The Penal Shari‘ah

The opportunity a man has to exercise his will is one of the greatest favours the Almighty has blessed him with. However, just as this freedom is a source of honour for him, its misuse is a source of dishonour for him because from every instance of misuse emanates evil and disorder. This is precisely what the angels had feared when the Almighty informed them about His intention to create man:

أَتَجْعَلُ فِيهَا مَنْ يُفْسِدُ فِيهَا وَيَسْفِكُ الدِّمَاءَ؟ (30:2)

[Allah!] Will You create someone who will spread evil in the earth and shed blood? (2:30)

In the history of mankind, the first manifestation of this evil took place through the hands of Cain, the son of Adam. Consequently, out of this incident arose the need to protect man from the evil of man. It was evident from the norms of sense and reason vested by the Almighty in human nature that the only way to shield man from such evil was to reform his environment and educate and urge and train and instruct people; however, once a crime is committed, the solution is to administer appropriate punishment. What then should be the nature and extent of punishment of a specific crime? Since there is no basis in human intellect to determine these parameters, the Almighty Himself revealed His directives about these issues. Through His prophets, He gave mankind His shari‘ah, in which, besides other decrees, He divinely ordained the punishments of all the grave crimes concerning life, wealth, honour and the collective system of a society.

These major crimes are:

1. Muharabah

2. Murder and Injury

3. Theft

4. Fornication

5. Qadhf (accusing someone of Fornication)

It should remain in consideration at the outset that the directive which contains these punishments is addressed to the Muslims in their collective capacity and not in their individual capacity. This is an obvious fact. For this very reason, the surahs in which these punishments are mentioned were revealed in Madinah where a Muslim state had already been established under the rule of the Prophet (sws). Consequently, a group of persons who is not at the helm of affairs of a country has no right to administer these punishments. In the ‘urf (usage) of the Qur’an, the words فَاجْلِدُوْا (flog [the criminal]) and فَاقْطَعُوْا (amputate [the hands of the criminal]) of these verses are addressed to the rulers of the Muslims; no one else can be regarded as their addressee. AbuBakr al-Jassas writes in his Ahkam al-Qur’an:

وقد علم من قرع سمعه هذا الخطاب من أهل العلم ان المخاطبين بذلك هم الائمة دون عامة الناس فكان تقديره : فليقطع الائمة والحكام ايديهما وليجلدهما الائمة و الحكام

Any learned person who comes across these words, immediately understands that the rulers of an Islamic State are its addressees and not the common Muslims. Consequently, the implied words, for example, are: “the rulers should amputate their hands,” and “the rulers should flog them.”

 =1=

These are the crimes whose punishments have been divinely ordained by the shari‘ah. The punishments of the lesser forms of the crimes mentioned above, and the punishments of other crimes have been left by the shari‘ahto the discretion of those in authority with one exception: the death sentence, according to theQur’an, can only be given to a person who has killed someone or to someone who is guilty of spreading anarchy in the society. The Almighty has made it amply clear that when the Israelites were given the shari‘ahHe had ordained at that time that except for these two offences neither a person nor a government has the right to kill a person.[2] =2= The Qur’an says:

مَنْ قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الْأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا (32:5)

He who killed a human being without the latter being guilty of killing another or of spreading anarchy in the land should be looked upon as if he had killed all mankind. (5:32)

In the following paragraphs, I will explain the verses of the Qur’an that mention these punishments of the shari‘ah.