The Islamic penal code has always been a controversial issue among Muslims and non-Muslims alike. Many people have attacked it claiming that it’s a severe brutal code. “Chopping off hands, stoning to death, beheading and flogging should not be the punishments imposed by righteous human beings,” this has always been the argument followed by many people in reaching the conclusion that Islam is not divine, but it’s a bloody devilish religion. In order to understand the penal code in Islam, let’s identify the deeds considered as crimes in the Islamic law, and explain the requirements of proving the crime, the punishments described for each of them, the limits of its implementation, and the wisdom behind prescribing such a punishment.
First it’s important to know that Prophet Muhammad said: “Three are not held accountable for what they do: the child until he reaches puberty, the sleeping person until he wakes up, and the insane person until he gets back his senses.” [Recorded by Ahmad, An-Nasā’ī and others]
The previous 3 categories of people are exempted from punishment. It’s an Islamic duty to take care of minors, those who are helpless and those who are mentally incompetent, and protect them.
In the Qur’an and Prophet Muhammad’s Sunnah, 6 crimes were defined, they are called “Hudud.” In this post, I shall deal with the first one of them, that is “Murder.”
Allah says in the Qur’an: “Believers, retribution is prescribed for you in cases of murder: the free man for the free man, the slave for the slave, the female for the female. If the killer is pardoned by the heir of the slain person, the agreed penalty should be equitably exacted and should be discharged in a handsome manner. This is an alleviation from your Lord and an act of grace. He who transgresses after this shall have a painful punishment. In [this law of] retribution there is life for you, O people of understanding, so that perhaps you will be mindful of God.” [The Qur’an (2:178-179)]
About this Prophet Muhammad P.B.U.H. said:
“Whoever has a killed relative should choose between one of two things, either to have the killer killed, or redeem the killer.” [Recorded by Bukhari and Muslim]
“Whoever has a killed relative should choose between one of three things, if he tries to deviate towards a fourth option, prevent him. He may request the killer’s death, pardon the killer for the sake of Allah’s reward, or pardon the killer and accept blood money.” [Recorded by Abu-Dāwud]
If an adult sane person fights with another person, and intentionally kills him or her; if the killer was caught red-handed, or the investigators were able to produce enough evidence to prove without any doubt that such a person did the crime, the judge grants the family of the victim one of three options:
- Reprieve the killer for the sake of Allah’s reward in the hereafter.
- Reprieve the killer and accept blood money (for simplicity, blood money is calculated to be the price of 35 Kg of silver).
- Request the killer’s death.
Although the understanding of the above verses was made clear in the prophet’s own words, but many Muslims are always bewildered by the wording of the first verse where Allah says: “the free man for the free man, the slave for the slave, the female for the female”, they say: “Why should an innocent free man, an innocent slave or an innocent woman be killed for the crimes of their families or tribes, justice says that only killers should be killed to protect the community from their crimes.” Absolutely true, only killers should be killed, and actually this is what the verse is saying, if you return to the reasons of revelation, you will be able to resolve the dilemma here. This verse was revealed at a time when there was some revengeful feud between 2 tribes, one of them transgressed the limits and decided to kill for every slave a free man and for every woman a man. The verse at hand was revealed to tell those transgressors that a free man should not be killed unless he has already killed another free man, a slave should not be killed unless he has already killed another slave, and a woman should not be killed unless she has killed another woman. Some jurists debated whether a free man should be killed for killing a slave and vice versa. The majority said ‘Yes,’ the killer should be killed to protect the community from his or her dangers, whether the killer was a free man, a slave or a woman. They took the following verse as their evidence:
“We prescribed for them in [the Torah]: a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and a wound for a wound. But, if anyone forgoes it, this shall be an expiation for him. Those who do not judge by what Allah has sent down are wrongdoers!” [The Qur’an (5:45)]
The verse is a reminder of Allah’s law in the Torah, the wording in this verse indicate that only the killer should be killed, and it added to this law a new clause, that’s the pardoning option in return for Allah’s reward. It ends with a warning against transgressing the limits by deviating towards a choice which Allah did not reveal, and this is exactly what Prophet Muhammad explained to his companions in the previously mentioned traditions.
If the family of the murdered person demands the death of the killer, the judge issues a death sentence. Jurists differed in determining the manner in which the killer should be killed. Some said that he or she should be killed exactly in the same manner which he utilized in killing his victim, but the majority said that this is against the prophet’s teachings when he said: “If you kill, make it a quick death”, so they decided to determine the fastest manner with which a person could be put to death. Decapitation was the choice of the big majority, a few others chose hanging. Electrocution, Gas chamber, lethal injection and firing squads were all rejected by Muslim scholars and considered excruciating.
Some people think that killers should not be killed, but should be imprisoned for life. They think that killing killers means that we are no better than them. Well, Islam gave the victim’s family the option to forgive and forgo, but in some cases forgiveness couldn’t be an option. Try to imagine that a criminal kidnaps your wife, rapes her and then puts a couple of bullets in her head, would you forgive him?! What if the victim was not your wife but your daughter?! Some crimes could not be forgiven and the victim’s family members could never find any comfort before the person who has done such a crime receives the proper punishment which he deserves. No father can live normally knowing that the rapist and murderer of his daughter still lives, so who exactly are you punishing here?! If you say that he is in prison, this will be of no consolation whatsoever. We have seen men who committed crimes and entered prison just to kill the murderer of their children, so what you are promoting is nothing but more crimes. Punishing the criminals with what they deserve is not against humanity, although we all find it repulsive but actually it saves more lives than it takes.
When any person sees another being punished, he forgets the deed that resulted in the punishment. For example, if you see a death penalty being applied on a convicted criminal, there is no doubt that when you see him or her being tied helpless and led to the place where the penalty shall be applied, you pity him and wish that the procedures would be stopped. But if you remember that this convict shot dead another soul for the purpose of steeling the victim’s money and gambling with it, if you look at the victim’s orphaned children and widowed wife, if you look at his grieving mother or father, etc., you won’t but approve to the application of the death penalty, set aside the chance that you could be the victim’s son, daughter, father, mother, wife, etc… All kinds of punishment are brutal, but to be fair and reasonable, we must think of the criminal’s deed and its consequences like we think of the punishment applied. Punishments are essential for protecting those who are innocent and the whole community from larger damages. In other words they have a twofold purpose, the first is to deter all people from committing any crimes, and the second is to purify the community from criminals and the corruption they disseminate. The reader here should know perfectly well that no punishment is applied on those who were impelled like being in a state of self defense, or defending others against an assault.
Written By: Ehab Shawky