Diversification of Penalties

Crimes are interdicted by the Islamic Law and to combat them God has imposed specific and discretional punishments. The interdiction is either a commitment of an act which is prohibited by the religion or the renounce of a duty which was religiously Prescribed. These interdictions were so incriminated because they encompassed aggression on one of the five Islamic recognized and established rights, namely, self-protection; defence of the faith; protection of reason, property and honour.

The Muslim jurisprudents have divided crimes as regards their gravity into three categories. Seven crimes were singled It with specific penalty imposed on them. They are those of adultery defamation of chaste women; tyranny and oppression; highway robberies; drinking of alcohol; and apostasy. Retaliation, or blood-money, are prescribed for physical crimes against self; and this is the second category. The last is the minor offences for which punishment has been left to the discretion of the judge. Various punishements had been imposed by Muslim legislators on such offences.

Positive laws tend to specify punishments; they pass sentences of execution, imprisonment in various degrees, and fine. In most of the offences, the punishment, as imposed by the enacted laws, is the imprisonment. According to the Islamic Law, penalties are individualised.

1- In cases of apostasy and retaliation, the offender is to be killed by sword. A Prophetic saying orders, Whoever turns back from his religion must be killed. The Quran also states And whoever is slain unjustly, We hove indeed given to his heir authority but let him not exceed the limit in slaying. Surely he will be helped (by the authorities) ^{[Surat Al-Isra :33.]}

2 - For a married adulterer or adulteress, they have to be stoned to death. The Prophet said "In matrimony, a child is his father's son; and the adulterer must be stoned to death."

3- Flogging is prescribed for the drinker of alcohol, for the slanderer, and for the unmarried adulterer or adulteress. Flogging of the user of wine was unanimously agreed to by Muslim jurists. As for the slanderer, the Quran says:" And those who accuse free women and bring not for witnesses, flog them with eighty stripes." ^{[Surat Al-Nur (The Light): 4]} For the adulterer, God says :"The adulteress and the adulterer, flog each of them with a hundred stripes." ^{[Surat Al-Nur (The Light): 2]}

4- Islam prescribed crucifixion in certain cases God says "The only punishment of those who wage war against Allah and His Messenger and strive to make mischief in the land is that they should be murdered, or crucified, their hands and their feet should be cut off on opposite sides, or they should be imprisoned." ^{[Surat Al-Maida : 33]}

5- Another kind of punishment by Islam was the cutting off of hands and feet opposite sides. The Quran says : "The only punishment of those who wage : against Allah and His Messenger and strive to make mischief in the land is that they should be murdered , or crucified, or their hands and their feet should be cut off on opposite sides, or they should be banished from the land " ^{[Surat Al-Maida : 33]}

6 - Also prescribed was "banishment from the land", which literally meant "imprisonment."

7 - The hands of a theif must be cut off. God orders : "And as for the man and the woman addicted to theft, cut off their hands." ^{[Surat Al-Maida : 33]}

8 - Imprisonment is for the apostate woman. Opinions of Muslim jurists about the apostate woman are different. Some of them including the Imam Abou Hanifah, opine that such a woman must be forced to return to Islam by imprisonment and beating. Some others, including Al-Hasan and Qatadah, said that she should be enthraled. The two Caliphs Abou Bakr and Ali and the two Imams Malik and Al-Shafei decreed that she had to be killed exactly as the apostate man.

9- For Women was prescribed for the apostate women.

10- For women guilty of lesbianism, their liberty, according to some jurists, must be curtailed by detaining them in their houses. The Quran says "And as for those of your women who are quilty of an indecency, call to witness against them four witnesses from among you; so if they bear witness, confine them to the houses until death takes them away or Allah opens a way for them" ^{[Surat Al-Nisa : 15. It was said that this Quranic verse was revealed about adultry, but was later abrogated.]}

Besides, there are other related punishments, as cancellation of inheritance for the apostate.

As for the offences the punishment for which was left to the discretion of the judge, their punishments were many in number. Among these punishments were the payment of compensation ^{[When the servants of Hatib Balta' stole a camel of a man from the Muzaynah tribe, Umar Ibn  Al-Khattab ordered the thiefs to pay as fine double the price of the camel.]} the seizure of money in cases of abomination; beating; flogging; animadversion; seclusion from the community; etc...

In the West, sentences of imprisonment in degrees are passed in almost all the offences, various and this is the prevailing tendency of our positive laws But the Islamic Law basically prefers flogging.

To compare the effect of flogging to imprisonment, especially in our present times, there is no better than to reproduce here extracts from an article which was written by Dr. Muhammad Mokhtar Al-Qadi on The Punishment by Flogging, in Al-Azhar monthly magazine of April, 1966. The article runs as follows :-

Flogging is an old kind of punishment which was mentioned in institutional Books such as the Torah and the Holy Quran and prescribed by the Prophet Muhammad too. It was applied in a number of cases in a number of positive laws, such as the English and French laws. Until recently, it was practised in Egypt on borstal criminals as well as in schools for minor offences. But this punishment was finally abolished in the country.

"The effectiveness of this punishment was argued everywhere, and in Egypt in particular. The only argument of those who opposed this punishment was that it was so brutal that it affected the offender psychologically and made him feel self- contempt because it was only the animal which was beaten and flogged.
 

This argument lacks logic, though it lacks no intelligence. Like flogging, imprisonment also hurts the offender psychologically and makes him equal to animals. The difference between a human being and an animal is the former's mind and the liberty he enjoys. An animal is deprived by nature of reason; as for freedom, the animal is "artificially" deprived of it, only because man wanted it not to be free and to remain always subservient to him. He enslaved a variety of animals and put some of them in cages either for enjoyment, like the birds, or for their flesh, skin or milk, such as the camel, the sheep, the cow, or for riding, such as the mule, the donkey, and the like. If a human being, who is naturally fond of freedom, is imprisoned, this becomes an insult, making him equal to animals. In such a case, he would certainly suffer from inferiority complexes and realise that he was badly treated because he had committed an indecency.

"This wrong impression made people loathe flogging and favour imprisonment in its place. But, in fact, both punishments lead to the same humiliation. The opponents of flogging are either those of the West who, out of fanaticism, oppose a punishment which had been lawfully prescribed by the Holy Quran and Prophetic sayings, thus, they indirectly attack both the sources, or those of Eastern extraction, but who lived in Europe and were imbued with European culture, taking its side and parrotly resounding and repeating their masters' argumentations. Not only that; this kind of people try to add to whatever they hear and exaggerate in introducing the arguments.

Prisons may reform an offender who could not be disciplined by the society. By putting such a man behind bars, where he easily finds his sustenance, the society will live in safety. But in most of the cases, a prisoner can never be reformed in a prison. His behaviour may become more aggressive than before. Prisons, in fact, are institutions where the inmates to be habitua offenders.

There, they learn freach other lessons in stratagem and how crimes are committed or a punishment is evaded or a policeman deceived or assailed. Friendship is being usually established among the prisoners and agreements and promises are made so that they, individually or collectively, would take revenge from the community after their release.

`Even inside prisons, offences of narcotic smuggling, guards bribing, and other numerous and inexplicable in decent offences are made.

`Prisons, moreover, are institutions on which the State spends a lot of money to provide the prisoners with food, water, cloth, beds, and instruction. This money is better spent on any other productive work, provided another type of effective punishment, replacing imprisonment, is found.

"In prisons, human energy becomes impotent. Even those who are given work within the prison's four walls can never happy in so doing.

Outside the prisons, the prisoners' families would certainly be deprived of their supporters' care with the result that the children would go astray and their women be provided a chance to lead an easy life. A wife may also ask for divorce of her imprisoned husband and remarry another man whom she would bear more children. Her former children would certainly suffer from want, while the new offspring may live in sufficiency. Hatred, covetousness and spite would unnecessarily harbour their souls, and this only because the former head of the family was in prison and the wife was unable to live without a husband.

"When a prisoner is released, he remains branded with guilt and denied employment, whether he was a government servant or a worker. When Victor Hugo wrote "The Miserables", he, in fact, was attacking, and condemning, the prisons' systems and the way of life a prisoner would lead after his release.

This is the condition of those who are sent to jail in spite of their own teeth. But there is another faction of people who try their best to be driven into prisons only to have sustenance free of charge and lead a life relatively more comfortable for them than in the open. They would make offences without any reason or motivation, simply to be sent to jail where they will guarantee for themselves the necessities of life.

To put in jail such people who prefer laziness and indolence to toil and labour is a crime committed against the society as well as the national expenditure.

"As regards flogging, it is, in more than one phase, better than imprisonment. Firstly; it is an economical punishment which does not require from the state more than a stick or a whip, and the services of a man who would use them. After being flogged, the offender can go back home probably unnoticed by anyone else.

This punishment is effected in a very short time and the offender, unlike the prisoner, gets off without scandal or humiliation. The offender will not lose his work and can re-join his family without his wife suing for divorce, without seeing his children going astray, or his daughters leading a life beyond his control.

Flogging, moreover, is more deterrent than imprisonment, especially in minor offences. It is physically painful and its pangs are immediate. But imprisonment, though also painful, is slow in outcome. On the other hand, flogging can be described as democratic, because its pangs afflict everyone, young and old, poor and rich. Contrary to that is the imprisonment which is also painful and humiliating, but only to some. Some others may welcome it. In poor communities, where life outside a prison differs from that inside it, more degenerated in the former case than in the latter, prisons would never reform a criminal. It is, therefore, better for the State to spend its funds on schools, hospitals, rebuilding of society or industrial development rather than on prisons. Though criminals, prisoners' energies must not be crippled. It is true that criminals must be punished, but by a system which will not deter them from production to add to the national income. By so doing, husbands would be left to support their families and look after their children. Imprisonment hurts not only the offender, but also his family and in such a case it is not only the culprit who is punished, but also some other people who committed no offence whatsoever. And this is surely against the principle followed in imposing penalties."

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