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Capital Punishment in Islam

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بسم الله الرحمن الرحيم 

 

Introduction:

Unfortunately there is no shortage of criticism of  Islamic laws and even more unfortunate is that many Muslims get carried away by the tide of doubts raised by media propaganda. We who (Alhamdulillah) believe in Allah ta'ala  and in His qualities of being the Most Merciful and the Most Wise, know that His decrees are filled with mercy, wisdom and reason whether people can perceive them or not. We are not bound to understand and comprehend every order and decree of Allah ta'ala; we are merely bound to submit our will to the will of Allah ta'ala.

Regarding the wisdom behind the commands of Allah ta'ala see the explanation by Shaykh Ashraf Ali Thanwi (Raheemahullah) HERE

 

We will insha-allah compile information and articles regarding the concept of capital punishment in Islam:

  • the wisdom and objective behind it
  • the stringent conditions which need to be met before it can be implemented,
  • the concept of averting it if at all possible and finally
  • capital punishment in the Bible and in non-Muslim countries

 

Table of Contents

1. When is Capital Punishment Permissible in Islam?

2. Wisdom behind Capital Punishment

3. Imam should try to avert the legal punishment

4. Capital Punishment for Adultery

5. Capital Punishment for Apostasy

6. Capital Punishment for Murder

7. Capital Punishment in the Old Testament

8. Conceal your Sin

9. Allah loves to forgive

10. Sources and Acknowledgments

11. Further reading

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Quotes from the articles in this topic

Objective of capital punishment

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One should always keep in mind the objective and spirit of Shariah concerning the various legal punishments. The idea is not to enforce the punishment and make people suffer; rather the objective is to prevent harm, corruption and immorality in the society. Thus, legal punishments act as deterrents more than actually get people punished.

 

Hadith on averting legal punishment

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The Messenger of Allāh (sallalāhu `alayhi wa sallam) said: “Avert the legal penalties from the Muslims as much as possible, if he has a way out then leave him to his way, for if the Imam (i.e. Judge) makes a mistake in forgiving it, it would be better than making a mistake in punishment.” Tirmidhī,

 

Moral values are sacred

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A person is condemned to death because he has committed an unforgivable crime. A country is based on certain entrenched values. There is no compromise on such values.



Rebellion against man is punishable by death. What about rebellion against the Creator?

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The penalty of treason in many countries is death. If death is the consequence of rebelling against man made laws which are deficient, then shouldn’t rebellion against the laws of Allah which are perfect, be viewed more seriously.

 

Stringent conditions have to be met for capital punishment to be implemented

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There are detailed and stringent conditions for the legal punishment of fornication and adultery to be enforced upon an individual. If these conditions are not met, the punishment will not be enforced.

 

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The capital punishment for the crime committed is very severe like the crime itself. Capital punishment is decreed by Divine law and its application must be carefully regulated to maintain the sanctity of the law. If capital punishment is not carefully regulated, it could be manipulated by human beings and the sanctity of the law will diminish. When capital punishment is applied and all doubts surrounding the crime are removed, it becomes clear that the punishment is pure, unadulterated and fitting the severity of the crime. Such an attitude is in keeping with the sanctity of Divine law.

 

When is Capital Punishment Permissible

The Prophet (peace and blessings of Allaah be upon him) said: “It is not permissible (to shed) the blood of a Muslim who bears witness that there is no god but Allaah and that I am the Messenger of Allaah, except in three cases: a married adulterer, a soul for a soul, or one who leaves the religion and splits from the jamaa’ah.”  

Narrated by al-Bukhaari, 6484; Muslim, 1676.

 

1. The apostate: The apostate is one who disbelieves after being a Muslim.

  • Prophet (peace and blessings of Allaah be upon him) said: “Whoever changes his religion, execute him.” Narrated by al-Bukhaari, 6524. 

 

2. The married adulterer: Al-muhsan or the married person here means one who got married and had intercourse with his wife in the vagina, in a legitimate marriage in which both parties are free, of sound mind and adults.

  • The Prophet (peace and blessings of Allaah be upon him) said: “Learn from me. Allaah has given them a way out. If an unmarried person commits fornication with an unmarried person, (the punishment is) one hundred lashes and exile for one year. If a married person commits adultery with a married person, (the punishment is) one hundred lashes and stoning.” (Narrated by Muslim, 1690). 

 

3. The murderer: (one who kills deliberately). He is to be killed in retaliation (qisaas) unless the victim’s next of kin let him off or agree to accept the diyah (blood money).

  • Allaah says (interpretation of the meaning): “O you who believe! Al-Qisaas (the Law of Equality in punishment) is prescribed for you in case of murder: the free for the free, the slave for the slave, and the female for the female. But if the killer is forgiven by the brother (or the relatives) of the killed against blood money, then adhering to it with fairness and payment of the blood money to the heir should be made in fairness. This is an alleviation and a mercy from your Lord. So after this whoever transgresses the limits (i.e. kills the killer after taking the blood money), he shall have a painful torment” [al-Baqarah 2:178]

 

  • “And there is (a saving of) life for you in Al-Qisaas (the Law of Equality in punishment), O men of understanding, that you may become Al-Muttaqoon (the pious)” [al-Baqarah 2:179] 

 

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Wisdom behind Capital Punishment

Shaykh Ashraf Ali Thanwi (Raheemahullah) says in "The wisdom behind the commands of Islam":

"In order that human beings observe integrity and self-restraint and thus live in comfort and peace, Allah ta'ala has imposed on them certain laws, rules and regulation. By obeying the laws and the rules, they will not oppress one another and not exceed limits in mutual dealings. They will take a lesson on witnessing punishment awarded to anyone who commits excess."

 

It is similar to the rules and regulations on the roads. The consequences of everyone drove according to their wishes  without observing these rules and regulations can be imagined by every individual. There is, in every religion and community a moral code by which people live and every country has laws to safeguard its citizens. Flagrant violation of the moral code or the laws of a country without punishment leads to anarchy and chaos. The more severe the crime, the more severe the punishment.

One should always keep in mind the objective and spirit of Shariah concerning the various legal punishments. The idea is not to enforce the punishment and make people suffer; rather the objective is to prevent harm, corruption and immorality in the society. Thus, legal punishments act as deterrents more than actually get people punished.

  • Allah Most High says: “In the law of retaliation there is (saving of) life to you, O you men of understanding.” (Surah al-Baqarah, V: 179)

An example of this which comes to mind is that we see speed cameras being placed on many roads and streets (especially here in the UK!) in order to deter people from speeding in their vehicles. The idea behind these speed cameras is not to catch people speeding, rather to prevent people from speeding and causing accidents. If the aim was to catch people speeding, there would be no warning signs indicating that a camera is present. However, we see that whenever a speed camera is placed, many warnings are given that “beware this road has a speed camera”. Many of the times, the camera is not even in operation, hence, the idea is to stop people speeding rather than catch and punish them.

The same is with the various legal punishments prescribed by Shariah, in that they are prescribed to prevent people from committing unlawful actions and corrupting the society, yet the rules and conditions for a legal punishment to be enforced are so stringent that very rarely would an individual be punished. The legal punishment is considered a deterrent, but if an individual did involve him/herself in some unlawful activity, the objective now is not to get the individual punished rather to save him/her from the punishment.

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Imam should try to avert the legal punishment

It is important to understand that the objective of Sharī`ah is not to apply capital punishment whenever possible; rather, it is to ward off such punishments even if it is due to a mere doubt. Consider the following hadīth:

 

قَالَ رَسُولُ اللهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ: ادْرَءُوا الحُدُودَ عَنِ الْمُسْلِمِينَ مَا اسْتَطَعْتُمْ، فَإِنْ كَانَ لَهُ مَخْرَجٌ فَخَلُّوا سَبِيلَهُ، فَإِنَّ الإِمَامَ أَنْ يُخْطِئَ فِي العَفْوِ خَيْرٌ مِنْ أَنْ يُخْطِئَ فِي العُقُوبَةِ 

 

The Messenger of Allāh (sallalāhu `alayhi wa sallam) said: “Avert the legal penalties from the Muslims as much as possible, if he has a way out then leave him to his way, for if the Imam (i.e. Judge) makes a mistake in forgiving it, it would be better than making a mistake in punishment.” Tirmidhī, 1424, The Book of Legal Punishments

This will become more evident with the following incident that took place in the time of the Messenger of Allah (Allah bless him & give him peace):

  • Sayyiduna Abu Hurayra (Allah be pleased with him) narrates: “A man from amongst the people came to the Messenger of Allah (Allah bless him & give him peace) while he (the Messenger of Allah) was sitting in the Masjid, and addressed him, saying: “O Messenger of Allah! I have committed illegal sexual intercourse.” The Messenger of Allah (Allah bless him & give him peace) turned his face away from him. The man came to that side to which the Messenger of Allah (Allah bless him & give him peace) had turned his face, and said: “O Messenger of Allah! I have committed illegal intercourse.” The Messenger of Allah (Allah bless him & give him peace) turned his face to the other side, and the man came to that side. When he confessed four times, the Messenger of Allah (Allah bless him & give him peace) called him and said: “Are you insane?” He said: “No, O Messenger of Allah!” The Messenger of Allah (Allah bless him & give him peace) said: “Are you married?” He said: “Yes, O Messenger of Allah!” The Messenger of Allah (Allah bless him & give him peace) said (to the people): “Take him away and stone him to death.” (Sahih al-Bukhari, no: 6439)

The above incident shows the importance of trying to avert a legal punishment as much as possible. The man came and confessed to the Messenger of Allah (Allah bless him & give him peace) that he had committed unlawful sexual intercourse, yet the Messenger of Allah (Allah bless him & give him peace) ignored him, in order that he may change his mind.

  • Similarly, Sayyiduna Abd Allah ibn Abbas (Allah be pleased with him) narrates that When Ma’iz ibn Malik came to the Messenger of Allah (and confessed that he had committed adultery), the Messenger of Allah (Allah bless him & give him peace) said to him: “Probably you have only kissed (the woman), or touched, or looked at her?” He said: “No, O Messenger of Allah!” The Messenger of Allah (Allah bless him & give him peace), using no euphemism, said: “Did you have sexual intercourse with her?” The narrator said: At that moment, (i.e. after he confessed that he had sexual intercourse), the Messenger of Allah (Allah bless him & give him peace) ordered that he be stoned.” (Sahih al-Bukhari, no: 6438)

This famous incident of Ma’iz ibn Malik also gives the same message, in that the Imam should try his best to avoid the legal punishment. This is the reason why it is recommended to say to the one who confesses committing fornication that "You may only have touched, you may only have kissed, are you sure you had sex, think again properly of what you are saying and think of the consequences of your confession, and other such things." 

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Capital Punishment for Adultery

 

Fornication (zina) and that which leads to fornication is completely unlawful and considered a major sin. The Qur’an and Sunnah are quite clear about this.

Allah Most High says:

“Do not come (even) near to adultery, for it is a shameful (deed) and an evil, opening the road to other evils.” (Surah al-Isra, 32)

Thus, fornication and whatever that leads to it, such as touching, kissing, embracing, informal interaction are all considered to be major sins, hence must be avoided at all times.

As far as the Islamic legal punishment for fornication is concerned, the Hanafi jurist (faqih), Imam al-Mawsili (Allah have mercy on him) states:

“It (legal punishment) is established by evidence and confession. Evidence is that four people give testimony against a man and woman that they committed fornication. When they testify (in the courts), the judge (qadhi) will inquire from the witnesses the particulars and details of what took place, the place of incident, the time of incident, and the identity of the woman involved. When they give details of all of this and they state that the woman was unlawful upon the man in every way, and that they testify the observing of sexual intercourse taking place like they see a Kohl needle entering the Kohl bottle, and the four witnesses are considered upright both privately and publicly, then the judge will give the order for the legal punishment to be enforced upon the perpetrators.” (See: al-Ikhtiyar li ta’lil al-Mukhtar, 2/312-313)

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We can see from the above text (and other such texts in the books of Fiqh) that there are detailed and stringent conditions for the legal punishment of fornication and adultery to be enforced upon an individual. If these conditions are not met, the punishment will not be enforced.

One should always keep in mind the objective and spirit of Shariah concerning the various legal punishments.

Quote

The idea is not to enforce the punishment and make people suffer; rather the objective is to prevent harm, corruption and immorality in the society. Thus, legal punishments act as deterrents more than actually get people punished.

 

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The legal punishment is considered a deterrent, but if an individual did involve him/herself in some unlawful activity, the objective now is not to get the individual punished rather to save him/her from the punishment.

Sayyiduna Abd Allah ibn Abbas (Allah be pleased with him) narrates that When Ma’iz ibn Malik came to the Messenger of Allah (and confessed that he had committed adultery), the Messenger of Allah (Allah bless him & give him peace) said to him: “Probably you have only kissed (the woman), or touched, or looked at her?” He said: “No, O Messenger of Allah!” The Messenger of Allah (Allah bless him & give him peace), using no euphemism, said: “Did you have sexual intercourse with her?” The narrator said: At that moment, (i.e. after he confessed that he had sexual intercourse), the Messenger of Allah (Allah bless him & give him peace) ordered that he be stoned.” (Sahih al-Bukhari, no: 6438)

This famous incident of Ma’iz ibn Malik also gives the same message, in that the Imam should try his best to avoid the legal punishment. This is the reason why it is recommended to say to the one who confesses committing fornication that “You may only have touched, you may only have kissed, are you sure you had sex, think again properly of what you are saying and think of the consequences of your confession, and other such things.

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This (trying to avert a legal punishment) has been explicitly mentioned in one Hadith. Sayyida A’isha (Allah be pleased with her) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “Keep the Muslims away from punishments as much as possible. If there is any way out for an offender to escape punishment, acquit him. It is better for a judge to make an error in acquittal than in conviction.” (Sunan Tirmidhi, no: 1424)

Due to the forgoing, the Fuqaha have laid down (based on the guidelines of the Qur’an and Sunnah) certain strict rules and conditions in order for a punishment to be established or enforced. These strict conditions can be seen in all of the various penalties that have been imposed. The following are certain rules and conditions for the punishment of committing adultery to be enforced, as mentioned in the books of Hanafi jurisprudence:

1) It is actual vaginal sexual intercourse (and not anal or oral intercourse) that takes place between a man and a woman.

2) The man and woman involved in this unlawful sexual intercourse are not married; neither is the woman a slave-girl of the man.

3) It is proven by four people testifying that they clearly observed the couple engaged in unlawful sexual intercourse without any doubt or ambiguity. They are able to say that they saw their private parts meet like the Kohl needle entering the Kohl bottle. The judge would ask them all the various details concerning the time and location of the incident, and who were the people involved and other such matters, in order to remove any doubt.

4) If the four witnesses take back their testimony before the actual punishment is enforced, then the punishment will be abandoned, and they (witnesses) will be punished for the crime of false accusation.

5) The witnesses are not allowed to delay their testimony from the time of the incident to the time of testifying. If they delayed testifying in the courts, the punishment will not be enforced, unless they were very distant from the Imam hence the delay was due to them travelling to the Imam.

6) The punishment of adultery is also proven if the perpetrator him/herself confesses to be guilty of the crime. He/she must be sane, mature (baligh) and must confess four separate times in four separate sessions that the crime was committed. The Imam will try to wave away the punishment as much as possible by saying to the confessor that “you may have only touched or kissed” and other such statements. The Imam will also inquire about the various details of the incident, and when the confessor explains everything without leaving any doubt or ambiguity, the punishment will be enforced.

7) If the confessor takes back his words before the punishment his enforced or during the punishment, he/she will be released and set free. (See: al-Ikhtiyar li ta’lil al-Mukhtar, 2/311-316 & other major Hanafi Fiqh references)

The legal punishment:

If the crime of fornication is carried out by an individual who is sane, mature, Muslim and is married to a spouse who is also sane, mature, Muslim, and that their marriage is consummated, then the legal punishment is that he/she will be stoned to death (rajm). The Imam, witnesses and other Muslims would take part in the stoning. If the witnesses refuse to take part in stoning the perpetrator, the punishment will be dropped, as this would be considered a sign of them taking back their testimony.

If the crime of fornication is carried out by an individual who does not qualify to be in the above category, then the punishment is that he/she will be given 100 lashes. These whips and lashes will be spread over the body, avoiding the head, face and the private parts. A pregnant woman will not be whipped until she gives birth to her child and after her post natal bleeding (nifas). However, if she is to be stoned, then this may be carried out straight after giving birth.

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Capital Punishment for Apostasy

Apostasy [ar Ridda] is to regress from the truth to that which is false, to fall back from guidance into misguidance and from illumination and blessings to darkness and evil. It is nullification of one’s faith. The literal definition of apostasy (ar-Riddal) is to retract from something and to withdraw from it for something else. It is the worst type of unbelief and is ruled as the most repugnant. It destroys the rewards of one’s actions from the moment one regresses from the truth

 

According to the Sacred Law, apostasy is the intent to sever the continuance of Islam or to utter a word of disbelief or perform a certain action regardless of whether it is an action or saying of belittlement, pride or belief.

Allah says [If you ask them (about their mockery of you and the Quran while they were travelling with you to Tabuk), they will say: “We were only joking and playing around.” Say, “Would you make a mockery of Allah and of His signs and of His Messenger?” Do not try to excuse yourselves. You have disbelieved after having believed. If We pardon one group of you (due to their sincerity and repentance) We will punish another group for being evildoers].

 

The apostate therefore is the one who rejects the existence of the Creator, or rejects the existence of the Prophet or belies him. Likewise, declaring something forbidden as lawful is disbelief by consensus, such as adultery, and drinking alcohol. Equally, to forbid what Allah has made lawful holds the same ruling, such as trade, and marriage. Furthermore, to reject what is absolutely agreed upon by consensus, such as the five daily prayer constitutes disbelief. To resolve oneself to disbelief or retract from what is necessarily known amounts to disbelief. Examples include: to intentionally belittle that which is clearly acknowledged in Islam, such as to deliberately discard a mus-haf in filth.

 

The Repentance of An Apostate

The repentance of an apostate whether male or female is necessary according to the majority of scholars and is recommended according to the Hanafis. One is to be asked to repent three times before being killed on the basis of the following proof:

Abu Musa sent a man to Umar. Umar asked him, “Is there any recent news?” He said, “Yes; a man disbelieved afterembracing Islam.” He said, “What did you do with him?” He said, “We brought him near and cut his throat.” Umar said, “Did you imprison him for three days? And feed him a loaf of bread each day? And request that he repent on the possibility that he may repent and return to the command of Allah? Umar then said, “By Allah, I did participate nor order such a thing and I am not pleased with what you have informed me.” (Muwatta of Imam Malik).

 

Why are Apostates killed?

An apostate is killed simply because it is an order of the Sharī’ah.  We do not have any authority in questioning the law of Allah.  Allah Ta’ālā is the All-Wise.  The wisdoms and benefits behind His every ruling are unfathomable by our feeble minds.

Islam is undeniably a religion of peace yet it is also a religion of submission.Allah Ta’ala in His infinite knowledge and wisdom knows why He legislates certain laws. It is contrary to the servitude, subjugation and trust of a Muslim to question the wisdom or logic of Allah Ta’ala laws. Furthermore, being a religion of peace does not mean being a religion that tolerates iniquity and wickedness. If being a religion of peace means overlooking evils and vice for the ease and comfort of the perpetrator, of what benefit would the laws of religion serve? Even the most modern and liberal of countries have laws that govern the iniquity and disobedience of its citizens.

Examples of Federal capital statutes (death sentences) for non-murder crimes:

Espionage (18 U.S.C. 794)

Treason. (18 U.S.C. 2381)

Trafficking in large quantities of drugs (18 U.S.C. 3591(b))

Attempting, authorizing or advising the killing of any officer, juror,or witness in cases involving a Continuing Criminal Enterprise, regardless of whether such killing actually occurs. (18 U.S.C. 3591(b)(2))

One simple example of this is the act of treason. A person can be executed for leaking domestic information to another country. Why is this act not considered extreme and fanatical? Why is the country that perpetrates such acts not considered radical? Shouldn’t these countries also be peaceful, forgiving and understanding? The reality of the matter is that rules and regulations are legislated to maintain law and order in society.

For some criminal convictions where the death penalty is carried out are:

The United States of America

China

Japan

Taiwan

Thailand

Jamaica

India [1]

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A person is condemned to death because he has committed an unforgivable crime.  A country is based on certain entrenched values.  There is no compromise on such values.

One who opposes these values is convicted of treason.  The penalty of treason in many countries is death.  If death is the consequence of rebelling against man made laws which are deficient, then shouldn’t rebellion against the laws of Allah which are perfect be viewed more seriously.

[1] https://death.rdsecure.org/article.php?id=81

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Capital Punishment for Murder

Qisas

Allaah, may He be exalted, says (interpretation of the meaning): 

“O you who believe! Al-Qisaas (the Law of Equality in punishment) is prescribed for you in case of murder: the free for the free, the slave for the slave, and the female for the female. But if the killer is forgiven by the brother (or the relatives) of the killed against blood money, then adhering to it with fairness and payment of the blood money to the heir should be made in fairness. This is an alleviation and a mercy from your Lord. So after this whoever transgresses the limits (i.e. kills the killer after taking the blood money), he shall have a painful torment” [al-Baqarah 2:178]. 

 

Qisas is an Arabic term which means “Legal Retaliation”, and follows the principle of an eye for an eye, a nose for a nose. A perpetrator of the crime is punished with the same injury that he caused to the victim. If the criminal killed the victim, then he is killed. If he cut off or injured a limb of the victim, then his own limb will be cut off or injured without killing the criminal.

This is understood from the following verse of the Quran:

 

"And We ordained therein (Torah) for them (the Bani Israa’eel): Life for life, eye foreye, nose for nose, ear for ear, tooth for tooth and wounds equal for equal. But if anyone remits the retaliation by way of charity, (by forgiving the attacker and waiving the Qisas) it shall be for him an expiation. And whosoever does not judge by that which Allah has revealed, such are the Zalimun (oppressors and wrongdoers.)" [al-Maa’idah 5:45]

 

The issue of Qisas is referred to an Islamic court where the Qadhi (Muslim Judge) will analyse the situation and issue an appropriate decree.

 

Qisaas by killing the killer can only be in cases of deliberate killing, according to scholarly consensus. Allaah says (interpretation of the meaning):  

 

  • “And whoever is killed wrongfully (Mazlooman intentionally with hostility and oppression and not by mistake), We have given his heir the authority [to demand Qisaas, __Law of Equality in punishment __or to forgive, or to take Diyah (blood money)]. But let him not exceed limits in the matter of taking life (i.e. he should not kill except the killer)” [al-Isra’ 17:33] 

 

  • “Al-Qisaas (the Law of Equality in punishment) is prescribed for you in case of murder” [al-Baqarah 2:178] 

 

  • “And there is (a saving of) life for you in Al-Qisaas” [al-Baqarah 2:179] 

 

What is meant – and Allaah knows best – is that the requirement of qisaas deters the one who wants to kill from doing so, out of compassion towards himself so that he will not be killed, and so that the one whom he wanted to kill will remain alive. And it was said that the killer would generate enmity between himself and the tribe of the one whom he killed, so he wants to kill them for fear of them and they want to kill him and his tribe in revenge. If he is executed as a punishment according to sharee’ah, that will prevent the reason for fighting between the two tribes. 

 

The Prophet (peace and blessings of Allaah be upon him) said: “If a person’s relative is killed, he has the choice of two options: either (the killer) may be killed or the fidyah (ransom, blood money) may be paid.” 

 

There was no difference of opinion among the scholars that it is valid for the heirs of the victim to forego qisaas and accept the diyah. This is what is indicated by the hadith quoted above. 

 

In that case, the killer may be set free and he should be obliged to pay the diyah. 

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Capital Punishment in the Old Testament

 

Kill those who commit adultery

Leviticus 20:10 “If a man commits adultery with another man’s wife—with the wife of his neighbor—both the adulterer and the adulteress are to be put to death."

Deuteronomy 22:22 “If a man is found sleeping with another man’s wife, both the man who slept with her and the woman must die. You must purge the evil from Israel."

 

Stone both to death when they commit fornication

Deuteronomy 22:23 “If a man happens to meet in a town a virgin pledged to be married and he sleeps with her, you shall take both of them to the gate of that town and stone them to death—the young woman because she was in a town and did not scream for help, and the man because he violated another man’s wife. You must purge the evil from among you."

 

Murderer should be killed

Exodus 21:12 “Whoever strikes a man so that he dies shall be put to death."

 

Law of Retaliation

Leviticus 24:17-22 “Whoever takes a human life shall surely be put to death. Whoever takes an animal's life shall make it good, life for life. If anyone injures his neighbor, as he has done it shall be done to him, fracture for fracture, eye for eye, tooth for tooth; whatever injury he has given a person shall be given to him. Whoever kills an animal shall make it good, and whoever kills a person shall be put to death."

 

Kill the apostate

Chronicles 15:13 "But that whoever would not seek the Lord, the God of Israel, should be put to death, whether young or old, man or woman." 

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Conceal your sin

 

A general principle in Islamic law is that it is sinful to reveal one’s past sins. One must keep them concealed, as sincere repentance wipes them out and so it is as if the person never committed them.

 

It was narrated from ‘Abd-Allaah ibn ‘Umar (may Allaah be pleased with him) that the Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Avoid these sins that Allaah has forbidden, but whoever does any of them, let him conceal himself with the concealment of Allaah and repent to Allaah, for whoever tells us of what he has done, we will carry out (the punishment prescribed in) the Book of Allaah on him.” 

 

As Allah has concealed you, you must also conceal yourself and do not breach the concealment of Allah. Al-Bukhari and Muslim narrated that Abu Hurayrah (رضي الله عنه) said: I heard the Messenger of Allah (صلى الله عليه و سلم) say: “All of my ummah will be fine except those who commit sin openly, and it is part of committing sin openly for a man to do something at night, then in the morning when his Lord has concealed him he says: O So and so, I did such and such last night, when his Lord had concealed him all night, but in the morning he discloses that which Allah had concealed for him.”

 

One should remember that it is not necessary in order for one’s sin to be forgiven that he/she receives the legal punishment (hadd) for the sin committed. The reason being is that one is not obliged to confess that he/she committed adultery; hence one may keep the sin hidden and not inform the Islamic judge about it.

In fact, it is stated that it is more preferable for him to fully repent and keep the sin concealed and not inform the Islamic judge about it himself (as explained by Ibn Abidin in Radd al-Muhtar 3:140). 

 

Imam ash-Shafi‘i (may Allah have mercy on him) said: "We prefer for the one who has committed a sin that is deserving of a hadd punishment toconceal the matter and to fear Allah, may He be glorified and exalted, and not go back to disobeying Allah, for Allah, may He be glorified and exalted, accepts the repentance of His slaves."

 

Muslim narrated from Abu Hurayrah (رضي الله عنه) that the Prophet (صلى الله عليه و سلم) said: “Allah does not conceal a person in this world but Allah will conceal him on the Day of Resurrection.”

 

Also the various Islamic legal punishments (hudud) are only carried out in an Islamic state (dar al-Islam) by the Imam, thus repenting to Allah Almighty will be sufficient.

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Allah Loves to Forgive

 

>>If an individual was involved in the sin of adultery then he should make sincere repentance. Allah states in the Quran, “…Turn to Allah in repentance, all of you, about your past mistakes, so that you may attain salvation.”(Surah Nur: 31)

 

>>Allah Most High told us in the Qur'an:

 

قُلۡ يَـٰعِبَادِىَ ٱلَّذِينَ أَسۡرَفُواْ عَلَىٰٓ أَنفُسِهِمۡ لَا تَقۡنَطُواْ مِن رَّحۡمَةِ ٱللَّهِ‌ۚ إِنَّ ٱللَّهَ يَغۡفِرُ ٱلذُّنُوبَ جَمِيعًا‌ۚ إِنَّهُ ۥ هُوَ ٱلۡغَفُورُ ٱلرَّحِيمُ

 

"Say, O my servants who have wronged themselves: despair not of Allah's mercy; surely Allah forgives all sins; surely, He is Most Merciful and Compassionate."[Qur'an, 39:53]

 

Commentators tell us that this verse is the most hope-inspiring verse in the Qur'an (arja ayatin fi kitabillah).  Reading this verse should cause every believer to rejoice.

 

>>The gate of repentance is open to His slaves, until the sun rises from the west. The Prophet (peace and blessings of Allaah be upon him) said: “Allaah spreads out His Hand at night to accept the repentance of those who did wrong during the day, and He spreads out His Hand during the day to accept the repentance of those who did wrong during the night. (This will continue) until the sun rises from the west.” (Narrated by Muslim, no. 2759) 

 

>>Said bin Jubair narrates that Ibn Abza said to me, “Ask Ibn ‘Abbas regarding the Statement of Allah: And whoever murders a believer intentionally, his recompense is Hell.’ (4.69) And also His Statement: ‘…nor kill such life as Allah has forbidden, except for a just cause …..except those who repent, believe, and do good deeds.’ (25.68-70) So I asked Ibn ‘Abbas and he said, “When this (25.68-69) was revealed, the people of Mecca said, “We have invoked other gods with Allah, and we have murdered such lives which Allah has made sacred, and we have committed illegal sexual intercourse. So Allah revealed: ‘Except those who repent, believe, and do good deeds and Allah is Oft-Forgiving, Most Merciful.’ (25.70)

 

From the above it is clear that if one does sincerely repent then Allah would accept this. However for repentance to be sincere and accepted the individual must renounce the sin itself, feel remorse and make a firm determination never to repeat it. The true repentance is characterized by signs, among which are a softness of the heart, frequent weeping, adhering to obedience, and keeping away from evil companions and places.

 

>>The Messenger of Allah (peace and blessings be upon him) promised that,“The one who repents from sin is like one who never sinned.” [Ibn Maja]

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Physical Punishments (as in Islam) Vs Imprisonment

Muslims have often come across many people who associate Islam with stoning, Hand-Chopping and terming them as "Harsh", "Barbaric'. While it is true that these punishments do feature in Shariah (Islamic Law), their applications has to met with the strict restrictions and meticulous conditions that should be carefully considered.

Are Physical punishments really "Harsh" and "Barbaric"?

This can be better answered by the distinguished scholars who have dealt the Topic of Punishment in detail.

One example of such a scholar and Philosher is Michel Foucault. He writes in his book "Discipline and Punish" on how the corporal punishments have diminished from the society and its negative consequence :

Punishment had gradually ceased to be a spectacle. And whatever theatrical elements it still retained were now downgraded, as if the functions of the penal ceremony were gradually ceasing to be understood, as if this rite that ‘concluded the crime’ was suspected of being in some undesirable way linked with it. It was as if the punishment was thought to equal, if not to exceed, in savagery the crime itself, to accustom the spectators to a ferocity from which one wished to divert them, to show them the frequency of crime, to make the executioner resemble a criminal, judges murderers, to reverse roles at the last moment, to make the tortured criminal an object of pity or admiration. As early as 1764, Beccaria remarked: ‘The murder that is depicted as a horrible crime is repeated in cold blood, remorselessly’ (Beccaria, 101). The public execution is now seen as a hearth in which violence bursts again into flame.

He further states:

The disappearance of public executions marks therefore the decline of the spectacle; but it also marks a slackening of the hold on the body. In 1787, in an address to the Society for Promoting Political Enquiries, Benjamin Rush remarked: "i can only hope that the time is not far away when gallows, pillory, scaffold, flogging and wheel will, in the history of punishment, be regarded as the marks of the barbarity and as proofs of the feeble influence of reason and religion over the human mind" (Teeters, 1935,30)

The above statements clearly shows that these corporal punishments were once a norm and were not seen as "harsh" and "barbaric".

Foucault's views have been summarised by Susan Hascall, a Law Professor, in her opening words to the paper "Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative Justice?"[1], She states:

For Foucault, the constant monitoring of the prisoners’ every movement by prison officials abolishes their very humanity. Foucault’s ideas are compatible with both restorative justice ideals and the ideals of Islamic criminal jurisprudence in general, and in particular, the law of qisas (a category of crime that includes intentional homicide and wounding)[2].

Similar views have also been shared by others, like US law professor Peter Moskos who recently pointed out in his book "In Defense of Flogging",

the notion that imprisoning someone in a cell is somehow more humane than subjecting them to brief but intense bodily pain is a collective cultural fiction. And it is totally belied by the reality of prison-life in America. Even societies in which vicious corporal punishment was common, notes Moskos, “rarely if ever placed a human being in a cell for punishment.” “Consequently,” he concludes, “that we accept prisons as normal is a historical oddity.”[3]

On Islamic Corporal punishments

The different punishments/penalties prescribed by Shariah are not in order to inflict harm on people and make them suffer; rather the Shariah concept for imposing penalties for the various crimes is that they prevent harm, destruction and anarchy in the society. They are not prescribed in order to harm people, but the contrary. They act as a deterrent.

Allah Most High says:

“In the law of retaliation there is (saving of) life to you, O you men of understanding.” (Surah al-Baqarah, 179)

The idea behind these various penalties being imposed is not to make an individual suffer, rather to create a better society as a whole, for this the Shariah laid down certain strict rules and conditions in order for the punishment to be established or enforced. These strict conditions can be seen in all the various penalties that have been imposed.

If the various conditions are met then and ONLY then the punishment is carried out, otherwise they are not enforced.

The objective of laying down strict and stringent conditions is not to get the individual punished rather to save him/her from the punishment. This will become more evident with the following incident that took place in the time of the Messenger of Allah (Allah bless him & give him peace):

Sayyiduna Abu Hurayra (Allah be pleased with him) narrates: “A man from amongst the people came to the Messenger of Allah (Allah bless him & give him peace) while he (the Messenger of Allah) was sitting in the Masjid, and addressed him, saying: “O Messenger of Allah! I have committed illegal sexual intercourse.” The Messenger of Allah (Allah bless him & give him peace) turned his face away from him. The man came to that side to which the Messenger of Allah (Allah bless him & give him peace) had turned his face, and said: “O Messenger of Allah! I have committed illegal intercourse.” The Messenger of Allah (Allah bless him & give him peace) turned his face to the other side, and the man came to that side. When he confessed four times, the Messenger of Allah (Allah bless him & give him peace) called him and said: “Are you insane?” He said: “No, O Messenger of Allah!” The Messenger of Allah (Allah bless him & give him peace) said: “Are you married?” He said: “Yes, O Messenger of Allah!” The Messenger of Allah (Allah bless him & give him peace) said (to the people): “Take him away and stone him to death.”[4]

The above incident shows the importance of trying to avert a legal punishment as much as possible. The man came and confessed to the Messenger of Allah (Allah bless him & give him peace) that he had committed unlawful sexual intercourse, yet the Messenger of Allah (Allah bless him & give him peace) ignored him, in order that he may change his mind.

This (trying to avert a legal punishment) has been explicitly mentioned in one Hadith.

Sayyida A’isha (Allah be pleased with her) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “Keep the Muslims away from punishments as much as possible. If there is any way out for an offender to escape punishment, acquit him. It is better for a judge to make an error in acquittal than in conviction.”[5]

With the restrictions that have been laid down by the jurists (Fuqaha), it is “nearly impossible for a thief or fornicator to be sentenced, unless he wishes to do so and confesses.” as described by scholar Rudolph Peters.[6]

Finally, one should remember that it is not necessary in order for one’s sin to be forgiven that he/she receives the legal punishment (hadd) for the sin committed. The reason being is that one is not obliged to confess that he/she committed adultery; hence one may keep the sin hidden and not inform the Islamic judge about it. Also the various Islamic legal punishments (hudud) are only carried out in an Islamic state (dar al-Islam) by the Imam, thus repenting to Allah Almighty will be sufficient.

So are corporal punishments better than imprisonment?

The objective of a punishment has to be understood here, and must be looked as to which provides an easy way of achieving this objective.

Dr. Jonathan expalins:

[P]re-modern states did not have the means to engage in the type of law enforcement that we consider normal today, particularly preventative policing and the investigation of mundane crimes. This important fact lies behind the severity of punishments found in Islamic law and in many pre-modern legal systems for that matter. Though scholars of criminal law continue to disagree on the best means of deterring crime, a common approach has been the utilitarian one formalized by Bentham. Its basic premise is the following equation:

(E)xpected Punishment/Deterrent power = (S)everity of Punishment x (P)robability of getting caught…. E = S x P  [7]

In a system where there are few or no police or where the police do not busy themselves investigating crimes, moderately intelligent criminals faced little chance of being caught. According to the E = S x P equation, if the probability (P) of being caught is minuscule, then in order for any meaningful deterrent effect to be created the severity of punishment (S) must be mammoth. Frightening punishments were seen as the only way to deter potential criminals whom police (what few there were) would never be able to reach.

And we can see how the mindboggling advances in technology and administrative capacity in the mid 1800’s changed Britain’s legal landscape. More effective policing, better prisons and, more importantly, better municipal services and a much-advanced economy meant that more offenders were caught and convicted. (P) went up dramatically, so (S) dropped accordingly. By 1900 Britain had only four death-penalty offenses.

As Muslims, we believe that the Sharia is the ideal law in acheiving this objective and that the corporal punishments in Sharia are valid in theory and it's actual implemention is under the control of ruler/state and is not necessary for people to be Muslim[8] If there are other alternatives.

End remarks

The charge that the corporal punishments enforced in Islam as "Barbaric and "Harsh" is unjust as we see the imprisonment(the punishment as in today's time) is also not free from this charge.

As Dr. Jonathan Brown puts:

It’s worth considering that the crimes human societies have judged the most acutely harmful – murder and rape – are not included among the agreed upon Hudud crimes. Perhaps the Hudud are not necessarily the most grievous crimes in terms of the toll they take on their victims or society. Fornication and Hudud-level theft are offenses almost by definition done in private, as intoxication could be as well. They are done out of the sight of all but God. Perhaps these stringent laws, which God’s mercy has made almost impossible to apply, exist primarily to remind people of the enormity of the sins that they usually get away with.

 

Recommended read - Stoning and Hand Cutting—Understanding the Hudud and the Shariah in Islam by Dr. Jonathan Brown availbe from : http://drjonathanbrown.com/2017/stoning-and-hand-cutting-understanding-the-hudud-and-the-shariah-in-islam/


Footnotes

[1] - Susan C. Hascall, "Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative Justice?" available from: http://scholarship.law.berkeley.edu/jmeil/vol4/iss1/2/

[2] - A word about the taxonomy of crimes in Islamic law is necessary for the reader who is not familiar with Islamic criminal law. There are three main types of crimes in Islamic law, the hudud, qisas and tazeer. The hudud crimes are those with a “fixed” penalty. They are considered crimes against God, and their punishments are proscribed in the Qur’an, and sometimes in the Hadith. Although there is some disagreement as to the crimes that are considered hudud, they generally include theft, zina (fornication and adultery), false accusation of zina, apostasy, drinking alcohol and highway robbery. Each of these crimes is punishable by some form or corporal punishment. The qisas crimes include intentional wounding and intentional homicide. The tazeer (or tazir) crimes are other wrongs against persons or the state but for which the punishment is not proscribed in the Qur’an, and the punishment is left to the state or the discretion of the judge.

[3] - Peter Moskos, In Defense of Flogging (New York: Basic, 2011), 50.

[4] - Sahih al-Bukhari, no: 6439

[5] - Sunan Tirmidhi, no: 1424

[6] - Rudolph Peters, Crime and Punishment in Islamic Law (Cambridge: Cambridge University Press, 2005), 54.

[7] - http://drjonathanbrown.com/2017/stoning-and-hand-cutting-understanding-the-hudud-and-the-shariah-in-islam/

[8] - Shaltut, Fatswa, 45; Jumʿa, al-Bayan, 71; Bin Bayyah, Tanbih, 83-4.

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