Bacon has been quoted to have said: “Religio praecippum humanae societaties vinculum” (Religion is the most substantial bond of humanity)

Islam as monotheistic religion “remains exogenous as the primal ontology. We consider this primal ontology as the super-cardinal topology. Super-cardinal topology denotes the unbounded and open domain of the origin of knowledge under the principle of the monotheistic law characterizing organic inter-causal unity of knowledge and its induction of and by the generality and particulars of studies. From this primal origin emanate worldly knowledge-flows of the nature of organic unity of being and becoming. In every round of the evolutionary learning in unity of knowledge, the same primal ontology of monotheistic law is recalled and activated in the self-same discursive manner as of ijtihad and shura processes. By virtue of its completeness in the state of the unbounded and open nature of the super-cardinal domain, we also refer to the primal ontology as Stock of Knowledge because of its completeness.”

Islam favors humanities on two bases, firstly, because it appeals to human reason. The Quran attaches pivotal significance to individual rational choice and responsibility. “There is no coercion in religion. The truth stands out clear from Error”. “By the soul, and the order given it, He has inspired it to its wrong and to its good” 4. “To each is a goal to which he turns it. Then strive for what is good…”. “Say, ‘The Truth is from your Lord’, then believe who wills and deny who wills”. The emphasis here is not so much that ethical values are rational and scientific but that they are reasonable to be understood as such by humans. Since the level of understanding may differ from person to person and from community to community multiplicity of views is inevitable.

The second basis of pluralism is social acceptance of these values. This basis also regulates the dissent. The Qur’an calls good Ma‘ruf (well known) and evil Munkar (rejected), which points to the fact that normativity is based on social acceptance or rejection. The social dialectics develop the acceptable definition of ethical values.

The plurality of views in the Fiqh traditions is proverbial. The Hadith tradition questioned the authenticity of Fiqh traditions and described it as mere opinions ( ra’y ) as opposed to the Hadith which was based on scientific knowledge (‘ilm ). The Fiqh traditions produced more than nineteen schools, all of them recognizing each other’s legal validity. The multiplicity of views continues within the schools and is regarded as a blessing. The principle of legal reasoning ( ijtihad ) encourages difference of opinion considered religiously rewardable even in case of error. Adherence to these different schools of law is reflected in the diverse personal laws in Muslim societies.

A deliberately discussion on the Islamic criminal justice system is important for many reasons. First, like in the conventional system, crime is a public wrong thereby bringing laws relating thereto to the realm of the public. Islamic criminal law is therefore central to the entire Islamic legal system. Second, religio-political parties in a number of Muslim countries have increasingly been clamouring for the application of the Islamic criminal justice within their respective jurisdictions. Countries such as Saudi Arabia, Iran, Sudan, Pakistan, Nigeria and Brunei Darussalam apply the law in varying degrees. Third, the application of the law has wider implications. For instance, in an increasingly globalising world, it is worth asking how compatible the law is with international human rights treaties to which the Muslim countries are party. It is for these and other reasons that the Islamic criminal justice system became an important, and perhaps, the most ‘popular’ field of Islamic law nowadays.

This paper is an attempt at introducing an issue in Islamic criminal law relating to the theory of Criminal  punishment and pursuit justice. Thus, it’ll be divided into following points of discussion.

https://www.youtube.com/watch?v=qgLWcsbOD8k
CRIMINAL PUNISHMENT IN ISLAM

The body of law dealing with wrongs that are punishable by the state with the object of deterrence is known as criminal law. In the context of modern world today, “the practice of Islamic criminal law has often attracted fierce criticism and debate from across the globe. There appears to be an assumption, albeit arguably misguided, that punishments such as flogging and stoning to death are practices which Islam is ready to implement. It would be worth asking at the outset what the general consensus of the class is in this regard. Have their answer been influenced by the media? Has the interpretation of Islamic Law been distorted by leaders so as enable them political gain? Have the countries that have employed Islamic criminal law succeeded in terms of a reduced rate of crime? In order to address whether the critics of Islamic criminal law are justified in their claims or whether their arguments are flawed as a result of misconception, close examination of the law is required.”

1.The Meaning of Punishment 

According to Garland punishment is “the legal process whereby violators of criminal law are condemned and sanctioned in accordance with specified legal categories and procedures”.

Flew argues that punishment, in the sense of a sanction imposed for a criminal offense, consists of five elements:

1) It must involve an unpleasantness to the victim.

2) It must be for an offense, actual or supposed.

3) It must be of an offender, actual or supposed.

4) It must be the work of personal agencies; in other words, it must not be the natural consequence of an action.

5) It must be imposed by an authority or an institution against whose rules the offense has been committed. If this is not the case, then the act is not one of punishment but is simply a hostile act. Similarly, direct action by a person who has no special authority is not properly called punishment, and is more likely to be revenge or an act of hostility.

In addition to these five elements, Benn and Peters add that the unpleasantness should be an essential part of what is intended. The value of this definition of punishment resides in its presentation of punishment in terms of a system of rules, and that it distinguishes punishment from other kinds of unpleasantness.

Why should offenders be punished? This question might produce the following responses:

– They deserve to be punished.

– Punishment will stop them from committing further crimes.

– Punishment tells the victim that society disapproves of the harm that he or she has suffered.

– Punishment discourages others from doing the same thing.

– Punishment protects society from dangerous or dishonest people.

– Punishment allows an offender to make amends for the harm he or she has caused.

2. Retribution

Retribution is the theory that punishment is justified because it is deserved. Systems of retribution for crime have long existed, with the best known being the lex talionis of Biblical times, calling for “an eye for an eye, a tooth for a tooth, and a life for a life”.

Retributionists claim a moral link between punishment and guilt, and see punishment as a question of responsibility or accountability. Once society has decided upon a set of legal rules, the retributivist sees those rules as representing and reflecting the moral order. Society’s acceptance of legal rules means that the retributivist accepts the rules, whatever they may be; accepts that the rule makers are justified in their rule making; and claims that those who make the rules provide the moral climate under which others must live. Accordingly, retributivists cannot question the legitimacy of rules. They argue that retribution operates on a consensus model of society where the community, acting through a legal system of rules, acts “rightly,” and the criminal acts “wrongly”. It follows that the retributivist position makes no allowance for social change or social conditions, looking instead only to crime. Raising the issue of the social causes of crime or questioning the effectiveness of punishment are irrelevant considerations to a retributivist.

It has been suggested that in historical terms, the lex talionis did not operate as a demand for retribution. Instead, it set a limit on the nature of that retribution, and therefore prevented the imposition of excessive penalties in the course of acts of vengeance.

Retributivists believe that wrongdoers deserve to be punished and that the punishment imposed should be in proportion to the wrongdoing the offender committed. In contrast to utilitarians, retributivists focus their line of reasoning on the offender’s just desert (a proportionate punishment) and not on the beneficial consequences of punishment.

Retributivists ask questions such as “Why do offenders deserve to be punished?” and “How are their just deserts to be calculated and translated into actual sentences?”

Retributive theories of punishment argue that punishment should be imposed for past crimes and that it should be appropriate to the nature of the crime committed; that is, the severity of the punishment should be commensurate with the seriousness of the crime.

Sometimes, retributive punishment is confused with notions of revenge. Critics of retributionist theories of punishment argue that retribution is basically nothing more than vengeance.

3. Just Deserts

Up until about 1970, criminologists generally thought of retribution as vengeance. During the 1970s, criminologists reconsidered the idea of retribution and advanced new formulations. By the 1980s, the new retributionist theory of just deserts had become influential. Importantly, the new thinking indicated that although there should continue to be treatment programs, a defendant would not ordinarily be incarcerated in order to receive treatment. Influential writings such as Struggle for Justice (American Friends Service Committee 1971) and Doing Justice (von Hirsch 1976), which were written in the aftermath of the riot at Attica Prison in 1971, elaborated on the new retributivism in philosophical and civil libertarian terms. This theory gained support as a reaction against the perceived unfairness of systems that favored treatment that had developed over the first half of the 20th century, especially the use of the indeterminate sentence. This form of sentence vested the power of determining the date of release to a parole board, and signifies the practice of individualized sentencing. The latter attempted to sentence according to the treatment needs of the offender, rather than the seriousness of the offense. One of the criticisms of indeterminate sentencing was the fact that the sentencing courts had a wide discretion in choosing a sentence, and although they tended to adopt tariffs for classes of crime, individual judges could depart from them without providing reasons.

Along with the just deserts movement, many states and federal sentencing authorities repealed indeterminate sentencing laws with the aim of reducing judicial discretion in sentencing and promoting consistency and certainty, as well as a set of standards that would help in the process of deciding the sentence.

The fundamental difficulty with deserts theory is that it lacks any principle that determines a properly commensurate sentence. Deserts are determined by a scale of punishment that fixes the most severe penalty. This might be imprisonment or death. It then determines ordinally proportionate penalties for lesser offenses. It follows that if imprisonment is the most severe penalty, then proportionality will provide shorter terms of imprisonment and noncustodial penalties for lesser offenses. If the term of imprisonment for severe offenses is moderate, then short sentences and penalties such as probation will soon be reached on the scale of seriousness. If the penalty for the most serious offenses is death, it follows that long terms of imprisonment will be proportionate penalties for less serious offenses.

4. Rehabilitation

Retribution and deterrence involve a process of thinking that proceeds from the crime to the punishment. However, rehabilitation is a more complex notion involving an examination of the offense and the criminal, and a concern for the criminal’s social background and punishment. Further, those in favor of rehabilitation theories acknowledge the possibility of additional problems developing during the offender’s sentence or treatment that may be unconnected with the offense and which may require an offender to spend additional periods in treatment or confinement.

Utilitarian theory argues that punishment should have reformative or rehabilitative effects on the offender. The offender is considered reformed because the result of punishment is a change in the offender’s values so that he or she will refrain from committing further offenses, now believing such conduct to be wrong. This change can be distinguished from simply abstaining from criminal acts due to the fear of being caught and punished again; this amounts to deterrence, not reformation or rehabilitation by punishment. Proponents of rehabilitation in punishment argue that punishment should be tailored to fit the offender and his or her needs, rather than fitting the offense.

Underpinning this notion is the view that offenders ought to be rehabilitated or reformed so they will not reoffend, and that society ought to provide treatment to an offender. Rehabilitationist theory regards crime as the symptom of a social disease and sees the aim of rehabilitation as curing that disease through treatment.

In essence, the rehabilitative philosophy denies any connection between guilt and punishment. Some scholars outline the strengths of the rehabilitation position as being its emphasis on the personal lives of offenders, its treatment of people as individuals, and its capacity to produce new thinking in an otherwise rigid penal system. They suggest its weaknesses include an unwarranted assumption that crime is related to disease and that social experts can diagnose that condition; treatment programs are open-ended and do not relate to the offense or to other defined criteria; and the fact that the offender, not being seen as fully responsible for his or her actions, is capable of manipulating the treatment to serve his or her own interests. In addition, rehabilitation theory tends to see crime as predetermined by social circumstances rather than as a matter of choice by the offender. This, it is said, denies the agency of the offender and arguably treats an offender in a patronizing, infantilizing way.

The demise of rehabilitation as a theory of punishment began in the 1970s and was the result of a complex set of factors, one of which was no treatment program works very successfully in preventing reoffending, and that no program works better than any other.

5. Incapacitation

Penal practice has always tried to estimate the risk that individual offenders might commit crimes in the future and has tried to shape penal controls to prevent such crimes from happening.

Through the incapacitative approach, offenders are placed in custody, usually for long periods of time, to protect the public from the chance of future offending. In utilitarian theory, incapacitation is seen as a good consequence of punishment because, when serving his or her sentence, the offender is removed from society and is therefore unable to commit further offenses. This applies regardless of whether the offender is deterred, reformed, or rehabilitated through the punishment he or she is given. Incapacity may also be present in other forms of punishment such as parole, in the sense that although the offender is free from incarceration, he or she is placed under supervision, which may restrict his or her opportunity to commit crime.

Some criminologists claim that certain offenders commit crimes at very high rates, and that applying a policy of selective incapacitation aimed at these “career criminals” will assist with the aims of crime prevention.

There are two basic objections to following a policy of incapacitation based on selecting offenders for this kind of punishment. The first is that predicting criminal dangerousness is problematic and will inevitably mean that a number of persons will suffer incapacitation who would not have committed further crimes if left free, because, given the inaccuracies of prediction, it is necessary to lock up or incapacitate large numbers of non-dangerous offenders so we can ensure we incapacitate dangerous offenders. Second, there is the moral objection that it is wrong in principle to punish offenders based on a prediction of their future conduct; that is, they ought to be punished for what they have done and not for what they might do in the future.

Some of the problems inherent in incapacitative sentencing include the following:

– it works only if we lock up those who would have committed further offenses if they had been left free;

– if those we lock up are not immediately replaced by new recruits; or

– if the crimes committed after release are not so frequent or serious so as to negate the effects of the crimes prevented through incapacitative sentencing.

Ethical questions that arise from the sentencing rationale of incapacitation include:

– Is it ethical to punish persons for crimes not yet committed?

– Is it ethical to base punishment on inaccurate predictions?

– Is it ethical to punish a repeat offender for a past crime he or she committed and has already been punished for?

The notion of incapacitation is reflected in such punishment policies as three-strikes legislation, mandatory minimum sentences, and truth in sentencing.

6 Restorative Justice

Braithwaite argues that restorative justice has been “the dominant model of criminal justice throughout most of human history for all the world’s peoples,” and that it is grounded in traditions from ancient Greek, Arab, and Roman civilizations and in Hindu, Buddhist, and Confucian traditions.

Braithwaite emphasizes that restorative justice means restoring victims as well as offenders and the community. In addition to restoring lost property or personal injury, restoration means bringing back a sense of security. He points to the shame and disempowerment suffered by victims of crime. He observes that Western legal systems generally fail to incorporate victims’ voices because the justice system often excludes their participation. Restoring harmony based on an acceptance that justice has been done is, in his view, inadequate.

Essentially, restorative justice proponents emphasize the need to support both victims and offenders, and see social relationships as a rehabilitative vehicle aimed at providing formal and informal social support and control for offenders. Rather than separating out the offender as a subject for rehabilitation, restorative justice sees social support and social control of offenders as the means to rehabilitation.

In considering the nature of a restorative justice approach to offenders, it is useful to note the three core principles suggested by some scholars.