Criminal Law

INTRODUCTION


Criminal law in Islam is aimed at securing human welfare. Its general precepts exist to uphold universal principles that govern every human need. These universal principles are:
1. The preservation of life.
2. The preservation of religion.
3. The preservation of reason.
4. The preservation of lineage.
5. The preservation of property.
The Islamic penal system is aimed at preserving these five universal needs. For example, to preserve life, it prescribes the law of retribution, to preserve reason it prescribes the punishment for drinking, and to preserve property, it prescribes the punishment for theft.

The Islamic penal system is based on a number of principles, the most important of which follow:

1. Nothing is prohibited before the appearance of the Divine Law. Deeds are only described as prohibited if their prohibition is stated in the sacred texts. This principle is implied by many verses of the Qur’ân, such as: “We would punish no one until after we had sent a Messenger" and: “Your Lord would not destroy the towns until He sent a messenger to the mother of the towns who would recite to them Our signs.” The jurists have derived from verses such as these the following two rules of jurisprudence:
1. There is no accountability before the appearance of the Divine Law.
2.Everything is assumed to be permissible unless there is proof indicating otherwise.
2. Previous violations are to be pardoned (punishments are not retroactive). This principle, which is a consequence of the previous one, means that the divine texts that prescribe fixed punishments for certain crimes are not to be carried out on people who committed these acts before the texts prohibiting them were revealed. They are only applicable to those who commit these crimes after the punishments for those crimes have been prescribed. The previously mentioned verses point to this principle, as do the following:
“Allah has pardoned what has passed.” and: “Say to those who disbelieve that if they desist, Allah will forgive them what has passed.”

3. No one is punishable for the deeds of others. This means that, in Islamic Law, the individual is solely accountable for his or her crime, and no one else will bear the burden of an action that he or she committed. No one will be punished for a crime committed by someone else, no matter how close the two people might be related. The Qur’an has established this principle in many verses. Among these are the following: Allah says: “No soul will earn any wrong except against itself. No one shall bear the burden of another.”
and: “Whoever does good, then it is for his own soul, and whoever does wrong then it is against it.”

4. The penal code is universally applicable. The Islamic penal code – like other Islamic institutions – is applicable to everyone, without discrimination. Everyone is equal before it, no matter what his or her standing in society might be. The Qur’an has established the principle of universal equality in the following verse: “O mankind, We have created you from a male and a female and made you into nations and tribes so you can come to know one another. Verily, the most noble of you with Allah is the most righteous.”

Allah’s Messenger (peace be upon him) has clearly illustrated the principle of equality in carrying out punishments when a woman from the Makhzam clan – one of the noblest clans within the tribe of Quraysh – committed theft. The people of Quraysh interceded to have her acquitted, but Allah’s Messenger (may the peace and blessings of Allah be upon him) said:
“O people, those who came before you came to ruin only because they used to pardon their nobility when they stole and would carry out the punishment on the weak. By Allah, if Fatimah, the daughter of Muhammad, committed theft, I would cut off her hand.”

5. Punishments are not to be carried out in the face of doubt. This means that the judge cannot rule to have the punishment carried out upon the accused whenever there is doubt as to whether or not the crime has been committed, or whether or not there was a legal justification for making it excusable.

Allah’s Messenger (peace be upon him) made this clear when he said: “Do not carry out the prescribed punishments when there is doubt.”

Islamic Law recognizes two kinds of punishments for crimes. The first are punishments that are specifically prescribed by the Qur’ân and Sunnah for particular crimes. These punishments cannot be waived or modified when a conviction is had. Then there are punishments of a discretionary nature. These are to be applied in cases where the divine texts establish the prohibition of certain activities without setting down for them a prescribed punishment. In these cases, the punishment is to be determined by legislation or by the presiding judge in light of the indications given by the prescribed punishments for other crimes.