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Old Monday, January 21, 2019
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Default Islamic Perspective on Crime and Punishment

CRIME AND PUNISHMENT IN ISLAMIC SHARIA

In Islam the realms of God and Caesar are one, instead of having separate jurisdictions, as allowed by Christ. Here, by providing a complete system of social legislation based on divine sanctions, Islam comes much nearer to Judaism than to Christianity. Consequently, Islam is a divine law based on four sources: Quran which is the word of God. Supplementary to it is Hadith, which are traditions of the Prophet, the records of his actions and sayings -- from which Muslims must derive help and inspiration in arriving at legal decisions. If there is nothing either in the Quran or in the Hadith to answer any particular legal question, Muslims have to follow the dictates of secular reason in accordance with certain definite principles.. Thus, Islamic law is derived from four sources:
1- Quran.
2- The Sunnah, which is the traditions of
Prophet Mohammad.
3- Ijma, which is the consensus of opinion among
the learned Muslim Jurists.
4- Qiyas, which is analogy and reasoning.

Definition of crimes and their categories in Islamic Criminal Law

The word in Arabic used for crime is 'jareema' which means "trespass, overleap" the bounds of and also means to break or violate. In the Quran it is used in the meaning of sin (zanb). Because overleaping and trespassing the bounds made by God is a crime and committing crime is a sin; and therefore those who commit crimes are sinful.

Muslim legists and jurists have defined it as act of going against or beyond the provisions of law, whether commands or prohibitions which is, in other words, crossing the bounds made by God. As such, certain actions which have been forbidden and sanctioned by punishment in Islamic Law are considered crimes and hence are considered crimes against religion.
In Islamic Law, crimes are divided into two major groups:

1- Crimes for which 'Hadd' punishments are given such as
unlawful intercourse (zena); its counterpart, false accusation
of unlawful intercourse (Kadhf) ; drinking wine (shurb
al-khamr); theft (sarika) and highway robbery (al-haraba).

2- Crimes such as homicide, bodily harm and damage to
property. Crimes of this kind are called ' Jinayat' (literally,
offenses). The punishments for such crimes are such as 'Qisas'
(retaliation); 'Kaffara' (expiation); 'Dia' (blood money); and
'Taazeer' (disciplinary actions).

The major difference between these two groups of crimes is that the punishments (Hadd punishment ) ordained against the first group are considered the "rights of God" for which there is no pardon and no concession, while the punishments prescribed against the second group are the right of man and therefore they can be reduced or totally ruled out and pardoned if the victim, or in case of the murder, his next of kin agrees to do so.
Muslim jurists have differed on the question whether punishments Qisas, Dia and Taazeer are also considered under Hadd punishment. The majority of jurists have expressed their opinion that Qisas (retaliation), although ordained by God, does not come under Hadd, because it is the right of humans and is not the right of God; while Taazeer is neither sanctioned by God nor is it the right of God.. Crimes under Hadd punishments must fulfill two conditions: first is their invasion of the right of God and, secondly, that the punishments would have been sanctioned by the Quran and the Sunnah. The crimes for which the punishment of Qisas applies fulfill one condition while Taazeer fulfills none.

Crimes for which Hadd punishments Are given

In the Quran the word 'Had ' is always used in the plural 'Hudud'. It means the limits laid down by God; i.e. the provisions of the law whether commands or prohibitions. In Muslim criminal law Hadd means an unalterable punishment prescribed by Divine law which is considered the right of God.
The crimes for which Hadd punishments apply are considered as crimes against religion because the person who commits such crimes violates the rules of God and transgresses the bounds made by Him. The Had is a right or claim of Allah ( haqq allah) and, therefore, no pardon or amicable settlement is possible.

These crimes against religion are :

1- 'zena ', fornication , i.e. between persons who who are not in a state of legal matrimony. The Had for this crime is stoning to death for the married, 100 lashes for unmarried and 50 for slaves. The Hadd punishment for the unmarried who commits the crime of unlawful intercourse is mentioned in the Quran while the punishment for the married, guilty of this crime is sanctioned by Sunnah. Hadd will not be applicable to the insane and to the minors. A full investigation is also condition. If the required number (4
witnesses) is incomplete the Hadd will not be implemented.
However, in the absence of four witness, confession of the accused is be deemed conclusive evidence

2- Kadhf is , slander in a special sense. If anyone accuses a respectable person of incontinence , without being able to bring four persons to support him, he is liable by law a definite punishment (Hadd) of 80 lashes for Kadhf.

3- al-sariqa . theft. The Quran says: " As to the thief, male or female, cut off his or her hands: a punishment by way of example, from God , for their crime: And God is Exalted in Power. The Cannon Law jurists are not unanimous as to the value of the property stolen, which could involve the penalty of the cutting off the hand. The majority hold that petty thefts are exempt from this punishment. The general opinion is that only one hand should be cut off for the first theft, on the principle that " if thy hand or thy foot offend thee cut them off and cast them from thee" , apparently in the age of Jesus thieves were crucified . It should be mentioned in this connection that the second Caliph Omar, suspended this punishment during the years of famine.

4-al-haraba, highway robbery. Many crimes, including treason against the state, may come under al-haraba. Punishment of this crime is: execution, crucifixion, or the cutting off of hands and feet from opposite sides or exile
from the land.

al-Murtad. one who turns back especially from Islam", an apostate.
Apostasy is called 'ridda, it may be committed verbally by denying a principle of belief or by an action for example treating a copy of Quran with disrespect. In the Quran the apostate is threatened with punishment in the next world only; "the wrath of God will fall upon him. the death penalty of al-Murtad came in a tradition " Slay him, he who changes his religion."

5- Shurb al-Khamr, drinking wine. Hadith has many utterances
against this theme: " wine is the key of all evil", "Cursed is he who drinks, buys, sells wine or causes others to drink it.". As to punishment of him who drinks wine, Hadith tells us that Prophet Mohammad and his successor Abu
Bakr were wont to inflict 40 blows by means of palm branches or sandals. Under Omar 's Caliphate it was 80 for the first time, 80 in the second time and death penalty for the third.

Acceptance of Evidence-

Islamic law requires the following conditions to be fulfilled for the acceptance of the evidence in order to avoid any sort of injustice by punishing an innocent as a result of false accusations:
(a) that the number of the witnesses must not be less than four;
(b) that all witnesses must be men particularly in the crime of 'zena'. In other cases where women's evidence is acceptable two women would be counted equal to one man
(c) that the witnesses must have seen the incident of crimes by himself or otherwise the evidence would not be accepted
(d) that the witness must be Muslim, Witnesses must be just and pious and they themselves must not be corrupt, The witnesses must not have any sort of enmity or malice against the accused.

confession
In the cases of confession, Islam lays down certain conditions;
(a) the person (man or woman) confessing must be adult;
(b) must not confess as a result of any force;
(c) the confession must be uttered four times;
(d) that the confession must be in court before a jury.

It is also a condition that the punishment be given openly and publicly.

The moot question is; Can any proof positive be established of the crime of Zena? The answer, in all fairness, is emphatic 'NO'. Adultery is nerve-racking
vice, not like hypocrisy or gluttony, it cannot be practised in public. It is next to impossible to prove such a crime. The eye-witness of four just believers is required if a married person is to be killed for adultery.
As for confession, no one will confess such a crime to be stoned for it.
For a hand to be cut off, two believers must testify and the crime must fall outside the 11 separate restrictions (one of which if the object is worth less than 17 grams or if the theft took place within the family etc.)
al-Haraba can be exploited politically since its definition covers a wide area of crimes.
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