows:
“And then a group of the people of the Scripture said: ‚Believe in what was sent down to the faithful at daybreak and deny it at the end; maybe they will turn back. ” (Quran 3:72)
Therefore, the prescribed punishment for apostasy was introduced so that the apostasy could no longer be used as a means of raising doubts about Islam.
At the same time, the renegade is given time to repent, so that if he has only a misunderstanding or doubt about a particular matter, that doubt can be cleared and the truth can be explained to him. He is asked to repent for three days.
(part 5 of 5): Goals of the Islamic Penal System
The Goals of the Islamic Penal System
The Islamic Penal System has many goals, the most important of which are as follows:
The first goal: Islam strives to protect society from harm from crime. It is common knowledge that if crimes are not punished with severe penalties, there is a great danger to society. Islam endeavors to spread social stability and security and to make life in society safe and peaceful. He has made this point of view a level of action by making laws that deter crime. This goal is expressed in the following verse, which speaks about retribution and its impact on society:
“In retribution is life for you, O you who are insightful! Perhaps you will fear (Allah). ”(Quran 2: 179)
If the killer or any other criminal knows the full extent of the negative consequences that the crime is causing for him, he will think a thousand times over whether or not to commit it. Awareness of the punishment will dissuade the criminal from committing the crime in two ways. A criminal who has been punished before will most likely not come back to him again. As for the rest of society, awareness of the effects of crime prevents them from committing it. In order to make the general effects of the crime known, Islam has introduced the principle of publicly announcing when the punishment will be carried out. God says:
„… and a number of the faithful should attend their torment.“ (Quran 24: 2)
The second goal: Islam wants to improve the criminal. The Quran often mentions repentance in connection with the crimes that it enumerates and makes it clear that the door to repentance is always open whenever the malefactor gives up his crimes and behaves appropriately. He has determined remorse to be a means that, under certain circumstances, can avert a fixed punishment, such as the punishment for street robbery.
“… Except for those who repent before you have control over them. So know that God is Forgiving, Merciful. ” (Quran 5:34)
God says of the punishment for adultery:
“But if they repent and improve, let them go; for God is gracious, merciful. ” (Quran 4:16)
After mentioning the punishment for false accusation, God says:
“… except for those who later regret and improve; because truly, God is Forgiving, Merciful. ”
After mentioning the prescribed punishment for theft, God says:
“But who repents and improves after his wrongdoing, God will take remorse from him; for God is Forgiving, Merciful. ” (Quran 5:39)
This goal is more commonly observed in discretionary punishments where the judge is required to consider the offender’s circumstances and ensure his recovery.
The third goal: the punishment is a purification for the crime. It is undesirable to mildly treat a criminal who threatens the security of society. The criminal should receive his fair wages as long as he is content to take the path of evil instead of the path of righteousness. It is the right of society to protect its safety and that of its individual members. The Quran confirms this goal by mentioning some of the punishments. God says,
“Cut off the hands of the thief and thief in retaliation for what they have done.” (Quran 5:38)
„The wages of those who wage war against Allah and His Messenger and seek to cause corruption in the country should be that they are killed or crucified, or that their hands and feet are cut off alternately, or that they are expelled from the country.“ ( Quran 5:33)