Canada Free Press published on line an article by Kelly O'Connell entitled "
Crime and Punishment in Islamic Law." A very nice discussion making a companion to another article called "
Non-believers under Islamic Law."
Is American Law Really the Same as Muslim Shari'ah, As Ground Zero Mosque Imam Rauf Boasts?
This article examines classic Islamic law, the “Shari’ah,” regarding crime and punishment. Recently, the “Ground Zero Imam” Egyptian Feisal Abdul Rauf claimed Muslim and American law were essentially the same. He said, “What’s right with America and what’s right with Islam are, in fact, very much in sync…I call America a Sharia compliant state.” But what would being a “Shari’ah compliant state” really mean? To understand this, we need to study the details of Shari’ah law.
One way to better understand Muslim Shari’ah law, is by taking a particular sub-category, such as crime and punishment, to see how Islam treats these topics. While analyzing this issue, the reader will undoubtedly begin to realize Shari’ah and American law are not so similar, and that perhaps Rauf is wildly bluffing (or something else). He claims American law is similar to Muslim because they are both “from God,” while ignoring the fact mankind has created many Gods over millenniums, each mostly opposed to the rest.
Of course, Islamic views of crime and punishment have shifted occasionally over the centuries, and the Shari’ah varies between regimes and Muslim schools. This essay gives a general picture of the Shari’ah on these topics.
I General Introduction to Islamic “Shari’ah” Law
The foundation of Islamic Shari’ah law is the Qur’an; combined with the Sunna, or the Prophet’s model behavior; the consensus of the four schools (Ijma), and analogical reasoning (Qiyas), according to Shari’ah: The Islamic Law by Abdur Rahman I. Doi. These sources are considered divine.
The Qur’an is believed to have “co-existed with God Himself in a heavenly book, known as the ‘Mother Book’” written in Arabic from all eternity,”[a] writes David Forte in Studies in Islamic Law; Classical & Contemporary Application.
The Shari’ah seamlessly combines public, private and religious law, featuring elements of ancient codes, such as revenge. For instance, at a public execution for a crime against a person, the victim will normally be present in the crowd, viewing the impending death. The punishment is owned by the victim or their kin, and only they can stop the killing from taking place, normally by acceptance of blood-money (diya).
II General Description of Shari’ah Criminal Law
There exists no general concept of penal law in Islam. The concepts of guilt and criminal responsibility are little developed, that of mitigating circumstances does not exist; any theory of attempt, complicity, of concurrence is lacking. On the other hand, the theory of punishments, with its distinction of private vengeance, hadd punishments, ta’zir, and coercive and preventative measures, shows a considerable variety of ideas.
As Forte points out, one cannot actually say there is a modern Muslim penal code, writing, “Islamic law does not possess a concept of penal law comparable to that of modern systems. Instead, it categorizes its offenses by the types of punishment they engender.”
Therefore, in terms of punishments, there are five basic categories. Behavior with a specifically prescribed punishment is under hadd. Discretionary punishment for various acts are under ta’zir, where the judge sets whatever penalty he chooses. Personal revenge, where retaliation or blood-money (diya) is applicable, is under jinayat. Offense against the state receive administrative penalties, or siyasa. And crimes where the appropriate, or chosen response, is personal religious penance, are under kaffara.
III Criminal Procedure
Shari’ah legal procedure is a somewhat counter-intuitive process. Rules for choosing the proper court and applying correct procedures, essential for American Due Process, are virtually non-existent in Islamic law. Rudolph Peters writes in Crime and Punishment in Islamic Law,
There are very few general principles in Islamic criminal law. The classical books of fiqh do not contain chapters dealing with general notions or rules. Those that exist are either mentioned in each chapter devoted to a specific crime or they must be found by deduction.
The most important local players in the Muslim legal system are the judge (qadi), the police (shurta), and the Islamic “inspector of the market” (muhtasib), says Schacht. The latter is an official who made sure weights and measures were accurate, but also became a keeper of public morality and justice, including overseeing the police force. The muhtasib controls the system, but the qadi is independent in his decisions. Yet, the state at the highest levels may legally intervene at any time and make political decisions involving the accused which completely derail justice.
Police may beat suspects, not to extract a confession, but merely remind the accused his duty to be truthful, according to There was no office of public prosecution under classic Shari’ah doctrine, although the muhtasib occasionally came to fill this roll as defender of public morals. Most cases were launched by private prosecutions from victims. Only verbal testimony (shahada) is considered evidence, with exceptions made for proof made by smell of alcohol for drunkenness or pregnancy indicating illicit sexual activity. Written documents are merely allowed as memory aids.
IV Muslim Criminal Law Theory
A quintessentially religious law, Shari’ah has set penalties, known as hadd—called “exemplary punishments” (Qur’an 5:38). These are performed in public to remind residents the wages of evil. Retribution is an important part of Muslim punishments, using the standard of Lex Talionis, ie “eye for an eye,” to measure punishment. For example, the murderer should be executed in the same manner his or her victim was dispatched. The Discretionary Punishments (ta’zir) are especially meant to return offenders to the gilded path of Allah.
V Specific Religious Crimes & Punishment Under Islamic Law
The state is generally responsible for criminal punishment, with a few exceptions, writes Peters. The prosecuting next of kin are allowed to personally deliver the death sentence in the case of murder. Also, a slave should be punished by their master, with the exception of amputations, which state executioners enforce. All criminal sentences are to be carried out immediately upon pronouncement, unless a compelling reason exists not do so.
Were an offender to commit several different crimes which cannot be punished at once, a weight-list is used to decide which comes first. Writes Peters,
If a person, having committed several crimes, is sentenced to a number of different penalties, each of them must be carried out. If this is physically impossible, the authorities must first execute those sentences that are founded on the claims of men and then those resulting from the claims of God…If a person has been sentenced to the removal of his eye by way of retaliation, to eighty lashes for slander, to a hundred lashes for unlawful intercourse and to the amputation of the right hand, the head of state or his agent must first carry out the gouging out of the eye because that is the claim of a man, then imprison him until the wound has healed, then carry out the punishment for calumny, etc…
A. Hudud Religious Punishments
Forte describes the religious Hadd crimes, writing “Islamic law denotes five “Quranic offenses” which are regarded as offenses directly against Allah and which compel specific punishment.” These crimes are Unlawful Intercourse (Zina), False Accusation of Unlawful Intercourse (Kadhf); Drinking of Wine (Shurb); Theft (Sariq), and Highway Robbery (Qat’ Al-Tariq).
1. Unlawful Intercourse—Zina: This occurs when a person has sexual relations with anyone not their spouse, nor a concubine (Shari’ah accepts sexual slavery). Technically, adultery is not a crime as no woman has exclusive rights to her husband, and the husband has no exclusive bond with his wife, despite this being an offense against Allah. The crime of Zina can also occur if a man takes and sleeps with a fifth wife while the four previous yet live, weds a close relative or girl before she undergoes puberty, or commits necrophilia, writes Forte.
Proof of Zina must be provided by four adult Muslim males or a confession. The crime should have occurred within the last 30 days. On a discrepancy of testimony, of even a technical irregularity, the four can then receive the punishment for Zina themselves. Peters explains that if a man has sex with a slave not his, he owes her master a fine. A woman who reports a rape but cannot prove it occurred via four witnesses can then be prosecuted for Zina with her unproved accusation acting as a confession.
Zina Penalty:
The punishment here can be stoning, lashing, or both, depending upon the school. A stoning should only be applied to one convicted of unlawful intercourse, who is mentally competent, is a free person, and has already experienced lawful sexual relations in a marriage. For all others, it is either one 100 lashes for a free person, or 50 for a slave. All homosexual relations fulfill the Zina requirements, although the penalty is simply death instead of whipping, according to Peters.
2. False Accusation of Unlawful Intercourse—Kadhf: This occurs when a competent adult slanders another competent adult, who is a free Muslim, with false charges of Zina. Claiming someone is illegitimate also qualifies. Proof for this occurs via normal Islamic means, using oaths of witnesses, or by confession. Under a special rule, a husband may charge his wife with infidelity without risk if he uses the li’an procedure, which Forte describes as “...if he swears four times by Allah that he is speaking the truth and, at a fifth oath, calls down a curse upon himself if he is lying.” The woman, as a defense, may repeat the exact procedure. If either one refuses the li’an, they are considered guilty, ipso facto, and receive the lashes.
Kadhf Penalty: The punishment for kadhf is 80 lashes for a freeman, or 40 for a slave.
3. Drinking of Wine—Shurb: Alcohol was not originally illegal but became so after Muhammad was appalled at the drunkenness of Arab society. The law also applies to any other intoxicant or drug. Proof can be provided by a confession, which can then be withdrawn at any time without penalty. Or witnesses can attest seeing the accused drinking, smelled alcohol on his breath, or observed him soused.
Shurb Penalty: The penalty for intoxicant imbibing is 20-40 lashes.
4. Theft—Sariq: This must be a crime of theft involving removal by stealth of an item owned by another of at least a certain value, kept in a locked area or under guard (hirz), says Peters. For example, removal of a gold coin stored in an animal stable would not qualify. This crime should be prosecuted by the government.
Sariq Penalty: Amputation of the right hand, as based upon Qur’an 5:38; although the Shiites allow just four fingers of the hand amputated, according to Peters. A second, third and fourth conviction can remove all such appendages.
5. Highway Robbery—Qat’ Al-Tariq: The Arabs considered this the most serious kind of crime as it threatens the calm and order of all society, according to Forte. Two types of evil are covered here. The first is robbing travelers from distant places; whereas the second is armed assault into a private home. Even non-Muslims are protected under this law. There must be at least a holdup which occurs outside the city for the penalty to apply to banditry, states Peters. The perpetrator must be of superior force to the victim, and so women do not qualify.
Qat’ Al-Tariq Penalty: The first conviction for this offense merits the amputation of the right hand and left foot of the wrong-doer, although some schools allow a simple deportation if no harm occurs. The second results in amputation of the left hand and right foot.
The just retribution for those who fight GOD and His messenger, and commit horrendous crimes, is to be killed, or crucified, or to have their hands and feet cut off on alternate sides, or to be banished from the land. This is to humiliate them in this life, then they suffer a far worse retribution in the Hereafter.
VI. Other Shari’ah Crimes, Punishment, & Blood Money
A. Ta’zir Penalties
Discretionary penalties, or Ta’zir, are punishments delivered at the qadi’s subjective decision. The purpose is to punish acts against man and God, and sometimes includes reparation and repentance, writes Forte. These punishment vary in severity:
Private admonition to the guilty party, sometimes by letter;
Public reprimand in court;
Public proclamation of the offender’s guilt;
Suspended sentence;
Banishment;
Flogging;
Imprisonment;
Death.
Forte says many crimes are covered by Ta’zir that for some reason have eluded Hadd penalties, such as apostasy (ridda —although some schools consider this hadd), wine selling, homosexual activity, bodily harm or murder, bestiality, perjury, slander and usury.
B. Fines & Blood Money
Fines are paid to the state, whereas blood-money (diya) goes to a victim or kin, based upon his blood-status. Bloodprice is the victim’s worth, only calculable against that of the accused, which controls the punishment. A person cannot receive retaliation for killing a person of a lower bloodprice. For example, a Muslim cannot be executed for murdering a slave or member of the protected classes, being Christians or Jews, deemed dhimmis, i.e. the People of the Book (Bible).
C. Public Scorn, Imprisonment & Banishment
A common punishment is public exposure to scorn (tashir). Achieved by shaving the culprit’s head, or covering his face with soot (especially for false witnesses) and parading him sitting backwards on an donkey, through the community, with a town-crier announcing his sins. Banishment (nafy, taghrib) is associated with two crimes—simple banditry and illegal sex. If a woman is banished for being sexually immoral, a male relative must travel with her to make sure she stays chaste. Imprisonment (habs) is not normally used for penal law, but as a means to encourage debtors to pay.
D. Retaliation
Retaliation for injuries (qisas ma dun al-nafs) comes as Lex Talionis, eye-for-eye punishment in the form of amputations, blinding, and infliction of wounds the victim received. A recent Saudi case involved a man sentenced to judicial paralysis for severing the spinal cord of another. This should not be done till the victim has healed, in case he dies.
E. Theft & Amputation
Muhammad probably borrowed amputation (qat) for theft from the pagan Quaraysh tribe, who inflicted this punishment on rival tribesmen caught stealing, says Forte. While Muslim jurists claim amputation is to prevent recidivism, it more likely originated as judicial revenge. The hand is removed at the wrist, the stump cauterized in boiling oil, at the criminal’s expense, and the hand can be hung around the thief’s neck for three days. Cross-amputation (al-qat min-khilaf) is a punishment for brigands, ie highway robbers.
F. Flogging (Jald)
Flogging by leather whip is a very common punishment under the Shari’ah. The executioner administers this penalty, but should not raise the whip arm above the shoulder. The more serious a crime, the harder the executioner should flog the criminal. For example, one convicted of illegal sex should be beaten more severely than one guilty of drinking alcohol. Men are whipped standing, women seated. Men are stripped to the waist, while women are allowed to keep on clothes. As advised in Qur’an 24:2, the punishment should be public. The blows are to be spread over the body, except for dangerous places, like the head or genitals, as the purpose for whipping is not death.
G. Executions: Beheading, Stoning & Other Means
There are many ways to execute a criminal under Shari’ah. Typically, the mode of execution is beheading by sword, as done at famed Chop-Chop Square in Riyadh, Saudi Arabia. But the crime defines the manner. For example, homosexuals are executed in typically dramatic fashion, by stoning, beheading, thrown from a high wall or building, hanging, immolated by fire, or buried alive (despite male homosexuality reportedly being rampant in the Middle East, according to Raphael Patai’s Arab Mind).
Execution may be used as retaliation, done by the kin of the victim, according to Qur’an 16:126 & 2:194, which calls for the murderer to be executed in the same manner as he killed his victims. Only if this would result in extended torture will the sword be substituted. The Government will inspect the proposed execution weapon and decide if the person can handle it properly. If not, then a substitute executioner will be arranged.
Death by Stoning (Rajm), or lapidation, is delivered by a crowd with the ultimate intent of killing the victim, writes Peters. The stones used should neither be too large, which would kill the criminal too quickly, nor too small, which would delay the job. The proper size is a stone which fills the hand. Women are to be dug into the earth up to their waists before the event. If the conviction is based upon accusations, the accusers are the first to throw. If the conviction is based upon a confession, the state representative is first to toss.
For Highway Robbery (Qat’ Al-Tariq), if a killing resulted during an attempted robbery, the punishment is beheading by sword. If a murder occurred during an actual theft, the punishment is execution by crucifixion (salb), the body left dying three days. Unlike a normal murder, the family of the victim cannot choose blood-money (diya) instead of execution.
Apostates may renounce Islam by word or deed, including rejecting axiomatic articles of faith, like denying Muhammad’s mission, fasting, or disrespecting the Qur’an. The apostate (ridda) is given three days to reflect, then put to death. Some schools only execute men, whereas the women are kept alive but flogged during the hours of prayer, according to Peters. Frank Vogel, in Islamic Law & Legal System: Studies of Saudi Arabia states that apostates are beheaded in Saudi Arabia before huge crowds on Friday afternoons, in the public square, directly after prayer time has ceased.
Dhimmis, as Christians and Jews, have no inherent rights or status under the Shari’ah, being harbis, or enemy aliens, naturally at war with Islam. It is only by way of the jizyah, or yearly treaty of war tax, that these can qualify for temporary protection. Should a dhimmi lapse in protection, they can be killed on the spot and their property taken without recompense, according to Schacht. Further, any persons not Muslim or dhimmi are considered pagans and are to be instantly killed under classical shari’ah doctrine.
Conclusion
Even the simplest person can deduce that classical Islamic Shari’ah law cannot possibly fit into the modern world anywhere on the globe. But it is especially impossible to apply this system in America, the land that created modern religious freedom, and let millions escape oppression. Most alarming, the Islamic law does not change to fit into other cultures, but is always offered as a “perfect gift,” delivered at the edge of a sword.
Is it not the most obvious fact imaginable that American law is a thousand times fairer and safer than Shar’iah? Therefore, what kind of a mentality would want to force so much injustice, punishment and destruction upon the American people—in the name of God &¬† the “Religion of Peace”? That Rauf claims this antiquated, unsophisticated and brutal legal system agrees with American law and society says much more about his intentions for his Ground Zero mosque than it does any other topic he will ever discuss.
[a]This idea cannot help but evoke John’s description of the pre-incarnate Christic Logos (Word), “In the beginning was the Word, and the Word was with God, and the Word was God…No one has seen God at any time; the only begotten God who is in the bosom of the Father, He has explained Him…” (John 1:1; 18). Undoubtedly, such imagery influenced Muhammad’s fertile imagination when rendering the Qur’an.
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