الجمعة , نوفمبر 16 2018
الرئيسية / English / A brief overview of some of penal jurisprudence: between mechanisms, aims and purposes

A brief overview of some of penal jurisprudence: between mechanisms, aims and purposes

A brief overview of some of penal jurisprudence:

between mechanisms, aims and purposes

by H.E Sayyed Ali Al-Amine

It is noticed from the evidences of the law of punishments , that they were legislated to safeguard the community, preserve the rights and ward off causes of major and grave corruptions resulting from committing actions that lead up to such punishments, as stated in the Holy Qur’an: 

 “And There is (preservation of) life for you in  retribution, O you  possessors of intellects [understanding], that you may become pious.” (Qura’n 2:179)

Religious jurisprudents classified these punishments as: Capital punishments (or prescribed punishments) and discretionary punishments.

Capital punishments are fixed and predetermined by the Law, whereas discretionary punishments are not predetermined; neither are their limits  set in advance. They are left for the judgement of the judge and his assessment.

Several jurisprudents stipulate that discretionary punishments provided should not exceed the limits of prescribed punishments, and should be less in proportion. 

Stoning punishment

Stoning is inflicted upon married adulterous men and women. It was not mentioned in the Holy Qura’n which stated flogging as a punishment against them without detailing at their marital status, as shown by God the Almighty’s words:

“The adulterer and the adulteress, flog each one of them (with) a hundred stripes and let no compassion move you (in their case), in a matter prescribed by God, if ye believe in God and the Resurrection Day. And let part of believers witness their punishment.”

Also as it appears in Jesus Christ statement in this regard in the Holy Bible “He who is without sin among you, let him be the first to throw a stone at her.”, the existence of stoning punishment in the  former legislations, as  mentioned in the Old Testament’s book of Deuteronomy 22:21:

“..  they shall bring out the girl to the doorway of her father’s house, and the men of her city shall stone her to death because she has committed an act of folly in Israel by playing the harlot in her father’s house”

 In some of  the Sunnah and biographical narratives, there are specific accounts telling about stoning punishment applying at the time of  Messenger of God -peace be upon him-and as well as in the era of the Caliphs, God bless them. Several theological scholars claim that there was consensus on its occurrence, while several others deny it.

Burning to Death

Burning to death is amongst punishments not mentioned by the Holy Qura’n but rather in some  sunnah narratives in  particular cases. 

The Old Testament includes evidences that the ancient civilizations used fire for retribution purposes, by burning those who were sentenced to death. This practice persisted until the middle ages.

The Old Testament’s religious laws ordered to burn alive the man who would marry both a woman and her mother, and the adulterous daughter of a priest.

“‘If a man marries both a woman and her mother, it is wicked. Both he and they must be burned in fire, so that no wickedness will be among you.(Leviticus 20)

 And in Leviticus 21:9  “And the daughter of any priest, if she makes profane of herself by playing the whore, she profaneth her father: she shall be burnt with fire.”

But can any punishment which is not mentioned in the Qura’n, such as stoning and others inflicted upon the converted from his religion, be adopted as permanent legislations to these punishments? Can they be considered as provisional measures adopted by the judge based on specific circumstances and causes, and thus be discarded when the motives cease to exist?

Hence, are these punishments classified as discretionary punishments and left to the assessment of the judge, as mentioned before?

In order to answer these questions, discussions should consider the means of enforcement and the way of execution of the punishments and wether they should, in turn, be either adopted or discarded in favor of the techniques and ways to achieve that purpose.

Accordingly, several scholars discussed two topics at length in the book of punishments and penal system:

First : Whether, or not, the punishment should be confined to what was mentioned in texts.

Second: Methods of implementation.

Among those, there are scholars who choose not to be bound by such punishments mentioned in texts, taking into account the goals of inflicting them.

Moreover, they argue that the collected proofs, didn’t single out such punishments,or restrict penalties to them, when they were quoted, but rather promoted them as several among other restraining tools, instead of deterrence being restricted to these tools.

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They, also, argue that the collected proofs, didn’t single out such punishments nor restrict penalties to them, when they were quoted, but rather depended on them as a tool of deterrence by itself. 

For these reasons, punishable acts were not restricted to what was mentioned in  texts. They were mentioned as major causes. Subsequently, other acts were also eligible to discretionary punishments.

The same school of thought applies to the discussion of punishments. If there were other punishments which prove deterrent, there is no reason to be restricted to what was mentioned in The Holy verses.

Therefore, the fundamental purposes of punishments in  Law are deterrence, as well as the actualization  of discipline. Besides, the significance of punishment in Islam is not similar, in every aspect, to the designated obligatory acts of worship and the other practices emphatically stated by God, his Prophet and the scholars and to which Muslims should abide literally.

The capital punishments (prescribed) do not differ from discretionary punishments in terms of purposes and aims. As discretionary punishments were left to the evaluation of the judge regarding deterrence, then why wouldn’t it  apply to capital punishments considering their applications, purposes and means of execution. Strictly categorizing and naming punishments as discretionary and capital can’t imply an essential difference between them, with respect to purposes and aims.

The Prophet -peace and blessings be upon him and his family- said in a Hadith, “God has ordained kindness and mercy in everything.  If the killing (of animals) is to be done, do it in the best manner, and when you slaughter, do it in the best manner and do sharpen your knife, and do put the animal at ease.”[8]

From this Hadith, we can override any provided evidence of releasing the methods of enforcement to the sword, stoning and burning, to other better and kinder ways.

Also, by this Hadith, we can surpass any allusion to restricting punishment to a certain method and proportion through the general concept that is set in the phrase “God has ordained kindness (and mercy) in everything”

This general concept applies to the prescribed punishments upon banditry (armed robbery), which include execution, crucifixion and amputation of limbs, as stated in the verses:

“The recompense of those who wage war against God Almighty and His Messenger and strive after corruption in the land, that they be killed or crucified or have their hands and feet on alternate sides cut off, or to be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter.”

And these are kinds of punishments that were not limited and mentioned only in the holy Qura’n but also in the Old Testament:  In  Samuel 21:9 :

 (Then he gave them into the hands of the Gibeonites, and they crucified them in the mountain before the Lord, so that the seven of them fell together; and they were put to death on the first days of harvest, at the beginning of barley harvest.)

And in  Samuel 12:4 :

(Then David commanded the young men, and they killed them and cut off their hands and feet and hanged them up at the pool in Hebron.)

Between brigand (armed bandit) and war captives

Religious Scholars define a bandit as someone who takes up arms and assaults people by killing and robbery.  He terrorizes innocent people. He obstructs roads, and destabilizes and disrupts security in the community and seeks corruption in the land. This definition is the closest to the definition of a terrorist in modern  politics.

A bandit is judged and ruled and defined in a different manner than that of war captives as will be shown later.

And it is not concluded from the proofs of the punishment upon banditry, that they are limited by quantity and quality to the mentioned mechanisms, but can be surpassed to what achieves the goal of its legislation: deterrence by means of death penalty. Some texts mention that the bandit can be killed only if he kills and not in all cases. Hence the allusion to  ignore nominal options mentioned in the verse .

 The Bandit’s Verse implies, that it is in the role of showing and demonstrating the deserve of punishment and not in the role of showing an obligatory way of executing to the mentioned techniques, because sometimes the methods might be mentioned to show more deterrence and severity in punishment in order to achieve avoidance of this heinous crime, and not in the role of showing an obligatory fulfillment according to the  mentioned verse.

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Anyhow, the verse doesn’t address the captives of war and other innocent people who are not mentioned in it, where God said in the Qura’n “And they feed, for the love of God Almighty, the indigent, the orphan, and the captive”, and the Prophet says in Hadith: (God’s wrath is huge upon those who oppress people who have no supporter but God Almighty, and the most immoral oppression is one which inflicted on submissive people), and God Almighty also said:“ if anyone killed a soul unless for a soul, or killed (and) to spread corruption on earth – it would be as if he killed all mankind”, and which indicates that killing captives war and innocent people and torturing them are acts of oppression strictly prohibited by islamic law.(Sharia = Law).

The Prophet’s – peace be upon him- biography mentions that he pardoned the captives of ” Badr” battle, who  were Polytheists. This conduct was in line with the choices suggested by the Holy Qura’n with respect to the fate of war captives. The Qura’nic verse provides alternatives: Either freeing the captives for favor and bounteous or for a ransom, as said by God in Quran: “Therefore, when ye meet (in battle) the infidels (who assault you), aim at a deadly target until when you have subjugated them, then uphold the bonds; (i.e., take them captives) then (it is) either being bounteous (i.e., “showing” bounty by setting them free) hereafter (to them), or (exacting) ransom, until the war lays down its encumbrances.” 

The previously mentioned Hadith: [God has ordained kindness (and mercy) upon everything, so  If the killing  is to be done, do it in the merciest manner, and when you slaughter (animals), do it in the merciest  manner by sharpening the knife, and putting the animal at ease], explains what the Prophet said to Abu Jahel in Mecca “I have introduced slaughter to you” when some ignorants threw animal parts on the Prophet.

 This remark referred to Islam’s introduction of healthy and correct methods of slaughtering animals fit for human consumption. “Jahilees” (Arab pagans before islam) used to eat animals which have been strangled, killed by a blow, fallen to their death or gored.

 The people of Mecca didn’t know how to slaughter an animal. And the prophet was by no means threatening them by his remark, as some had interpreted his words. Mecca was the home of the Islamic call and the Prophet wasn’t in a position that allowed him to threaten its people by war and slaughter.

 However, slaughter was mentioned as a punishment in the Bible, Luke 19:27:

“As for those enemies of mine, who did not want me to reign over them, bring them here and slay them in front of me.”

Similarity in punishment

What has been mentioned in Surat al- Baqara [So whoever has assaulted you, then assault him in the same way that he has assaulted you. And fear Allah and know that Allah is with those who fear Him], and in Surat al Nahel: [And if you punish , punish with an equivalent of that with which you were harmed. But if you are patient – it is better for those who are patient], don’t authorize responding to an aggression or a punishment in a similar manner.

The response to an aggression is not achieved by waging a similar act but through retribution. However, the same word was used in the verse to describe both acts for metaphorical reasons only, according to scholars in rhetoric.

The statement in the two verses identifies the acts eligible for punishment but it doesn’t limit the punishments to what was mentioned in them. For example, if an aggressor mutilated a body, then his should not be treated likewise. In general, punishing the aggressor is governed by guidelines that should not be ignored. 

Elaborating on the topics discussed throughout the article in order to either ratify or revoke them is the ultimate responsibility of  jurisprudent studies and researches. And, God the Almighty knows best.