Islamic Laws Attitude towards Development of Penology in Modern times
Stages passed by Penology
Penology passed through three stages before it was drawn up in its present form in modern laws.
The first stage was that in which the offender estimated the volume of pleasure he would get from committing a crime. The legislator took notice, before a crime was committed, of the pain the criminal would suffer in return for the pleasure he had relished. `The criminal had to draw comparison between his pleasure and his loss due to pain. This was the "Classical Theory" which was introduced by Bacharia in his book "Crimes and Penalty". Bacharia was of the view that the legislator must inform the offenders who would likely commit crime, of the quantity of pain they would receive if they committed a crime, as will as the pleasure they would enjoy, and then leave it to them to choose between pleasure and pain. This theory was based on the principle of the two freedoms of will and option. It demanded that all offenders must be given an equal treatment when penalties were afflicted. The penalties must not vary due to their status or circumstances. This stage was also called the "Mataphysical Stage", because it was not based on an experimental programme. The Islamic Law agrees to a part of this theory, the part that decreed that no distinction should be made in applying the penal laws according to the circumstances of the offender, at least as regards the minimum degree of punishment. But the Islamic Law differed with this theory over two points. Firstly, it did not agree to the justifications which were made for the adoption of this system. By imposing penalty, the Islamic Law did not like to inflict pain in return for pleasure, but to protect the community. To Islam, every human community should observe and adhere to some principles. It has to take measures to prelate the freedom of thinking and reasoning, the self, the property, the faith and the honour. To eliminate vices, penal laws were prescribed. It imposed a penalty on wine dunking in order to protect reason and mind, and on theft to protect property, and retaliation in case of murder, and on adultery to protect the honour, and on apostasy to protect the religion. Secondly, to the Islamic Law, these penal laws were the minimum degree of punishment which was to be inflicted. But it was admissible that punishment, in certain cases, would be more severe, such as in the case of an unmarried man who made unlawful sexual intercourse with a married woman. In such a case, the man could be killed.
The second stage started when a light change was made in the Metaphysical Theory following the theory of the German philosopher Kant which was in the eyes of absolute justice a basis of the right to punishment. The function of punishment was to satisfy the human soul's deep-rooted desire for justice. This revised theory was called the "New Classical Theory". It had made significant changes in Bacharia's theory, and was taken as a basis for the individualisation of punishment. It was just and fair that different offenders would be treated equally. Punishment had to be counterbalanced between the benefit resulting from it and what had to be inflicted on the offender after taking his circumstances into consideration. The Islamic Laws acquiesced in this theory as regards the individualisation of punishment. This had been applied by the Islamic Law in minor offences as it has previously been explained. In so doing, by imposing punishment, the Islamic Law sought the welfare of the community. It imposed a minimum degree of punishment and had no objection to doubling it if the common interest deemed this necessary. In punishment for minor offences, the Islamic Law sought justice and coordination between what was beneficial and what was just and fair in the meantime. On this point, the Islamic Law agreed with the "Revised Classical Theory."
The third stage was the positive physical stage which was adopted by the Italian Positivists. This school of thought turned the ancient concepts about penalty upside down. It rejected the freedom of option and classified criminals under various categories in all of which no criminal seemed to be responsible for his crime, because his appetite for crime came to him either through inheritance, or created by the environment, or was committed by coincidence. This theory changed the criterion of punishment and its various kinds so that punishment would be commensurate with the gravity of the crime. The offender, whether he was responsible for his offence or not, had to be dealt with certain measures susceptible of overcoming his danger.
The positive school of thinking differed with the Islamic Law in its rejection of the "Arbitrary Freedom"at least as regards the Sunnis Rites". But it agreed with it on the individualisation of punishment and on taking measures corresponding with the gravity of crime.
Stages of penal development ended with was recently cpolicy of social defence which was envisaged by Mark Ancel. Despite the fact that this policy was in line with the theory of the Italian Positivists regarding putting criminals under various categories and sanctioning the idea of the measures, it did not deny the criminal's freedom of option and the assessment of his personal responsibility. It called for observance and respect of human rights. Moreover, it defined the idea of measures; they have to be taken for the defence of the community, and not, as it had been claimed by ancient theories, to be used as a mere method for correcting the illegal situation which was created by the crime. This last objective was not final.
By the measures, in fact, it was the social rehabilitation of the criminal which was sought so that he would not be allowed to pose any further danger to the community. The measures taken in this regard were meant for the protection of the community against any mischief the offender might do in future.
The Theory of Social Defence and the Islamic Law:
But to what extent the Islamic penal policy fell in line with the theory of social defence whose aim it was to provide protection to the community through certain measures which might not even include the sense of punishment and which might have been applied to an innocent as long as the policy aimed at protecting the community against any crime which had already been committed or was likely to be committed ?
The theory of social defence was based on general bases among which were the following Firstly; the study of the personality of the offender and his criminal gravity and taking measures in each case separately, according to the danger he had posed. This was the individualisation of punishment which was envisaged by the Italian Positivist school of thought. This theory was accepted by the Islamic Law. In Islam, the married adulterer was to be stoned to death, and as for the unmarried, he was punished by flogging with one hundred stripes. Nevertheless, it was reported that the Prophet Muhammad had ordered that he who would marry his daughter-in-law, [Al-Nisaei'. Al-Tirmidhi, and Abou Dawoud] or commit adultery with a married woman, whether he was married or not, [The Prophet's Sayings", by Ibn Al-Atheer] should be killed. However, punishment was commuted if the offence was minor and the offender a novice. If a punishment was imposed on a beginner, and the punishment was commuted, there would be greater hope for reforming the culprit.
Secondly ; Punishment is one of the measures taken to protect the community and not to restore the situation to its previous condition before committing the crime. But, besides, there are other precautionary measures which have to be taken even if a crime has not been committed but was likely to be done in future. These measures do not have the character of punishemnt ; they have to be taken in different degrees so as to be able to confront the criminal gravity in the interest of the community. In the Islamic Law, such measures were applied even in case there was not crime. An examplary story is that of Umar Ibn Al-Khattab with Nasr Ibn Hajjaj. Once, when Umar was roaming Medina, he heard a woman saying "Could not I be given wine to drink or be allowed to go to Nasr Ibn Hajjaj?" Umar asked for Nasr to be brought to him. The man was pretty, young, with long hair. Umar ordered that his head be shaved; but the chap became more beautiful even after shaving his head. Umar expelled him outside Medina though he did not commit any offence whatsoever. By so doing, Umar feared that an offence might be done. The measure he had taken was precautionary; it was the fear of a potential crime.
Thirdly; Punishment and measures are to be individualised so as to safeguard the community and check crime in modern times, the traditional penalties have become more elaborate. New penalties were brought into existence, such as the suspended punishment, detention at week-ends, placing one under house arrest, force labour, and force training on work without restricting liberty and legal option. The Islamic Law had virtually diversified the punishment for minor offences. It comprised all kinds of reproachment either by advice, censure, reprimand, beating, flogging, house-detention, and, sometimes, execution.
Fourthly; Observance of the principle of legality. This means that no crime or punishment is imposed without a text itemising the offence. Punishment was fully scrutinised by the Islamic Law and in minor cases it classified the offences and all kinds of punishments in general and left it to the discretion of the judge or "Muhtasib" to apply certain penalties on certain offences. It is to be noted that the Western jurisprudence has started developing itself and is desisting from overestimating the principle of the non-retroactivity of law, despite the fact that the majority of the supporters of the theory of social defence were of the view that a crime, or an unsocial act, should specified beforehand. To them, punishment or the measure should be treated likewise. But a minority of jurists, foremost among whom was Gramatica, started thinking of applying measures from the moment the danger of a crime emerged, though the crime itself has not been committed. [Procedures of the Second Arab Seminar on Social Defence, Vol. 2, p. 7. It is noticed that some modern laws have forfeited the principle of legality, among which were the Soviet Law issued in 1922 and 1926; the German Law, which was a revision of the Penal Law, issued in 1935; the Danish Law of 1930; and the Penal Law of the People's Republic of China.]The Islamic Law took a middle course between the majority and the minority of jurists. It had classified a number of non-social questions and of measures and left the option to the discretion of the judge or the "Muhtasib."
Fifthly The criminal's responsibility. Committing a crime, the criminal is not considered as having no free will or a victim of others. Since the crime has been committed without compulsion or mistake, the criminal was surely responsible for it. This principle was the same principle of the school of thought in question. It is different from the Italian Positivist Theory. The Islamic Law was in full agreement with the theory of social defence, though the Islamic Law was enacted fourteen centuries before the other theory. In fact, the Islamic theory is more accurate than the other theory; the former had distinguished between the punishment for what was considered an aggression on the community itself irrespective of the nature of the aggressor and the punishment which a judge would impose on minor offences, taking into consideration the criminal gravity of the case. Such a punishment the judge had to inflict according to the prevailing circumstances. The Islamic Law made of the penal law a categorical legal evidence of the danger of the criminal and a minimum degree for such gravity. It left all other minor offences to the judge to decide on his discretion. It was up to him to determine the criminal gravity and the proper measures to be taken. He was also entitled to go upward in point of severity of punishment, but within the prescribed penal laws; each punishment was to be inflicted according to the gravity of the crime.
From this it seems that the Islamic Law was in full agreement with the programme of the minimum degree of social defence which was envisaged by Mark Ancel. Mark Ancel theorised that under no circumstances would the principle of legality not be denied; and this was contrary to the concept of the philosopher Gramatica, one of the staunch champions of the theory.
The Islamic Law was clear of the mistake Mark Ancel made later. He, nonchalantly, rejected the study of the principle of responsibility, the mistake and the moral element in punishment. But the Islamic Law took a middle course. As regards penalties, it decreed that the offender should have made a mistake; and regarding the measures, it gave priority to the protection of the community and applied the measures even if an offence had not actually taken place. The more so was that measures should have been taken if an offence had been committed by an irresponsible person. The Islamic Law had also taken a middle course between the views of those who based responsibility on the free will, and that was evident in criminal penalties, and the principle of compulsion, which is evident in measures of severity.
Some jurists have criticised the theory of social defence for the great authority it gave to the judge in taking suitable measures in each case. They feared that by such authorisation, by a freedom of choice given to the judge, he may go astray. But a judge can deviate from the proper path even if he was under restrictions. The judge who inclines to deviate can do so by asking for more conclusive evidence, with the result that he might acquit an offender intentionally, or by neglecting further evidence which might entail convicting an innocent, also intentionally. To prevent deviation is a subject which is not included in law texts; deviation is prevented by the good selection of judges and the good treatment it must be meted to them. The English judge, who is known to be just and far from deviation, has greater powers for the application of penalties than those accorded to his French counterpart who is heavily restricted by the penal law. Originally, on the English bench only one judge sits.["Le Role du Juge dans Ie Droit Anglais et dans le Droit de l'Islam Compare" (The Role of the Judge in the English Law and the Comparative Islamic Law), by Muhammad Foad Ismail Mehanna, Paris of l930, page 15.] Though such a system makes it possible for the judge to deviate occasionally, no English judge has been known to have behaved contrary to the dictates of justice.