Individualization of Punishment in Minor Offences
The minor offences for which punishment is left to the discretion of the judge demand individualization of punishment so as totally with the prevailing circumstances and the gravity of the crime. In this case, punishment is imposed according to the circumstances of each case. It is, therefore, a precautionary measure aiming at protecting the community against crime.
The Islamic Law preceded all other laws and legislations in adopting precautionary measures to protect the society against crime. While the traditional penal law prescribes a few number of punishments, such as execution, various degrees of imprisonment and fine, the Islamic Law has prescribed diversified punishments. In cases of intentional murder, the culprit, according to the Islamic Law, was to be beheaded. In cases of injury, retaliation is prescribed an eye for an eye, and a tooth for a tooth. The adulterer with a married opposite sex was to be stoned to death, and with the unmarried, to be flogged. The same punishment was imposed on whoever defamed women. For waging war against God, the offenders were to have their hands and feet cut off on opposite sides, or crucified, or imprisoned. In larceny, the thief's hand was to be cut off and for an apostate Muslim woman, she was to be put in jail or under house detention. For those guilty of indecency, various kinds of slight punishment were imposed. In the Quran, God says : "And as for the two of you who are guilty of it (indecency), give them both a slight punishment; then if they repent and amend, turn aside from them Surely Allah is ever Oft-returning to mercy, the Merciful." [Surat Al-Nisa' :16] Slight punishments comprise reprehension, scolding, imprisonment, banishment, etc. Sometimes, the offender might be dismissed from the service of the government and this punishment was often imposed by Umar Ibn Al Khattab on anyone of his agents who misused authority.
One of the objective procedures which the Islamic Law had adopted before any other modern law was the imposition of punishment without prescribing a minimum or a maximum degree for it. In minor offences for which the penalty `was left to the discretion of the judge, some of the Muslim jurists theorised that flogging must not exceed ten stripes. This opinion was based on the Prophetic saying : "One should not be flogged with more than ten stripes unless he has violated a restrictive ordinance of God". But most of the jurists, except the "Hanbalites", were of the opinion that the punishment left by the legislator to the discretion of the judge could be heavier. Flogging might exceed ten stripes and some times, the culprit might be sentenced to death. Though the English judge, since a long time, had powers greater than those of his opposite number in Latin countries, the Muslim judge had still greater powers in individualisation of punishment whenever had found such necessary for protecting the community within the penal law.
Since the discretional punishments were unqualified, the Muslim judge was in no need for any special legislation authorising him to impose exceptional other than the conventional penalties. He, for example, did not need a law for sending an offender to a reformatory or putting him under legal probation or sending him to a mental diseases hospital. As the punishment for minor offences had never been fixed either in quantity or quality, the jurists were of the view that the judge would be granted powers allowing him to take even precautionary measures in the absence of a relevant text. He had the power to give a delinquent boy to a certain family, or any derlict woman to a reformatory, for reform The absence of a minimum degree of punishment for minor offences had given the Muslim judge the right to commute a penalty to an extent that the offender seemed to have almost been pardoned. If an offender seemed to have been responsive to reform only by censure, and not flogging or imprisonment was to be applied. These commuted penalties had often been applied in Islam.
According to the Islamic Law, penalties fell under two categories, the restrictive punishment imposed by God, and the penalty on minor offences left to the discretion of a judge.
The restrictive ordinances are applied to larceny, adultery, libel, drinking of wine. oppression and apostasy. Retaliation, though equal to a restrictive punishment, was usually practised in cases of attack on self or less than self in gravity. Retaliation and restrictive punishment were prescribed in text.
As for minor offences, their penalties were of particular character. Firstly, the punishment was imposed on undefined crimes and in these cases the judge could incriminate any action within the general principles of the Islamic Law and impose on the offender the penalty he thought fit. The judge was not to blame in incriminating any indecency for which there was no text or in passing any sentence he would find proper. It was for the Muslim judge to treat a woman's display of beauty outside her residence as an offence which would come under punishment. This had been done by judges despite the fact that even the Holy Quran did not prescribe any punishment for such an act. The Quran simply says "And stay in your houses and display not your beauty like the displaying of the ignorance of yore." [Surat Al-Ahzab (The Allies) : 33] Though usury was prohibited by Islam and the usurers were threatened with chastisement, Islam did not prescribe any worldly punishment for such a crime. Secondly, the punishment for minor offences was left as we have said to the discretion of the judge, either in quantity or quality. As regards quality, some jurists were of the opinion that in such minor offences, flogging could be absolute, without limit. In this they relied on a decision taken by the Prophet Muhammad, transmitted by Al-No'man Ibn Bashir, that anyone who would engage in sexual intercourse with a maid of his own wife, but with the maid's consent, would be flogged with one hundred stripes. But if he had done this by force, he had to be stoned to death. Commenting on the punishment by flogging with one hundred stripes Ibn Al-Qayyim said that such punishment had to be left to the judge to decide.["A'lam Al-Muwake'in", Vol. II, page 28]
It was also reported that once Umar Ibn Al-Khattab flogged Ma'an Ibn Zaida with one hundred stripes and repeated the punishment twice as punishment for forging the Prophet's seal and submitting a forged order to the State's Treasury to obtain from it something he had no right to have. ["A'lam Al-Muwake'in", Vol. II, page 28]
Sectarian differences took place over the number of stripes given for minor offences. The "Hanafite" Sect were unanimously agreed to the view that punishment for minor offences should not amount to the restrictive ordinances. This, they opined, was in conformity with the Prophet's saying : "Whoever applies a punishment prescribed for a restrictive ordinance to an offence other than this is a transgressor." [Al-Bada, by Al-Kassani, Vol. 64] Even among those who demanded limitation of the number of stripes differences erupted as to the maximum of stripes to be imposed. The Imam Abou Hanifah theorised that in cases of libel and drinking of wine no more than 39 stripes were to be applied. This meant that the maximum of stripes had to reach 39 instead of 40. Abou Yusuf was quoted to have made two statements. The first said that as the minimum number of stripes for free people was 80, 79 stripes would be applied to others. Man, by nature, he said, was free, and the punishment, therefore, must be 80 stripes, but one stripe was to be deducted, bringing the total to 79. In the second statement, he was quoted as having theorised that the maximum punishment for minor of fences was 75 stripes. It was said that this was also the opinion of Umar Ibn Al-khattab and Hadrat Ali.
The "Shafi'ite" Sect held the same view, but distinguished between the free man and the slave in case they committed offences. The free was to be given one less stripe in case he committed an offence. In libel, punishment would not exceed 79 stripes. For the slave, the number would not exceed 39. To some other jurists, the slave was not to get more than 10 stripes for a minor offence.
As regards the "Hanbali " Sect the Imam Ahmad was quoted as having opined that never would the punishment for a minor offence amount to that of a restrictive offence. This quotation was transmitted by Al Khargi.
Differences also emerged over the feaning of punishment for restrictive ordinance." Some scholars said that if a slave drank wine or commited a libel, the maximum number of stripes to be applied was 40. Some other jurists said that in any certain offence, the nature of the crime had to be examined first, and if it was equal to a libel in its various dimensions, the punishment should not be heavier than that of a slanderer. If the crime was equal to adultery, the punishment was to be less than that for adultery. In the first case, the punishment would be 79 stripes, the punishment being 80 and in the second, 99, the punishment being 100. In all the cases there should be distinction between the free man and the slave.
As it has been mentioned earlier, the Imam Ahmad was of the view that in minor offences no more than 10 stripes would be applied as this was in conformity with a Prophetic saying. Excluded from this category was the culprit who would make sexual intercourse with his wife's maid, without the maid's consent. Such a man would receive 100 stripes. Following the Prophet's order, as reported by Abou Baradah, whoever drank wine during the month of Ramadan was to be flogged with 20 stripes. The Imam Ali decreed that any stranger who would be found in one bed with a woman must be flogged with 100 stripes.
As for the "Maliki' Sect, they were of the view that there should be no maximum for flogging even though it exceeded the prescribed punishments. In this they depended on the sayings of the Prophet and his Companions, which were considered by other Sects as exceptions. To the "Malikis", these sayings were mandatory and had to be observed. Other Prophetic sayings which prescribed a maximum for a punishment, the "Malikis" said, had to be observed only during the Prophet's life time, when the criminals were not in need for reform for more than that.
I, personally, tend to hold this view which has its own weight. Punishment for offences, in fact, differs according to the differences among offenders as well as offences. Some of the crimes are more grave than those for which flogging was prescribed as punishment. Some criminals, on the other hand, were not deterred by flogging and for this reason the number of stripes had to be left to the ruler to decide so that the punishment applied would serve the purpose aimed by the law. This opinion is in conformity with the general principle of minor offences that the punishment had not to be fixed, but left to the ruler to decide.
Punishments for minor offences also differ in kind. There are heavy. as well as moderate punishments. The punishment, again, may be physical or moral. If flogging was not imposed, exclusion was decreed. It was reported that the Prophet Muhammad had ordered his Companions to keep themselves away from those who held back and failed to participate in the Tabouk expedition, namely, Ka'ab Ibn Malik, Murarah lbn Rabia' Al-A'meri and Hilal Ibn Umayyah Al-Waqifi. These people had been forsaken fifty nights during which time-no-one talked or greeted them. This ban continued until they expressed their regret and repented. On this occasion, God said "And He turned in mercy to the three who were left behind; until the earth, vast as it is, became strait to them and their souls were also straitened to them ; and they knew that there was no refuge from Allah but in Him. Then He turned to them in mercy that they might turn to Him. Surely Allah - He is the Oft-returning to mercy, the Merciful". [Surat Al-Taubah (The Immunity): 118]
Among these punishments was the animadversion. It was reported that once Abou Zarr had called another man names and taunted him with his mother. The Prophet Muhammad asked him : "Have you, Abou Zarr, upbraided him with his mother ? You are a man who are still following the practices of the Days of Ignorance". Abou Dawud reported that once a drunkard was brought to the Prophet Muhammad. The Prophet ordered the Muslims to scold the man. Another version of the story says that the Prophet ordered that the man be beaten, and not only scolded. Another punishment was imprisonment. This punishment needs not to be verified because there were prisons at that time and some of them were built by Umar Ibn Al-Khattab. Banishment had also been decreed. In the "Al-Mabsut". it was reported that the Prophet Muhammad had ordered that effiminates should be expelled from Medina. Fine was another punishment. In the "A'lam Al-Muwaqi'in, the slaves of Hatib Ibn Abi Balta' once stole a camel of one of the Muzaynah tribe. The man took the thieves to Umar. They admitted the crime. Umar wanted their hands to be cut off, but later changed his mind, saying to their master Hatib "`By God ; Had I not known that you always give them hard work to do, leaving them also to bear starvation, forcing them to disobey God's orders; I would cut off their hands. By God while I will spare them this penalty, I will impose on you a heavy fine". Then, Umar asked the Muzaynah tribesman "How much does your camel cost? " The man said "Four hundred". Umar ordered Hatib "Go away, and give him eight hundred." Another punishment was to throw the culprit into fire; The Imam Ali had ordered that apostates and those who opposed and refused to accept Abou Bakr and Umar as Caliphs to be burnt. Abou Bakr had also ordered that homosexuals be thrown in fire. Other punishments included warning confiscation of property and defamation. But imprisonment for some minor offences had reached in some cases execution though it was neither a decreed penalty nor made in retaliation. Al-Tirmidhi, Al-Nisaei and Abou Dawoud reported that once a man married his step-mother. The Holy Prophet ordered Abou Baradah to decapitate him and decreed that anyone who would consumate a prohibited marriage must be killed. This, of course, was not a prescribed punishment, but a discretional one. In this case, the Prophet Muhammad did not make any distinction between a married or an unmarried person.
Among the punishments which were previously imposed on minor offences were blackening the criminal's face with paint, or forcing the offender to ride a donkey or a mule in reverse. Once, the Caliph Umar blackened the face of a man who gave false evidence and forced him to ride a mule in reverse.["Al-Siyassah Al-Sharia" by Ibn Taymiyah, p., 121]
Combating crime with penalty differs according to the type of criminals and the gravity of the crime. Some people may commit the same crime, but punishment would differ in magnitude according to the offender's character and behaviour. This is likely to appear as a legal inequality, but, in fact, it is not so. Because by and large, the punishment is imposed to serve as a deterrent. Some offenders are deterred only by a slight punishment. Discretionary punishments should be imposed only to serve the purpose for which they were imposed. This was the principle called for Bentham in the modern times. If deterrence could be realised by the slightest of punishments, no heavy punishment is then required. If deterrence cannot be materialised except by a heavy punishment, the punishment must not be reduced. The higher classes, for instance, are deterred by slight punishment, while the lower classes are not by such. One of the Prophetic sayings is: "Help the dignified and the venerable except if they commit an offence." [Individualisation of punishment does not violate the principle of equality before the law. Anyone who is deterred by rebuke and reprimand should not be treated on the same footing with another one who committed the same offence but without being deterred except by flogging.]
Islam moreover, has imposed penalties to severe as protective and precautionary measures. Once, Umar Ibn Al-Khattab ordered that the head of Nasr Ibn Al-Hajjaj be shaved simply because his physical beauty was lauded by the women, although the man was known for his chastity. But when the man's head was shaved, he appeared not to have lost anything of his glamour. Umar had no alternative but to expel him from the city, without the man having committed any crime. But it was a precautionary measure, as seduction was inevitable.