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Punishment In Islamic Law

Introduction

In every population, security and steadiness are basic needs no less important than other needs like food and clothing. Travis Hirschi propounded a theory of sociable control that emphasizes on the role of modern culture in the control of legal behavior. It specifies the actual fact that no population are able to denounce criminal activity without duly recognizing its responsibility towards same. Quite simply the theory of social control elaborates on the onus that is distributed by contemporary society and devised control mechanisms to ensure a safe interpersonal arena, the one that is without any kind of delinquency. Man have been aware of the need for security because the beginning of life and with the formation and development of society, we've what's known as the establishment of their state or administration and the forming of laws.

The development of the man-made laws did not come to conclusion except in the last few hundreds of years after a long experience of learning from your errors. Alternatively, the Law of Islam that was delivered down to Muhammad in Allah's (SWT) final communication to mankind has paid careful attention to this matter and has come with a complete legal system. Taking into consideration the changing circumstances of modern culture as well as the uniformity and permanence of individual nature, it contains comprehensive rules and general guidelines suitable for working with all the current problems and circumstances that life may bring in any moment or place. Moreover it has set down punishments for several crimes that are not influenced by changing conditions and circumstances. In this manner Islamic Law combines between steadiness, versatility and firmness.

Punishment in general

Punishment is defined as the work of punishing or the procedure to be punished. Theories of punishment can be split into two basic philosophies, the utilitarian theory and the retributive theory. The utilitarian theory of consequence is aimed at punishing offenders to discourage or deter future wrongdoing. The goal of punishment is to act for example to the others of culture and put others on observe that criminal behaviour will never be tolerated and you will be punished. The retributive theory on the other side seeks to punish offenders because they have earned to be punished.

Punishments under Islamic Law

As with all penal systems, the Islamic legislations system prescribes punishments when someone is found guilty of a wrongdoing. The school of thought of punishments in Islam indicates that Islam provides consequence only as a final resort and the reason behind it is reform caused through a blending of human values and justice tempered with mercy. Punishments in Islam displays its beliefs where it puts the eye of the culture before the interest of a person. The punishment can be severe depending on offense but have to abide with strict rules and have prominent features. Some of the features of consequence are as follows :-

Punishments are designed to be a last resort;

Punishments are made to be samples to the public;

Punishment are to reform an offender;

Punishments are a form of retribution for the victim.

The consequence system in Islam is directed towards the three dimension of any offense being the criminal, population and the sufferer. To criminals consequence is kaffara (purification) and reforming for the re-acceptance into modern culture. To society on the other hands, abuse is a preventive method to save world from crimes and lastly to victims, abuse is a way of retribution. Punishments in Islamic Regulation were set right down to protect and secure the best five elements of people's pursuits: al-dharuriyat (requirements). They are deen (opinion), an-Nafis (life), al-'aqil (intellect), al-mal (riches) and an-nasil (family and lineage).

The types of punishment

There are four types of punishment that crooks may be subjected to, particularly, Hadd (literally meaning boundaries), Qisas (retribution) and Diyat (blood money), Ta'zir (chastisement) and Mukhalafat (which includes regions of the privileges of their state).

Hadd

Hadd (plural hudud) basically means restrictions or prohibition. It really is considered to be the most severe of offences as they go against God's will and punishments for these crimes are set as they are approved by Allah (SWT) in the Holy Quran. The seven offences approved are zina (illicit sexual relationships), qazaf (fake accusation of zina), sariqah (fraud), hirabah (highway robbery), shrub al-khamr (utilization of alcohol), riddah (apostasy), and baghy (rebellion against the federal government). These offences may actually have been preferred to indicate that life, family institution, property, honour and sociable order need to be protected. Facts for these offences have to be provided by abiding to strict guidelines thus, making conviction difficult. If the criminal offense is proven, offenders for these crimes are punished in public as a measure of deterrence. However it is only carried out as a final resort after an intensive work at reforming the person has totally failed.

For example, riddah, where a Muslim renounces his / her trust, it is cared for as treason. A obligatory abuse has been placed for this offense. Guys face beheading, while females face imprisonment before time where they renounce their new notion and revert to the teachings of Islam. However, every work is made to allow the male offender to revert to Islam including obtaining visits of spiritual officials prior to the abuse is inflicted.

The punishments that have been set and also have to be carried out if all requirements for data have been satisfactorily achieved for the rest of the offences recommended above are :

Zina - A married person would face death by stoning while an unmarried person would face 100 lashes.

Qazaf - 80 lashes are required for a free of charge person while slaves face 40 lashes

Sariqah - A first time offender faces amputation of one side at the wrist, a second time offender encounters amputation of the next hand while one third time offender face either amputation at the ankle joint or imprisonment before specific repents.

Hirabah - If fatality is induced, the offender faces death by beheading. If no loss of life occurs, the offender faces cross-limb amputation. In case the offender is imprisoned before commission, he is imprisoned until repentance.

Shrub al-khamr - 80 lashes are mandatory for a free of charge person while 40 lashes are necessary for slaves or those in the Shafi'i school

Baghy - Loss of life is imposed for those who deal with and are captured. However, ta'zir punishments are for many who are arrested or surrender.

Looking at the punishments set out above, it appears as very severe and severe but the primary reason for hudud punishments is to deter the commission rate of crime in the very first place. Taking the example of sariqa (theft), Allah SWT proclaims,

"As to the thief, male or female cut off his or her hands, a consequence for example, from God, for their criminal offenses: and God is Exalted in electric power".

Islam does not tolerate theft as it deprives a person of their hard earned money and belongings. Looking at the above verse, it is clear that the objective to punish the offender is to set a good example for the others of society an function of stealing will never be condoned or accepted by God.

What hudud looks for to bring is calmness and order and disciplined behaviour as people would you should think about their activities to do an evil deed as they know the consequence that awaits them is severe. This is actually the knowledge of hudud. But this is not to state that under Islamic Law, at the slightest chance available, punishment will be enforced. On the contrary, punishments would only be imposed as a final vacation resort where all the conditions and components of the crime have been satisfied.

Qisas & Diyat

Another feature of Islamic Laws is the right of retribution (Qisas). The idea of retribution is explained in the Holy Quran the following:

"The recompense for a personal injury is an harm equivalent thereto (in degree), but if a person forgives and makes reconciliation, his compensation arrives from God, for (God) loveth not those who do wrong. "

In simple terms, Qisas uses the doctrine of an eye for an eyeball, where the punishment is comparable to the criminal offenses. As Qisas is usually reserved for offences that require homicide or physical damage, for a offense of homicide, the consequence would be fatality while a criminal offense involving bodily injury, the punishment is always to inflict a personal injury comparable to the harm triggered. A distinctive feature of the punishment of these offences is usually that the victim is able to request for abuse or even to forgive the offender. The victim may also obtain diyat (bloodstream money), a kind of payment paid by the offender to the sufferer, the amount of which must be equal to the loss incurred rather than more. Within a hadith narrated by Imam Nissai it mentions that each area of the body has blood money, including the blood money for the sight is the same as 50 camels, etc.

Ta'zir

Ta'zir punishments are discretionary punishments that do not are categorized as the jurisdiction of hudud or qisas and can't be used as an alternative to these punishments. Ta'zir can, however, be used if a crime has been determined but has not met the requirements of hudud or if the offender has been pardoned by the victim. They will be the most flexible type of consequence because they look at the needs of contemporary society and changing interpersonal conditions. It is also flexible enough to understand the maximum standard benefit to society, effectively reform the offender and reduce the damage that was caused. The punishments may range between ranging from a warning to fatality.

One famous example occurred in the time of 'Umar ibn al-Khattab (ra), where he punished a scholar who offered fake testimony. He purchased that the scholar must have his head shaved, his face painted dark, and he paraded semi-clothed in front of men and women while seated backwards on the donkey. But the consequence can be just as severe as the punishments under hudud. The energy to punish is given to the judge or even to the legal specialists.

The reason for ta'zir is to prevent an offender from repeating the offence or even to incline a person to fulfil his or her duty. A number of factors go into choosing the correct abuse under ta'zir one of which is the situation of the offender where aspects like the social position of the offender as it is presumed those from the commoners require harsher abuse to reform than those in higher classes. It has to also be driven if the offender has dedicated similar crimes in the past, making the consequence individualized.

Mukhalafat

This addresses the regions of the privileges of the state. A person or group contravenes a legislations which the point out has enacted such as exceeding the quickness limit or parking in no car parking areas. The punishment imposed is at the discretion of the judge or the legal government bodies.

Kaffarah

If somebody who has not satisfied their responsibility (such as not fasting or undertaking prayers), the individual must pay kaffarah or penance. It isn't meant to be considered a punishment rather it is a reminder of their obligations. A couple of three varieties of kaffarah which are offering a sacrifice, nourishing six orphans or the indegent and executing fast for three days. The kaffarah that should be performed depends upon the violation that got occurred. It really is interesting to notice that the 'offense' here is not just one which is up against the talk about or another specific but is failing to fulfil one's duty or obligations under Islam of which there's also 'punishments' prescribed.

Punishment as a final resort

Severity of punishments as a form of reduction and deterrence

The ultimate shoot for a Muslim population is the fact that its individuals do not commit crimes at all and so there must be no occasion to resort to extreme punishments like the amputation of the hand in cases of theft or flogging or being stoned to death in conditions of zina. The very thought of enjoying someone lose a hands for committing robbery is definitely upsetting and considered harsh which is why it is not astonishing that hudud punishments often make the news in the press because of its severity. However the severeness of the consequence is to serve as a protection and deterrence from committing these offences to begin with. It is better to be severe to one and save a thousand than to be indulgent to all and wreck many. Allah SWT is certainly a good doctor who does not think twice to amputate a rotten limb to save the complete body. Just imagine if the thing is someone walking around with only 1 hands because he was punished under hudud for stealing, you would stay away from such person. This indirectly causes stigmatization for the offender as society would not desire to be associated with an offender. This is another motivating factor to desist from committing the criminal offense.

Further, because punishments under Islamic Legislations are seen to be harsh, it generally does not necessarily make them unjust. Matching to Abdur-Rahman. Doi, incidences of lowering off the hands are rare within an Islamic society for just two reasons. Firstly, statistically speaking, the simple enforcement of hudud abuse itself has a substantial deterring influence on potential offenders which inadvertently reduces the crime rate in a modern culture given by Shariah. He cites the example of Saudi Arabia (regardless of the distorted ideology of its federal) in recent times and the time of the first era of Muslims more than fourteen hundred years ago.

Secondly, the procedure in seeking conviction of alleged offender is so intricate and tight and involves a bunch of exceptions and conditions, as a result of which in most cases the offender's punishment is reduced from the amount of Hadd to Ta'zir, where the judgement is still left to the discretion of the judge.

Fear of Allah (SWT) and accountability in the Hereafter

According to Muslim jurists, punishments are made to keep the sense of justice alive locally by a public repudiation of the serves violating the restrictions establish by God. They are expected to develop 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 primary cause of most disorders and problem in individuals life. Hence severe punishments are enforced for purposes of dissuading most people from committing crimes. For this function it imbues the Muslims with the fear of Allah (SWT) and inculcates the sense of accountability in the Hereafter, as it is assumed that abuse should be avoided so far as possible.

" When it's said to him, "Fear God", he's led by arrogance to (more) crime. Enough for him is Hell;- and bad bed indeed (to lay on)!"- Surah Al-Baqarah 2: 206

" And dread the Day when ye will be brought back to God. Then shall every spirit be paid what it earned, and none will be dealt with unjustly"- Surah Al-Baqarah 2:281

Punishment is a required evil

Abdur-Rahman Doi, in his encyclopaedic work Shariah: The Islamic Regulation makes an insightful observation that the Quran generally adopts the same phrase for 'abuse' (retribution) for the original crime. Therefore, both crime and abuse are known as Sayyiah (evil). Utilizing the same word for both offense and abuse, it implies that consequence although justified by circumstances is actually speaking nothing but a necessary evil. This being the situation, at the first illustration where a offense has been devoted, Islam seeks to forgive and reform the offender wherever possible. However, where it is clear that it's improbable for the offender to reform or to mend his / her ways abuse would then be imposed as a last resort.

Waiver of punishments in the existence of doubt

Any shred of evidence that is doubtful or circumstantial will prevent abuse. It is narrated in the Seerah (life) of Muhammad (found) how he would exert himself to avert the punishment when individuals asked for consequence to be executed upon them. It really is narrated that Muhammad (saw) said, "To free someone criminal mistakenly is preferable to to punish someone innocent mistakenly"

A'isha narrated that the Prophet (peace be upon him) said :

"Ward off punishment approximately you can. If you discover in any manner out for a Muslim then arranged him free. In case the Imam makes a mistake in granting forgiveness, it is best for him than that he should commit a mistake in imposing consequence. "

Hence should there be a good solitary iota of doubt on the data, hudud abuse in such circumstances should not be imposed. A good example of this is in the case of adultery (zina) where in fact the testimonies of four eye witnesses are required to prove the criminal offense. Allah SWT says,

"If any of your women are guilty of lewdness, take the evidence of four (reliable) witnesses from between you against them; and if indeed they testify, confine them to houses until death do promise them, or God ordain to them some (other) way".

If there is a little uncertainty, no Hudud penalty is given at all, instead they will then be subject to the punishment of qadhf (fake accusation). Hence, Hudud punishments are waived in the existence of doubt, and that benefit for the doubt is always directed at the accused.

The Right of Retribution

Under Islamic legislation, it offers the aggrieved get together the right of retribution. This right of retribution is one of the individual, and not to the world or point out. This simple transfer in the responsibility brings about a deep change in the whole system of putting into action justice. Rather than starting an irreversible procedure for trial and consequence which would involve a great deal of time and costs, Islamic legislations leaves the ground open for pay out between individuals, with no disturbance by impersonal bureaucratic machinery, though under no circumstances can the individual take the law into his or her own hands.

If we compare this with a country like Malaysia which includes its own Lawbreaker Laws enshrined under the Penal Code and the Offender Procedure Code, in which a person is a sufferer of robbery or robbery for example, the action contrary to the accused is brought by their state rather than the victim. Also where all the elements of the crime are satisfied, the accused would be either imprisoned for a period which may expand to seven years, fined or sometimes to both imprisonment and fine. Under this legal rules system, the taxes payer who may include the sufferer themselves would be burdened with 'taking attention' of the 'welfare' of the accused whilst in prison. Fines paid are paid to the state of hawaii and not to the sufferer who is actually the aggrieved party.

It was only just lately that Malaysia launched the concept of victim impact assertions in courts. This is an avenue provided to the subjects of crimes to tone their feelings with regards to the offence determined against them of which the victim impact assertions will be considered when imposing sentencing or punishment. Hence what is certain from the Malaysian Lawbreaker Legislation system is that unlike the Islamic legal system upon the establishment of guilt and where in fact the accused is available guilty of the offense, the imposition of punishment is particular so that a matter of first choice.

The Idea of Forgiveness

The idea of forgiveness is one of the primary elements under the concept of consequence under Islamic legislations. In Islamic Legislation the desires of the victim or his family is given an important role in deciding set up abuse should be carried out. The sufferer is permitted to pardon the perpetrator because the punishment in crimes under Qisas is definitely the right of the sufferer which is avoidable because "whoever forgives and makes amends, his reward is due from Allah". The perfect way is never to seek revenge in any way but reconciliation and to make the offender realize the gravity of his or her offence.

The Concept of Tawbah

The concept of tawbah is also another aspect of interest. If a person does commit criminal offense, Islam allows the given individual to repent (tawbah) as Islam is convinced in awarding its believers another chance. Tawbah brings the meaning of go back from sin. The idea of tawbah can be obviously seen to be urged in the Holy Quran through the verse,

"If the thief repents after his criminal offense, and amends his conduct, God turneth to him in forgiveness: for God is Oft-forgiving, Most Merciful" ; and

"Except those who repent and make amends and openly declare (the Truth): to them I transform for I am Oft-returning, Most Merciful"- Surah Al Baqarah 2:160.

One is said to have repented when there is a sense of genuine remorse, pity and resolve never to repeat the crime. Where a person has repented before being trapped or arrested, the result of this is that it can remit the hadd consequence.

Islam's approach towards offense prevention

Islam has searched towards crime protection more than punishing the criminal. This is comparable to the English declaring "Prevention is better than cure". For this purpose Islam has prescribed preventative measures that are to be used order to suppress criminal offenses in the society. Some of the key methods that are thought to help members of the culture to resist the urge to commit crimes are the following:-

Moral Development and 'pre-crime reform'

Self purification is one of the primary goals of the Prophet's (tranquility be after him) mission. In Surah Al- Baqarah 2: 112 it says,

" Nay, - whoever submits his entire personal to God and it is a doer of good, - he'll get his compensation with his Lord; on such shall be no fear, nor shall they grieve. "

The teachings of Allah aim towards performing what's good and abstaining from injury. When the individual's heart is with the Almighty God, he does not allow for his ego to regulate his mind and its own animal demands, so indirectly one abstains from committing crimes. It is also for this reason that Muslims are required to pray five times per day so as they are constantly reminded that there is an Almighty who created them plus they should bow their head in total humbleness towards God. It is a collective mindful meditation that helps you not to neglect who you are and where you belong.

In a Muslim population Khurram Murad argued that every institution is value focused and owes a responsibility to the moral development of every person. Reform is therefore a pre-crime responsibility and not a post-crime symptoms. Islamic Law makes an effort to ensure that the inducement to commit crime is minimal. This is for instance the real reason for the complete prohibition of consuming intoxicants and powerful free-mixing of unrelated members of the contrary genders. Portion of pre-crime reform consists of development of an environment where preventive actions are already set up. Once the criminal offenses is determined however, the best place for reform is in the family and in society where a felony is to reside in after the abuse rather than in a prison where every inmate is a unlawful.

While Shariah shields modern culture by legislating punishments and precautionary measures against crimes, it generally does not resort to punishment without first preparing for the individual a situation conducive to a virtuous life. It would be considered unjust from the standpoint of Shariah to permit a hazardous function, such as drinking alcohol and then punish a person for drinking while traveling.

Family

Family is considered as the pillar of contemporary society. Children research with their parents as the professors of customs, practices and morality. Hence secure associations between parents, spouses and children reduces the need for participating in criminal activities. Research has shown that children from solo parent or guardian homes, dysfunctional young families, etc are usually involved in crime as a way to stay from the 'problems' at home or for purposes of seeking attention. Therefore a solid family bond in conjunction with spiritual and moral values and teachings wouldn't normally produce a need for individuals to commit offences.

The fight poverty

This identifies the society's responsibility to help the poor (in the form of zakat) as poverty is said to be one of the reasons behind the incident of criminal offense. The Holy Quran has unveiled 'zakat' as one of the good deeds which contributes to the purification and development. In Surah Al-Baqarah 2 :110, it provides,

"And become steadfast in prayer and regular in charity: and whatever good ye send forth for your souls before you, ye shall find it with God: for God views well all that ye do. "

In woman state, every person is entitled to sociable security through the general public treasury where money are collected from various sources including the obligatory annual payment of zakat. Where a citizen is influenced by power of circumstances since he cannot earn his living for himself or his family scheduled to lack of occupations or had not been looked after by the central treasury, the modern culture and authorities will be looked at at fault no hudud consequence will be enforced on the accused.

It is maintaining this principle that Umar bin-al-Khattab the second Caliph or ruler of Muslims after Prophet Muhammad (serenity be after him) did not apply the hudud abuse to the people accused of theft over famine in the condition of Madinah. Similarly, if a person is found stealing out of appetite or to fulfil his basic needs, then no consequence is meted out to him as it is deemed that the problem lies with society and government because it is their obligation to observe that no individual is without methods to support himself or his family with dignity.

"And in their wealth and possessions (was appreciated) the right of the (needy), him who asked, and him who (for some reason) was avoided (from asking). " Surah Al Dhariyat (51:19)

In Malaysia for example, a mom who stole a tin of milk for purposes of nourishing her child was sentenced to a day's prison and imposed a RM500 fine in default of 1 month's jail. One tends to wonder considering the sentence exceeded if the word enforced was compassionate and justified taking into consideration the circumstances that drove the mother to steal to begin with. Also if the mom had RM500, she would not want to vacation resort to stealing in the 1st place. Further being the sole breadwinner, in the case she is struggling to pay the fine, then she would need to provide her one month prison sentence and risk being segregated from her child. This is actually the implication of the strict criminal regulations in Malaysia.

Conclusion

To are in constant concern with being attacked or robbed is surely undesirable situation. The thoughts and ideas that are prevalent in the culture around us have an effect on the way people behave and in this culture people are constantly motivated to increase their riches and become successful. However when this is combined with the notion of liberty, people then put no boundaries for themselves how to accomplish these goals, and criminal offense is a fairly easy way to fulfil them.

The current procedures taken up to counteract this lethal tide are appearing to be inadequate. This is seen from the upsurge in the number of snatch theft instances in Malaysia for example. Scammers mock at the possible results of their activities and many come out of short prison phrases to offend again. Victims on the other side feel disconnected from the criminal justice system as their thoughts and opinions and wants are not considered. All of this inevitably results from a judicial system that is man-made and a society which is governed by people's whims and dreams.

In Islam, although Islamic Condition has a thorough judicial system which works as a deterrent to thieves and reform those who have gone astray, Muslims are effortlessly inclined from offense because their opinion and concern with Allah's (SWT) punishment prevent them from committing it in the first place. As well, the frame of mind in world towards crime is one of total rejection. The financial system will ensure that individuals are not compelled to vacation resort to crime as a way of success. These factors will automatically check the degrees of crime in an Islamic point out. Hence Islam attempts to wipe out all circumstances and motives that can lead to crime.

But even if after that a criminal offense is committed, Islam will try to waive the execution of consequence if there is any doubt about it. By this it safeguards the life span of the accused and guarantees him that no abuse will be carried out until every reason is tired and every reason behind discarding the punishment is investigated. The rights of the accused are safeguarded by the actual fact that speculation and accusations can't be grounds for punishments and that the accused loves the greatest assurance of justice and being spared the abuse whenever you can.

~The End~

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