Criminal law refers to the rules in a community that define conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of others, and that specify the punishment to be imposed on people who do not obey the rules. Criminal laws exist in every community, small and large, civil and religious, and are usually written by appointed officials. Criminal law has five main purposes: to define immoral or illegal conduct, to serve as deterrents to bad conduct, to protect the vulnerable, to give recourse to victims and to reform offenders.
Although humans are endowed with instinctive knowledge of right and wrong, they often ignore their conscience, making “law” important as a criterion for civility. Therefore, laws serve as “codified conscience.” However, not only can manmade laws can be arbitrary, inconsistent, or unfair to certain groups, but penalties can also be ineffective. It stands to reason that God, who is most knowledgeable of the characteristics and needs of His creation, is most qualified to outline criminal law for human communities. The Muslim believes that laws written by God, who is Wise and Just, hold the greatest benefit for both the individual and community.
The Muslim’s life is shaped by belief in One God, who sent the Quran to show individuals and communities the path to their maximum potential in physical, spiritual, social and material spheres. Islam is a holistic approach to life that does not separate the material and the spiritual – both are intertwined and both are important for our well-being. Therefore, in Islam, “illegal” and “immoral” are synonymous. The Quran outlines Islamic law and Prophet Muhammad provided a practical example of its teachings in spiritual, social, executive, legislative and judicial applications of life. The Muslim believes that following Islamic law ensures personal happiness and social harmony.
How Much Freedom?
If there was total freedom, there would be no law. The challenge of jurisprudence is to allow freedom while enforcing order. The purpose of laws should not be to curtail freedom but rather to protect freedom. Criminal law, therefore, should be related to peoples’ rights, which, in Islam are the right to life (existence and safety), wealth (ownership and security), lineage (knowledge of relatives), honor (protection of reputation), and intellect (the faculties of reason and judgment). Islamic law exists in order to protect these rights, with both individual liberties and social welfare being important; but when they conflict, then social welfare has precedence even if it limits some individual liberties.
People who live in any society are free to have their own personal beliefs and worship, but it is expected that they will exhibit lawful conduct in the community. Residents of Islamic societies are subject to the laws of that land, just as foreign residents in a Western country are subject to the laws of the land. Subjecting oneself to Islamic law when living among Muslims does not mean that one is being forced to become Muslim or leave his own religion. It only means that he is complying to the laws of acceptable conduct in the society. However, whether one is a Muslim or non-Muslim, citizen or resident, a complainant or victim, a man or a woman, rich or poor, the principle of justice applies equally in Islam. The Quran says, “Judge with justice” (4:58) and Muhammad said, “Justice is the basis of government.” In addition, a criminal is not exempt from the law because he acted with a noble intention – the law in Islam applies to actions, no matter how lofty the intention or purpose is.
There are different types of misconduct and penalties in Islamic law. Some misconduct has no penalty but requires repentance and self-reformation, examples of which are neglecting proscribed acts of worship (praying, fasting, etc.), maltreatment of parents, eating prohibited foods (such as carrion, predatory animals and pork), charging interest on loans, and dressing indecently. For some misconduct, there is a self-imposed penalty. For example, if one swears by God to do something and then breaks his promise, he should feed or clothe ten poor people or free a slave; if he is unable to do that, he should fast for three days (during daylight hours). Another example is backbiting, which is strongly criticized in the Quran and prophetic traditions. If one wishes to correct this misdeed, he should apologize to the person (if this would not further harm relations) and mention his good qualities to those who heard his backbiting. Although these misdeeds are prohibited in the Quran, they are less severe than the major crimes, which present potential harm to the community at large. Each of the major crimes is related to one or more of the major rights of citizens in Islam. The major crimes are murder, violent crimes such as rape, armed robbery and terrorist acts, theft, adultery, fornication, slander and intoxication. But the accused is considered innocent until proven guilty beyond any doubt, and is guaranteed a fair trial.
Following is a brief description of the major crimes and their penalties, which are to be applied only by the state when every condition of the crime is met. There is no place for vigilantes (taking the law into your own hands) in Islam. It must be stressed, however, that each case is unique, and the judge must carefully assess the circumstances of each crime, the evidence and the penalties to be applied. Only experts in Islamic law are qualified to pass judgments and enforce penalties.
- The penalty for premeditated murder is execution. However, monetary compensation is accepted if and only if the closest relatives of the victim allow the death penalty to be waived.
- For manslaughter (malicious or accidental), monetary compensation is to be paid unless the family of the victim waives the payment, granting forgiveness. The defendant should also fast for two consecutive months (during daylight hours).
- The penalty for violent crimes such as rape, armed robbery or terrorist acts is execution, or amputation of one hand and the opposite foot, or exile, depending on the physical and emotional severity of the crime. However, the following conditions must apply: confession from the criminal or two eye-witnesses, and the criminal must be mature and sane.
- The penalty for theft is amputation of one hand from the wrist, with the condition of a confession from the thief or two eye-witnesses. Also, the thief must be mature and sane, and the goods must have been stolen from a secure place. Exemptions for the penalty are allowed under one of the following conditions: the thief is an immediate family member of the owner, the thief is a partner in ownership, the thief is a victim of poverty, or the stolen goods are unlawful (such as drugs or pornography). Under these exemptions, lighter penalties apply.
- The penalty for adultery is stoning to death. However, the following conditions must apply: the adulterers must be mature, sane and married, and adultery was consensual. The punishment can be enforced if they confess or if four eye-witnesses who witnessed the same act of sexual intercourse (penetration), without doubt, agree on the details of the incident, and if the witnesses did not gather evidence through spying or invading people’s privacy. Exemptions are allowed if the accused gives a sworn statement declaring his or her innocence.
- The penalty for fornication is public flogging (100 lashes with a leather strap, not on the face or stomach, that are not so severe as to break the skin). This is applicable if the fornicator is mature, sane and unmarried, if fornication was committed voluntarily and after confession or the testimony of four eye-witnesses who witnessed the same act of sexual intercourse (penetration), without doubt and without spying. An exemption is allowed if the accused swears that s/he is innocent.
- Another major crime in Islam is slander, which is considered a false accusation of sexual misconduct. One is a slanderer if he accuses someone without bringing four eye-witnesses that agree on details of the same act of sexual intercourse. The penalty 80 lashes with a leather strap, and the rejection of his legal testimony for the rest of his life.
- The penalty for intoxication is a public flogging (80 lashes with a leather strap, away from the face and stomach, that do not break the skin). The drunkard must be mature and sane, must have confessed or have been reported by two eye-witnesses (who did not spy to obtain the evidence), and consumed the intoxicants voluntarily. The punishment is to be administered when the guilty is conscious, sober and healthy.
The punishments for the major crimes are to be administered publicly, which serves several purposes, such as notifying others of the criminal’s tendencies, upholding the importance of lawful conduct and the application of justice, presenting a deterrent to others and, most importantly, reforming the criminal, which is the ultimate goal. However, Prophet Muhammad advised avoiding the application of penalties: “Avert the infliction of the prescribed penalties as much as you can, and if there is any doubt, let a man go, for it is better for a judge to make a mistake in forgiving than to make a mistake in punishing.” (Tirmidhi 1011) For other minor crimes, penalties such as imprisonment, flogging, deportation and fines can be imposed by the state. However, fines are not a recommended penalty because they impose no burden on the wealthy.
The judge must also consider the extent to which the infrastructure of the Islamic society is in place, which would ensure that those who may be tempted to commit crimes have the means to address their needs in legal ways. For example, adultery is avoidable because divorce is allowed and can be obtained by either spouse. Stealing is also avoidable because there should be welfare systems in place to care for the needy. Therefore, in a true Islamic society, penalties are for those who are a clear danger to society, who commit crimes for greed or sport, or who are flagrantly indecent in public places.
The purpose of laws is to protect the rights of life, security, lineage, wealth, honor and intellect for all citizens. In communities where penalties are not enforced, murder, rape, drug addiction, violent crimes, theft, adultery and abortion are rampant. In the long run, Islamic criminal law benefits the community. As the Quran (2:179) says , “In the laws of punishment there is life for you [all], O you who understand.”
These punishments have restrictions on them that make them something very rare to carry out in a Muslim society. The stoning that occurred during the Prophet’s time came from people who confessed and insisted in their confession, and wanted to suffer the punishment of their sin in this life rather than to face it on the Day of Judgement.
Having severe punishments possible shows the seriousness of the offence, but the restrictions show that Allah does not intend our societies to go around chopping of hands and stoning people all the time. These situations are more theoretical than reality. When one gets into actual cases of adultry or theft, the details generally do not support such punishments and other punishments must be managed by the justice system. I am not a jurist, but I believe that some adaptations of procedure can be made today as well. In the Prophet’s time there was no prison system or means to hold people long term in jail. In times of famine, which occurred with regularity, just feeding someone in jail would often have been a burden on the society of the time.
So these issues are complex and need trained legal professionals in the society to create laws that respect the understanding of the Quran, but that are actually applicable in the cases that are brought to the courts.