Crime and Punishment in Islamic Law

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Types of Crime in Islamic Law:

There are three categories of crimes in Islam: Hudood, Qisas and Tazir. Hudood crimes are punishable by Hudd, which means that the penalty for them is established in accordance with God’s rights and is prescribed by the Quran. Prosecution and punishment for such crimes are mandatory, as opposed to Tazir for which they are discretionary.

Hudood Crimes:

There are seven Hudood Crimes

Apostasy: (Ridda)

The penalty is set forth in the Quran as follows:

And whoever of you turns from his religion and dies disbelieving, their works have failed in this world and the next. Those are the inhabitants of fire: therein they shall dwell forever.

Apostasy is to reject Islam by word, deed or omission. Turning against Islam by word is, for example, to deny the existence of God, the profits and the angels; or by rejecting any part of the Quran or its principal teachings like prayer and almsgiving. Rejecting Islam by deed is to act contrary to its teachings, as in the case of committing adultery. Rejecting Islam by omission is to refrain from doing an act required by the Quran. In such a case the offender is considered an infidel.

Transgression: (Baghi)

The punishment for transgression is defined in the Quran:

If two parties among the believers fall into a quarrel, make ye peace between them, but if one of them transgresses beyond bounds against the other, then fight ye all against them who transgresses until he complies, then make peace between them with Justice, and be fair. For God loves those who are fair and just.

Jurist disagree on the definition of transgression and its prerequisites, but the general and common definition agreed upon by the majority refers to transgression as rising against the legitimate leader by use of force. The uprising could be groundless or it could be based on specific interpretation of certain rules which the uprising Muslims rely upon in their revolt against the ruler. These claims, however and the conduct of uprising participants are such that they compel the Imam to overcome them by force. The Imam however should not take the initiative and fight them unless he knows their arguments and calls on them to stop the uprising. If they refuse, he is allowed to fight them with armed force until they surrender or are defeated. If any one of the transgressors is killed in the fighting, he will be considered as having been punished by Hadd.

Theft:

As to the thief, male or female, cut off his or her hands, a punishment by way of example, from God for their crime.

The Hudd for theft is to sever the right hand of the thief. A requirement for such punishment is that the thief must commit theft with clear intent to acquire the stolen property, without the consent of the victim. Also, he must carry the property away from the place where it is usually kept. The thief must also have broken into the safe or any other money container. Furthermore, the property stolen should be of value in Islam.

The penalty is cutting of the hand. There is no amputation of the hand for stealing property which is not valued in Islam such as alcohol or pork. The value of the property stolen should reach the minimum value (nisab) in order to apply the penalty of amputation. If the value of the stolen property is less than the minimum, the thief  should be punished by Tazir.

Highwaymanship: (Haraba):

This penalty is defined in the Quran as follows:

The punishment of those who wage war against God and His apostle, and strive with might and aim for mischief through the land is execution, or crucifixion or cutting off of hands and feet from opposite sides or exile from the land.

From Islamic jurists call Haraba either fatal theft or highway robbery. The offence occurs in any of the following situations

  1. The victim is only confronted but not robbed
  2. Property is forcibly taken from the victim.
  3. The victim is murdered but not robbed\
  4. The victim is murdered and robbed.

Adultery: Zina

The penalty for adulterous is flogging with hundred stripes for the unmarried and stoning for the married person. The flogging of the unmarried persons is based on the Prophet’s saying:

The woman and the man guilty of adultery or fornication, flog each of them with 100 stripes. Let not compassion move you in their case; in a matter prescribed by God, if he believed in God and the last day, and let one party of the believers witness their punishment.

The stoning of the married person is based on the Prophet’s hadith:

Take from me as fornication. Flog both of them with hundred stripes and keep them away from most of society for a year and for a woman and a man guilty of adultery, flog them with hundred stripes and stoned them.

During his life the Prophet ordered the stoning to death of a man and a woman found guilty of adultery.

As a prerequisite for applying the Hadd of adultery, the crime must be witnessed by four eyewitnesses or confessed to by the adulterer himself, who must give full details of the act. It is nearly impossible to satisfy the prerequisites of four eyewitnesses, unless the act is performed openly and publicly. In such case the Hadd penalty is not exacted unless the adulterer confessed to having committed adultery and requests the penalty. As with other Hadd penalties, in case of doubt, the penalty cannot apply.

Slander:

This is based on the hadith of a Prophet:

And those who launch against chaste woman, and produce not four witnesses to support their allegation, flog them with 80 stripes and reject their evidence even after, for such men are wicked transgressors.

The penalty for slander is flogging with 80 stripes. Slander in the sense means the false accusation of adultery, sexual abnormality, or deformation of a married Muslim, who is pure and physically capable of committing what he is accused of. If the offender is impotent or weak, the penalty becomes Tazir and not slander.

Drinking Alcohol:

The habit of drinking wine prevailed among the Arabs when Islam appeared so complete prohibition was not imposed immediately, but gradually. It is stated in the Quran:

They asked thee concerning wine and gambling. Say, in them is a great sin, and some profit, for them. But the sin is greater than the profit.

At a later time and other teaching was revealed in the Quran:

Ye who believe, approach not prayers with the mind befogged, until ye can understand all ye say.

Qisas Crimes:

The word Qisas means equality or equivalence. It implies that a person who has committed a given violation will be punished in the same way and by the same means that he used in harming another person. Many Western writers refer to Qisas as retaliation, which connotes more vindictiveness or revenge than the redress of a wrong by equalising the harm.

There are five Qisas crimes.

  1. Murder
  2. voluntary killing (similar to intentional killing or voluntary manslaughter)
  3. Involuntary killing
  4. Intentional physical injury or maiming.
  5. Unintentional physical injury or maiming

These crimes are defined both in the Quran and the Sunnah and both established two types of sanctions: retaliation, the principal of “talion”, or Diyat, compensation.

For all practical purposes, crimes of Qisas fall into two categories, the first being homicide and the second, battery. Both intentional and unintentional homicide are included but the sanctions are different. The term killing includes unjustifiable and in excusable homicide and for which there is either an element of intention or recklessness.

Tazir Crimes:

Tazir offences are those that are not encompassed by either of the above two categories but that result in tangible individual or social harm and for which the penalty is to be rehabilitative (the meaning of Tazir). Such a penalty could be imprisonment, the infliction of physical punishment, or the imposition of compensation in accordance with the principle of rehabilitation. The penal action and the penalty for those crimes are discretionary and are based on the social opportunities, meaning the social interest in prosecuting the case, rehabilitating the offender, and meeting the claims of the aggrieved party. Unlike Hadood or Qisas retribution is not a guiding principle

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