Laws on Crime
Laws on Crime
Penalties . Like the other facets of Muslim law, Muslim criminal law is derived from the Qur’an and the Sunnah. While the Qur’an includes few specific legal prescriptions (far fewer than the Torah), it does prescribe several specific punishments for crimes: capital punishment for murder (2:178 and 17:33) and armed robbery (5:34; compare 29:29); retribution for injuries, specifically the loss of eye, nose, ear, or tooth (5:45, which actually refers to the Torah, Exodus 21:23–25); amputation of the hand for theft (5:38); one hundred lashes for adultery and fornication (24:2); and eighty lashes for making a false accusation of adultery, along with the permanent loss of one’s credibility as a witness (24:4). These are called hadd (literally “limit”) penalties because they are prescribed for the transgression of the bounds set by God. In hadiths, they are considerably elaborated and modified. Thus, the penalty for adultery by married persons becomes death by stoning, as in the Torah (Leviticus 20:10 and Deuteronomy 22:22–24). Also, hadiths prescribe the death penalty for apostasy (renouncing one’s religious faith) and desertion from the army in wartime, neither of which has a particular punishment specified in the Qur’an, which reproves both acts and threatens one who commits them with punishment in the afterlife. Finally, hadiths also prescribe forty or eighty lashes for the consumption of alcohol, which the Qur’an also forbids (5:90–91) but without specifying any punishment. Beyond these fixed penalties, the law also ordained that a judge could inflict other punishments, including no more than ten lashes, banishment, imprisonment for certain offenses, and monetary penalties.
Application . Although the law apparently set down stern punishments for a variety of offenses, the application of these penalties was severely limited in several ways. The early Muslim state had little institutional apparatus, and consequently was not at all like a modern state. On the whole, the rulers cared most about political threats to themselves, so they tried to apply capital punishment for apostasy against political rebels. This interpretation was rejected by most jurists, unless a rebellion was accompanied by a severe deviation in matters of belief. Other criminal cases did not often come to court; they were dealt with informally by extended family groups or clans. In big cities, where recourse to the courts was convenient, cases were tried there more often than in rural areas. In these courts jurists applied exacting standards of evidence derived from hadiths, which made it extremely difficult to obtain a conviction. Any crime required the testimony of two witnesses who had seen the crime happen and whose statements concurred. If their statements did not tally, they risked the penalty for bearing false witness. In cases of adultery and fornication, four eyewitnesses were required. Because the Prophet advised that Muslims should not inflict punishments if doubts existed, religious courts generally exacted penalties only if the accused confessed, and it was specifically forbidden to use coercion or torture to obtain a confession. Thus, the religious courts became viewed as too lenient, and the government established another kind of court (mazalim) that meted out sundry punishments. The new courts were not necessarily Qur’anic, and did not follow the standards of evidence set by the Shari‘ah (sacred law). It has been said that in the entire history of the Ottoman empire only once was a man’s hand cut off as a penalty for robbery. Like other ancient and medieval legal systems, Muslim criminal law rarely punished crimes with imprisonment, although it was occasionally used. No doubt the maintenance of an institutionalized prison system was generally beyond the financial means of premodern states, and ancient and medieval law was economical in this regard. Muslim law sought instead to exact justice swiftly and immediately.
Sources
Mohamed S. El-Awa, Punishment in Islamic Law (Indianapolis: American Trust Publications, 1982).
M. Cherif Bassiouni, ed., The Islamic Criminal Justice System (London: Oceana Publications, 1982).
Irene Schneider, “Sidjn,” in Encyclopedia of Islam, CD-ROM version (Leiden: Brill, 1999).