A Kin-Analysis on Islamic Capital Punishments and Feasibility /Part 1
Introduction
Sharia law provides a complete system of laws affecting every facet of life. The Quran and Sunnah (which are the customs and traditions of the Messenger Muhammad) are the main sources of sharia law whereas, Ijma’a (the consensus of Muslim scholars) and Qiyas (reasoning by legal analogy) are two secondary sources.[1] It is noteworthy that sharia law is not uniformly applied and that Muslim countries have different approaches to the use of the death sentence. It could be more accurate to refer to them as manifestations of the will of Muslim governments, which are grounded in each nation’s policies and cultural ideas.
Furthermore, devout Muslims are expected to follow heavenly laws. Consequently, confidence in Islamic laws and their implementation has become an integral aspect of the Muslim community’s overall theological framework. If someone purposefully denies any component of Islamic law, that denial may lead to a loss of faith in Islam. In the history of Islamic societies, the application of Islamic law was gradually applied during their formative period. One of the distinguishing features of Islamic law is its gradual application.
Owing to the fact that sharia law permits the death penalty, it can only be carried out in certain circumstances that preserve the strongest standards of due process and take the “overriding purpose” of justice, mercy, and repentance into account. In light of the “severity” of death punishment, this article will converse with prior studies that looked at the relationship between the severity of the penalty and the rate of crime.
Brief Review of History
One of the most misunderstood features of Islamic law is its criminal system. It is also the most misapplied penal system in the Muslim world. Human rights organisations and western scholars frequently portray Islamic teachings on capital punishment as one of the most savage and uncivilised forms of human cruelty. Nonetheless, proponents of Islamic capital punishment believe that capital punishment is the most effective deterrent tactic available, outperforming any man-made criminal system. Some argue that the harsh punishment tactics aren’t solely Islamic principles.[2] Murders and other serious crimes are likewise punishable by Jewish and Christian law. Since ancient times, humanity has used the death penalty. “The term “capital punishment” is older, having been used to describe the death penalty for about a millennium.
The roots of the term ‘capital’ in classical Latin and mediaeval French indicate a punishment including the loss of a head or life, possibly reflecting the use of beheading as a form of execution. The real practice of capital punishment dates back much further than the phrases that have been used to refer to it. The Babylonian Code of Hammurabi (approximately 1750 B.C.E.) contains roughly 25 capital offences; the Mosaic Code of the ancient Hebrews names various crimes and Draco’s Code of 621 B.C.E.[3] Most offences in Athens were punishable by death, and later Athenian law notoriously permitted Socrates’ trial and execution.
The Twelve Tables of Roman law involve the capital penalty for crimes including writing offensive songs or disturbing the nightly tranquilly of cities, and later Roman law notoriously allowed Jesus of Nazareth’s execution.[4] Capital punishment was viewed as within the jurisdiction of political authorities, embodied as a legal institution, and used for a wide variety of wrongdoing banned by law even in such early practises.” As a result, capital punishment is not a novel penal code system developed alone by Islam; it has been practised by humanity since the dawn of time.
Capital Punishment in theories
In order to measure the social impact of capital punishment in various nations, particularly on crime rates, it is necessary to review the theoretical framework that explains the relationship between crime and punishment. In this regard, social scientists’ work can be split into two categories. The first is those who believe that punishing criminals has a deterrent impact. According to the deterrence hypothesis, the severity and predictability of punishments are additive elements. To put it another way, maximum deterrence is generated when punishments are severe and consistent. Deterrence is minimal when penalties are modest and vague.
To mention, Gary Becker, Isaac Erlich, L. Philips and Votey, H, Daniel Nagin, S.S. Brier and S.E. Fienberg, John Pratt, and Naci Mocan are theorists who support this concept. In other words, they claim that punishment produces a better balance of happiness and sadness in general. As a result, capital punishment is justifiable if it:
- Stops the perpetrator from committing the same crime again, or;
- Deters crime by discouraging offenders.
The second group, alternatively claims that increasing the severity of the penalty has no effect on criminal behaviour in equilibrium. The proponents of this idea claim that the deterrence hypothesis is unsupported by evidence. Rendering to the supporters of the deterrence theory, they have certain methodological issues in their investigations. These thinkers, in contrast to deterrence theorists, say that the death penalty should be abolished even if perpetrators deserve to die for their crimes. Cloninger and Clark, Reiman, Davis and Reiman, Tsebelis, and Roger Hood are among the punishment theorists who accept this concept. In summary, these theories embrace easing sanctions and oppose harsh punishments.
Many people of many faiths and ideologies in the West and East have actively debated the case for and against capital punishment. On the subject of the penalty system in Islamic law, there are three schools of thought.
- The first group supports capital punishment, whereas;
- The second group is adamantly opposed to the Islamic penal system While;
- The third group partially agrees with the first group that the Islamic punishment system is viable and applicable today, it also places some strict conditions and limitations on its application, claiming that today’s socio-economic, religious, and political milieus do not allow for the implementation of the Islamic punishment system in our modern world.
Capital Punishment in the Islamic Criminal Law
The Islamic concept of capital punishment for murder, known as Qisas, provides a model for restorative justice.[5] Restorative justice models seek to repair harm by fostering discussions among the offender, victim, community, and government to determine what constitutes justice after a crime has occurred.[6] Instead of capital punishment, Qisas invites the victim’s family to forgive the defendant totally or take compensation money from the defendant. While the state has the duty to execute, the heirs of the victim have the option to forgive. The Islamic doctrine on capital punishment includes a restorative justice concept by fostering compassionate contacts between the perpetrator and the victims’ heirs.[7]
Even though the death sentence is legal under sharia law, its implementation is only permissible under specific conditions that uphold the strictest standards of due process and take into “overriding purpose” of justice, kindness, and repentance.[8]
There are three categories of crimes in sharia law:
- Qisas crimes; encompass homicide and the inflicting of bodily harm and relate to the retaliatory notion of “an eye for an eye”;
- Hudud crimes; which, according to Islamic law, constitute crimes against God and are punished with the most serious penalty by the Quran. Banditry and adultery are among them; and
- Ta’azir crimes; are considered less serious offences and are subject to the discretion of the court of law.[9]
Although the Quran mentions the death penalty as a possible punishment for murder, it also mentions other, more palatable paths to justice, such as restitution and forgiveness as we mentioned earlier.
This capital punishment restorative justice methodology is compliant with international law. Capital punishment is not prohibited by the International Covenant on Civil and Political Rights (ICCPR).[10] Even though Article 6 of the ICCPR expresses a wish for the death penalty’s abolition, it still sets rules for its just application. The death penalty must only be used “for the most heinous crimes in line with the law,” as per the statute, it must not be used in violation of the ICCPR or the Convention on the Prevention and Punishment of Genocide.
Despite its restorative justice nature and conformance with international law, Qisas are not the answer to the prejudices. Many experts feel that Islamic law cannot be implemented without the Islamic social security system.[11] How can the state punish citizens for crimes that are the result of a lack of basic resources if the state does not provide them with basic socioeconomic welfare?[12] This rationale can be applied outside of Islamic law to the injustice of a state enforcing criminal legal sanctions without providing fundamental economic justice to its citizens.
The Holy Qur’an did mention capital punishment several times in the Holy Qur’an. Allah Almighty says in verse 32 of chapter al-Ma’idah:
“If anyone kills a person, it would be as if he killed the whole people: and if anyone saved a life, it would be as if he saved the life of the whole people”[13]
Islam and most other global religions believe that life is valuable. But how can one value life and support capital punishment at the same time? The Holy Qur’an provides answers in verse 151 of chapter An’am:
“Take not a life which God has made sacred except by way of justice and law. Thus does He command you that you may learn wisdom?”[14]
The important issue is that life can only be taken “through justice and law.” As a result, in Islam, a court can impose the death penalty as a punishment for the most heinous of offences. After, God may not decides on one’s eternal punishment, until now there is a place for punishment in this life.
The Islamic penal code was created with the goal of saving lives, promoting justice, and preventing corruption and tyranny. According to Islamic thought, a severe penalty deters serious crimes that affect individual victims. The following two offences are punished by death under Islamic law, namely (1) intentional murder and (2) Fasad fil-Ardh.
- Intentional Murder
Although the Holy Qur’an keeps the death penalty for murder, it strongly encourages forgiveness and compassion. The murder victim’s family has the option of demanding the death penalty or accepting monetary compensation in lieu of the death penalty. See verse 178 of chapter al-Baqarah.
“If the offender is pardoned by the victim’s guardian, then blood-money should be decided fairly and payment should be made courteously.”[15]
This verse also makes it clear that, in accordance with Islamic penal law, homicide disputes can be resolved through mutual agreement between the parties. The right to pardon the murderer belongs to the victim’s heirs, and if they choose to do so, no one not even a judge can insist on the execution of the killer’s punishment. However, as the verse that follows states, the killer will be required to pay blood money in such a situation.
- Fasad fil-Ardh (spreading mischief in the land).
The second crime for which capital punishment may be imposed is a little more abstract. “Spreading mischief in the land” can indicate a variety of things, but it’s usually taken to mean crimes that harm the entire community and destabilise society. Apostasy (kufr or in other words when a person abandons their faith and joins the enemy in fighting against the Muslim community), terrorism, rape, adultery, and homosexuality are examples of crimes that come under this category.
It’s significant to highlight that vigilantism has no place in Islam; one must be legally convicted in an Islamic court of law before forwarding punishment. Because of the severity of the penalty, very stringent proof standards must be met before a conviction can be decided. In such cases the court also has the authority to impose punishments that are less severe than the maximum penalty, for example, fines or prison sentences.
When it comes to homicide, in order to protect people’s lives, the Quran strongly advocates capital punishment in verse 178 of chapter al-Baqarah.
“O, believers! The law of retaliation is set for you in cases of murder a free man for a free man, a slave for a slave, and a female for a female. But if the offender is pardoned by the victim’s guardian (brother), then blood-money should be decided fairly and payment should be made courteously. This is a concession and a mercy from your Lord.”[16]
In pre-Islamic times, it was traditional that if one of the noblemen was killed by someone from another tribe, retribution and revenge would be exacted by killing someone of comparable social rank, nobility, and tribe. If they cannot locate someone equal to the slain individual, a large number of people may be killed in retaliation. Islam eliminated such corrupt pre-Islamic conventions and traditions, equating everybody to punishment without any distinction between low and high castes.
When we read verse 126 of chapter al-nahl along with verse 40 of chapter ash-shura;
“And if you punish (your enemy, O you believers in the Oneness of Allah), then punish them with the like of that with which you were afflicted. But if you endure patiently, verily, it is better for As-Sabirin (the patient ones).”[17] And
“The recompense for an injury is an injury equal thereto [in degree]; but if a person forgives and makes reconciliation, his reward is due from God; for [God] loves not those who do wrong.”[18]
This verses lights that in Islam, the blood of a boss is equal to the blood of a servant, and the blood of a noble or king is equal to the blood of a noble or king. Regardless of one’s social standing. If a person kills another person on purpose, the Islamic punishment for that murder is the death penalty, regardless of the perpetrator’s social rank. For the aim of retribution, the Holy Quran explicitly prescribes this law of equitable punishment.
The holy Quran further add in verse 178 of chapter al-Baqarah as;
“But whoever transgresses after that will suffer a painful punishment.”[19]
This may include trying to take revenge for the murdered man’s blood after the case has been resolved and blood money has been given to the victim’s heirs. Or making efforts on the part of the murderer to postpone the payment of blood money in order to show the victim’s heirs that they are ungracious of their sympathy.
Let’s see an illustration given by a scholar; As per the Qur’anic criminal law, a thief who steals an amount from you must work for you until you are fully compensated for the same amount you lost, as well as any other damage or hardship caused by the robbery.
The penalty for hudud offences are serious, but proving a conviction can be extremely challenging due to the strict evidentiary standards. For instance, the Quran calls for flogging as the punishment for Zina (adultery), but, in order to punish Zina;
- Four “righteous” eyewitnesses must confirm that they saw the act of intercourse, and;
- They must all be consistent in their statements.[20]
And pregnancy does not establish adultery, and circumstantial evidence is not admissible. It is impossible to envision a circumstance in which such strict evidence criteria might be satisfied unless such an event occurs in broad public view.
(To be continued in part 2)
References
[1] J Valčiukas, Islamic Law: A Question of Adaptability, Doctoral Dissertation Social Sciences, Law (01 S), Mykolas Romeris University, p-55, 2018.
[2] Cheryl Benard, Civil Democratic Islam: Partners, Resources, and Strategies, Smith Richardson Foundation, p-14, 2003.
[3] Prince, J. Dyneley. Review of The Code of Hammurabi, by Robert Francis Harper, Hammurabi, King of Babylon, L. W. King, Hammurabi, King of Babylon, D. H. Müller, Hammurabi, King of Babylon, Hugo Winckler, and Hammurabi, King of Babylon. The American Journal of Theology, p- 601, 1904. Also available at http://www.jstor.org/stable/3153895.
[4] Neil Schoenherr, Romans are to blame for death of Jesus, the source, Washington University, 2004. (Last visited on 1st July 2022).
[5] Susan c. Hascall, restorative justice in Islam; should Qisas be considered a form of restorative justice? P- 35-38, 2011.
[6] Clifford k. Dorne, restorative justice in the United States; an introduction, p- 3-4, 2008.
[7] Hascall, supra note 5, at p 73-76.
[8] Ibn-Hajr, Tufathu-Ul Muhtaj Bi Sharah-Ul-Minhaj, vol-8, p- 47, 1995.
[9] Ibid. 8
[10] International covenant on civil and political rights, 1966.
[11] safia m. Safwat, offences and penalties in Islamic law, Islamic q. P-149, 162-163, 1982.
[12] Ibid. 11
[13] verse 32 of chapter al-Ma’idah
[14] verse 151 of chapter An’am
[15] Verse 178 of chapter al-Baqarah.
[16] ibid. 15 whole verse.
[17] Verse 126 of chapter al-nahl.
[18] Verse 40 of chapter ash-shura.
[19] Supra note, 15.
[20] Supra note, 8, p- 47.
Research Student at WIRAS, Calicut, India. Also pursuing BBA; LLB at Markaz Law College.