The criminal law of Islam, particularly the capital punishment has often come under attack. There is little doubt that the concerted attacks against capital punishment have been orchestrated chiefly by motivated elements that have their vested interests in this campaign. Let us analyse the root cause of the furore that emerged and spread against the capital punishment which coincided with the evolution of modern legal system under the umbrella of Industrial Revolution.
The early economic fundamentalists had several impediments and obstacles in their path towards glory. They knew that, for hosts of the activities, required for the protection and promotion of large-scale business, the contemporary laws had become almost a liability rather than an asset. Till the beginning of the nineteenth century, the whole world had almost similar laws; Roman, Jewish, Islamic and all other legal systems that were in vogue in different parts of the earth, rested on capital punishment, which was based on the principle of the right to seek revenge. The concept of eye for eye, nose for nose, ear for ear and soul for soul formed the foundation of all constitutions. Crimes like murder, arson and treason were unfailingly punished with death. The same punishment was often awarded to those found guilty of spreading chaos in the land. Death sentence (by beheading or hanging) was the rule rather than an exception for all serious crimes. Adultery and rapes, too, were punishable by death sentence; the convicts were either beheaded in full public view or were stoned to death. Lesser sexual misdemeanours invited lashes. Theft and bribery led to the chopping off of one hand from the wrist. The process of trial was incredibly quick; the cases were usually decided within a few days. The magistrate was usually helped in arriving at his decision and pronouncement of the punishment by jurists of the land. Appeals were entertained only in exceptional cases. The result was that the isolated crimes like murder, rape, arson, adultery, etc., were uncommon. The victims of these crimes, usually, remained satisfied with the sentence meted out to the offenders. This, more or less, compensated for the grief and anger, they were stricken with. They did not have to resort to extra-legal ways to avenge their injured sentiments. The people normally remained in peace except where the rulers themselves flouted the law of the land, or when civil wars broke out. Such examples, where the rulers did not care for the life and honour of their subjects, are aplenty in human history; but, the instances of the rulers justly treating the ruled are also numerous.
The supremacy of the law in the land and the severity of punishment would prevent the economic fundamentalists from developing a nexus with criminals which was necessary for the rapid expansion of their empire; the acceptance by the law of certain practices like adultery, gambling and drinking as crimes would make it impossible for them to commercialise human susceptibilities for instant enjoyment. A sea-change was, therefore, required in the whole legal system so that it became business-friendly.
The industrialists had already decided that the laws of punishment would have to be softened in letter and spirit, as well as, in application. However, a plan had to be charted so that a successful onslaught against capital punishment could be launched. The line of arguments was contemplated in detail and the elements that would assist in that battle were short-listed. The campaign began. Capital punishment was labelled as ‘inhuman unworthy of existence in the developing world’. The argument that was most vehemently put forward was that society had no right to take the life of a human being whatever the nature and severity of his crime, even if he had put to death another human being. But because there was still a forceful, often belligerent, advocacy by a sizeable segment of society in favour of continuation of death sentence, at least, in cases of murder, the argument was restructured a little: death sentence could be given but only in rare cases. These rare cases included murders that were cruel beyond tolerance. Hanging started losing popularity in one country after the other. The amazing scientific and technological achievements of Western world and its recurring political and military triumphs had impressed people all over the world, and they looked with positive interest for any theory that had its origin in the West. The campaign against capital punishment gained momentum. This rose to great heights in the twentieth century. The states began to amend their constitutions in order to abolish death sentence. Hanging and beheading of murderers and adulterers/adulteresses became rarer with the advance of time. As if ‘’rare ‘’ was not enough, it was soon converted into ‘’rarest of rare cases ‘’.
Another reason stated against death sentence was that there always remained a possibility of an innocent being sent to the gallows owing to false evidence having been produced in the court of law or a wrong verdict given by the presiding judge. A humanist colour was given through the propagation of the logic that ten murderers could be freed but one innocent could not be hanged. The seemingly compassionate argument won a great number of converts among the intellectuals with whom it had become almost a habit to reject whatever belonged to the past. The newer trends have always excited the philosophically inclined elements of society, and capital punishment became a popular hunting ground for writers, thinkers and reformists. The movement was so astutely organised, and so laboriously sustained, that people developed greater sympathy for the offender rather than the offended.There were always efforts- overt or covert- to save the lives of criminals, but nobody had tears for the amount of pain which the deceased might have been subjected to at the time of his murder. And nobody had any time for the travails of the grief-stricken family that lost its sole bread-earner or one of its heirs. None had time to think about their future; nobody had the heart to feel their sentiments, trauma and anguish. In some legal systems, like Islam, the heirs of the deceased had the satisfaction of deciding the fate of their detractors. The duty of the judge was merely to decide whether the evidence against the accused was conclusive. The judge would then pronounce the maximum permissible punishment for that crime. The heirs still had the right to refuse the appeals of mercy and let him be hanged, or to pardon him in return or not of any compensation they asked for. The new legal developments either completely seized or diluted all the rights of the offended party. Instead the culprits were bestowed upon ever-increasing rights and time and space for their successful defence in the court of law.
The relative mildness of punishment coupled with progressively lengthening procedures in trial before the pronouncement of the final verdict had presumable effects. The rate of murders and other crimes began to show an upward trend. It continues unabated till now in almost all those countries that have followed the western legal system because the criminals have a remarkably reduced fear of being caught, and virtually none for their being executed if their crime is established in the court. Furthermore, they have the advantage of using the latest technologies and advanced weapons which make it simpler and easier for them to pounce upon their victim without leaving a trace of evidence. If, somehow suspected and charged with murder, they have multiple ways to save themselves from the gallows. They have at their disposal services of competent lawyers who have mastered the art of subverting evidences and producing astonishing, mostly fallacious, arguments; if required, they would bribe the police officers, medical experts or judges. Many of the criminals are often professionals who kill others not out of personal enmity, but for their money-masters. They have therefore no dearth of money required for successful combat in the court. If ultimately convicted, the most likely course of event is that they would go to the prison for a few years; during this period, their families, if any, will be duly looked after by the ‘masters’. As soon as they are freed, they would waste no time in rejoining the profession; this time, however, they would take greater precautions, and money, to hit the given target.
The more the organised business gained ground the more criminals were produced. The procedures of trial have continued to become technically superior; but, the effectiveness of the judicial system in lowering the rate of crime has drastically diminished. With the overwhelming involvement of money, the legal profession has become increasingly popular. The advocates have become pettifoggers eager to serve their clients, who offer them huge sums as fees, rather than assist the cause of justice. The ethical code of the profession has unequivocally laid down the principle that the lawyer’s obligation is to look after the interest of his client, and it is the duty of the presiding officer to arrive at the truth. The advocates have, therefore, in effect, become the white-collared, legally recognised agents of the offenders of law, and use all possible means including their golden tongue to subvert justice. Judges have been left with no direct method to come to a reasonable and just conclusion; they have no option but to rely on the evidence and arguments presented by the contending lawyers. The advocacy has been reduced to a foul play of words and logic. And, yet, it is presumed that the net effect of the falsehood of the two contending parties of lawyers would unfold truth. What a travesty of judicial reasoning! The net effect, in reality, is that the malefactors are having a hey-day; the lawyers grow in riches; the weak, the poor and the oppressed are the sufferers.
What has been the impact of these modernist reforms in the legal system? People all over the world, with the only exception of some hard-core Islamic and communist countries, live under a constant danger of being murdered, beaten, robbed, raped and kidnapped. The people, in fact, are no more shocked to hear the news of ghastly murders and rapes; these have become the order of the day; and minds have become conditioned to ignore them. The “experts” and “analysts” work hard to investigate and point out myriads of causes for the decline in law and order, and revel in presenting numerous complex and often incomprehensible solutions; they would deliberately avoid pinpointing the real culprit: the inefficient law. They would explain that the crimes were natural by-products of technical and industrial development, and would take great pains in establishing that the crime and corruption were ‘global phenomena’; these are ‘necessary evils’ that the modern and developing world must learn to live with. The remedies suggested would include advising the people to take precautionary measures and advising the administration to have sophisticated weapons, and detective and monitoring systems. They conveniently forget that criminals are equally competent and vigilant competitors; they possess equally sophisticated weapons and systems, and do also know ways to win over ministers, administrative officials and police officers. Whatever marks could have been left behind during the course of crime are promptly destroyed by the ever-obliging policemen.
The paralysis of legal system led not only to the transformation of individuals, in an increasing number, into criminals of different sorts; soon, crime itself became a business, and saw the emergence of ‘organised crime.’ A spirit of opposition to the law was witnessed in society, favouring private rather than legal justice. A secret society of criminals established its roots in Sicily and spread terror far and wide. This organisation, called Mafia, controlled several illegal activities including gambling and narcotics, and became especially active in the US . A Great number of similar mafias are presently operating all over the world. Some of them have grown in such strength that even the governments, even if they desire, have no guts to destroy them.Mafias are now engaged in wide range of commercial activities, from the smuggling of gold, diamond and narcotics to the sex-market, the sales and purchases of land, hotelling, gambling and the sales of deadly weapons. Their liaisons with the politicians and the police are well known. ‘Mafiocracy’ can, therefore, be regarded as one of the ugliest and deadliest product of economic fundamentalism.
In contrast to the modern legal system, Islamic legal system keeps in mind the ultimate aim of constituting a peaceful society; the reduction of crimes therefore remains the top priority that cannot be compromised. Islamic law however differs from the older laws in some ways. In Islam, thoughthe right to retaliation is a fundamental right of every individual, one is always free to exercise one’s discretion in pardoning the convict after the judge has pronounced the judgement. The Qur’an in fact exhorts the offended to pardon or at least get the death sentence waived off in return for a suitable compensation. But the right to pardon remains an exclusive privilege of the offended or the heirs of the deceased.
In addition, Islam makes the system protective by removing the many factors that are often associated with crimes. These include ban on alcohol, drugs and removal of sexual provocations.
In the name of God, the Kind, the Merciful
If a man kills a believer intentionally, his recompense is Hell, to abide therein (for ever): and the wrath and the curse of God are upon him, and a dreadful penalty is prepared for him. (4: 93/A)
Heir has authority
And if anyone is slain wrongfully, we have given his heir authority (to demand qisas or to forgive): but neither let him nor exceed bounds in the matter of taking life; for he is helped (by the law). ( 17: 33 /A)
Murder by mistake
Never should a believer kill a believer; but (If it so happens) by mistake, (compensation is due): If one (so) kills a believer, it is ordained that he should free a believing slave, and pay compensation to the deceased’s family, unless they remit it freely. If the deceased belonged to a people at war with you, and he was a believer, the freeing of a believing slave (is enough). If he belonged to a people with whom ye have treaty of mutual alliance, compensation should be paid to his family, and a believing slave be freed. For those who find this beyond their means, (is prescribed) a fast for two months running... (4: 92/A)
But if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty. (2: 178/A)
* ……. We ordained therein for them: “Life for life, eye for eye, nose or nose, ear for ear, tooth for tooth, and wounds equal for equal.” But if any one remits the retaliation by way of charity, it is an act of atonement for himself. ( 5: 45 /A)
3. War against System and mischief on the earth
The punishment of those who wage war against God and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter; except for those who repent before they fall into your power: in that case, know that God is Oft-forgiving, Most Merciful. (5: 33-34/A)
As to the thief, male or female, cut off his or her hands: a punishment by way of example, from God, for their crime: and God is Exalted in power. But if the thief repents after his crime, and amends his conduct, God turneth to him in forgiveness...( 5: 38 -39/A)
The woman and the man guilty of adultery or fornication,- flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by God, if ye believe in God and the Last Day: and let a party of the Believers witness their punishment. (24: 2/A)
Chaste believers should not marry unchaste
The adulterer cannot have sexual relations with any but an adulteress or an idolatress; and the adulteress, none can have sexual relations with her but an adulterer or an idolater; to the believers, such a thing is forbidden... (24: 3/A)
..when they (slaves) are taken in wedlock, if they fall into shame, their punishment is half that for free women... ( 4: 25 /A)
Conclusive evidence necessary
If any of your women are guilty of lewdness, take the evidence of four (reliable) witnesses from amongst you against them...( 4: 15 /A)
And for those who launch a charge against their spouses, and have (in support) no evidence but their own,- their solitary evidence (can be received) if they bear witness four times (with an oath) by God that they are solemnly telling the truth; and the fifth (oath) (should be) that they solemnly invoke the curse of God on themselves if they tell a lie. But it would avert the punishment from the wife, if she bears witness four times (with an oath) by God, that (her husband) is telling a lie; and the fifth (oath) should be that she solemnly invokes the wrath of God on herself if (her accuser) is telling the truth. (24: 6-9/A)
(NOTE: The popular position taken by majority of Islamic clerics is that punishment for sexual act outside marriage (fornication) committed by an unmarried male or female is one hundred lashes, but the married adulterer or adulteress is to be stoned to death. It is argued by the jurists, an argument contested by many scholars, that the recitation of the verse dealing with ‘stoning to death’ had been suspended but its injunctions remained in force. There are some hadiths in favour of that argument. Some scholars however maintain that the Qur’an clearly prescribes lashes and stoning is distortion of Qur’anic injunctions.)
6. Defamation of women
And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations),- flog them with eighty stripes; and reject their evidence ever after: for such men are wicked transgressors;-unless they repent thereafter and mend (their conduct)...(24: 4-5/A)
And for those who launch a charge against their spouses, and have (in support) no evidence but their own,- their solitary evidence (can be received) if they bear witness four times (with an oath) by God that they are solemnly telling the truth; and the fifth (oath) (should be) that they solemnly invoke the curse of God on themselves if they tell a lie. But it would avert the punishment from the wife, if she bears witness four times (with an oath) By God, that (her husband) is telling a lie; and the fifth (oath) should be that she solemnly invokes the wrath of God on herself if (her accuser) is telling the truth. (24: 6-9/A)
PART I: FAITH
- Faith (Iman) and Submission (Islam)
- Monotheism versus Polytheism
- Life of the World and Hereafter
- The Qur’an on Christianity and Judaism
- The Qur’an on Priesthood and Monasticism
- Man: Aims and Nature
- Fundamental Duties-I
- Fundamental Duties-II
- Fundamental Duties-III
- Fundamental Duties-IV
- Fundamental Prohibitions
- Fundamental Rights
- Laws related to Civil Matters
- Guidelines concerning Criminal Laws
- Social System of Islam
- Rights of women in Islam
- Political System of Islam
- Economic System of Islam
- Spiritual and Moral System: convictions, Ethics and prayers
PART V: THE HISTORY OF CONFRONTATION
- THE HISTORY OF CONFRONTATION I - ADAM, IDRIS, NUH (NOAH); HUD; SALIH
- THE HISTORY OF CONFRONTATION II - IBRAHIM (ABRAHAM); LUT (LOT); ISMAIL, ISHAQUE (ISAAC) AND YAQUB (JACOB); YUSUF (JOSEPH
- THE HISTORY OF CONFRONTATION III - MUSA (MOSES); SHU’AIB; ELIAS (ELIJAH); AYUB (JOB); DAUD (DAVID); SULAYMAN (SOLOMON); PEOPLE OF SHEEBA;ZUL-QARNAIN
- THE HISTORY OF CONFRONTATION IV - ZAKARIYAH, MARIAM (MARY), YAHYA (JOHN), AND ISA MASIH (JESUS CHRIST)
- THE HISTORY OF CONFRONTATION V - PROPHET MUHAMMAD, COMPANIONS OF THE CAVE
- Between the right and the wrong