According to Islam, why is the criminal punished? What are the purposes of Punishment in Islam?
There have been various considerations regarding punishment throughout history; the purpose of punishments was determined based on these considerations. In the West, the purpose of the punishments in the past (until about the 18th century) was intimidation, revenge and denouncing. Burning, crucifixion, amputation, breaking bones, cauterizing with hot iron, etc were the kinds of punishment seen there in the past.
Besides, there was no conformity between the crime and the punishment in those eras. In the British Criminal Code, execution was applied for about 200 kinds of crime up to the 18th century. The French Criminal Code applied execution for 215 different types of crime. Most of these crimes were petty crimes.
In the course of time, individual revenge was replaced by the purpose of social and divine revenge. In social revenge, intimidation is prevalent; in divine revenge, the purpose is atonement. Since the 18th century, western thinkers have been struggling against the purpose of revenge in punishments and have been trying other purposes to replace it.
Besides, there was no conformity between the crime and the punishment in those eras. In the British Criminal Code, execution was applied for about 200 kinds of crime up to the 18th century. The French Criminal Code applied execution for 215 different types of crime. Most of these crimes were petty crimes.
In the course of time, individual revenge was replaced by the purpose of social and divine revenge. In social revenge, intimidation is prevalent; in divine revenge, the purpose is atonement. Since the 18th century, western thinkers have been struggling against the purpose of revenge in punishments and have been trying other purposes to replace it.
THE PURPOSES OF PUNISHMENT IN ISLAM
The aim of punishment in the Islamic Criminal Code is not to oppress, torture or take revenge from the criminal. For, Hz. Prophet (pbuh) was not sent to terrorize and tyrannize people; he was sent as mercy for all creatures.
According to what is understood from the religious resources (verses and hadiths) and the statements of mujtahids, the purposes of Islam in punishing the criminals are as follows:
1. Preventing crime in general
The application of punishment in the Islamic law aims to be an exemplary punishment that will deter committing crimes. That is, Islamic punishments have the quality of preventing crimes before they are committed and deterring people from committing crimes by warning them.
Therefore, in Islam, punishments are applied before the eye of the public. The application of punishments openly in the presence of the public is closely related to human psychology.
The purpose of being exemplary and deterrent is realized in the best way by denouncing the punishment and applying it in the presence of the public. Thus, the feelings of the people related to hating crimes and condemning them will always be kept alert. Nobody wants to be in the place of the criminal and to be despised in the presence of the public at that moment. It will prevent the tendency of the people toward crimes.
Therefore, in Islam, punishments are applied before the eye of the public. The application of punishments openly in the presence of the public is closely related to human psychology.
The purpose of being exemplary and deterrent is realized in the best way by denouncing the punishment and applying it in the presence of the public. Thus, the feelings of the people related to hating crimes and condemning them will always be kept alert. Nobody wants to be in the place of the criminal and to be despised in the presence of the public at that moment. It will prevent the tendency of the people toward crimes.
2. Preventing crime in particular
One of the purposes of punishment in Islam is to improve the criminal. The punishment is carried out in order to improve the ethics of the criminal and to chasten him so that he will not commit a crime again.
Punishment in Islam is like education of the child by his father or the treatment of the patient by the doctor. The purpose is not to oppress and torture or take revenge from the criminal.
Punishment in Islam is like education of the child by his father or the treatment of the patient by the doctor. The purpose is not to oppress and torture or take revenge from the criminal.
3. Atonement
Punishment in return for a crime is atonement (kaffarah), which is the necessity of absolute justice. Thus, the sufferer is satisfied and soothed; peace and order are maintained in the community. Therefore, the Messenger of Allah (pbuh) stated the following in a hadith:
"A punishment applied for the realization of justice on earth is better than morning rain for 30 days for the people of the earth."(Ibn Hanbal, Musnad, II / 402)
It is the necessity of justice to retaliate against somebody who does something bad. The issue is stated as follows in the Quran:
"The recompense for an injury is an injury equal thereto (in degree): but if a person forgives and makes reconciliation, his reward is due, from Allah: for (Allah) loveth not those who do wrong...."(ash-Shura, 26/40)
As it is seen, it is the necessity of justice to punish the criminal as much as he deserves. However, it is virtuous for the sufferer to forgive the criminal.
Mumathalah (equality) is necessary in punishment. That is, the punishment must be equal to and appropriate for the crime. If the punishment is severe compared to the crime, it will realize oppression and discontent, not justice, in the community. The atonement characteristic of the punishment is a great grace and mercy for the criminal. According to the view of the most of the scholars, the penalty of a crime paid in the world will atone for the crime; the criminal will not be punished in the hereafter due to that crime.
As a matter of fact, the Prophet (pbuh) stated the following:
Mumathalah (equality) is necessary in punishment. That is, the punishment must be equal to and appropriate for the crime. If the punishment is severe compared to the crime, it will realize oppression and discontent, not justice, in the community. The atonement characteristic of the punishment is a great grace and mercy for the criminal. According to the view of the most of the scholars, the penalty of a crime paid in the world will atone for the crime; the criminal will not be punished in the hereafter due to that crime.
As a matter of fact, the Prophet (pbuh) stated the following:
"When a person commits a crime and punished because of it, it is regarded his atonement."(Ömer Nasuhi Bilmen - Hukuki İslamiyye ve Istılahat-ı Fıkhiyye K., I / 33)
Since the purpose of punishment is improvement, it is better not apply the punishment if the criminal repents after he has committed the crime. For, the purpose of the punishment has occurred.
When a person who confessed to the Prophet (pbuh) that he had stolen, the Prophet said to him, "I do not think that you have stolen."(1)
Similarly, when Maiz, one of the Companions, confessed to the Messenger of Allah that he had committed fornication in repentance, the Messenger of Allah said to him,
When a person who confessed to the Prophet (pbuh) that he had stolen, the Prophet said to him, "I do not think that you have stolen."(1)
Similarly, when Maiz, one of the Companions, confessed to the Messenger of Allah that he had committed fornication in repentance, the Messenger of Allah said to him,
"Think well. You may have not committed fornication; you may have kissed or done something like that."
Thus, he tried to make Maiz withdraw his confession. However, when Maiz insisted that he had committed fornication, he was punished.(2)
It is necessary to state that in both cases mentioned above, the crime was not definite because nobody knew or saw that the crimes had been committed. The criminals repented and confessed their crimes. If they had not confessed, it would have been impossible to accuse them.
Therefore, when the Messenger of Allah (pbuh) saw that they had really repented for the crimes that they had committed, he did not want their crimes to be definite through their confession. He regarded it sufficient for them to repent and ask for forgiveness from Allah.
If the crime has become definite without the confession of the criminal due to the evidence and witnesses, the situation is different. The repentance of the criminal is not taken into consideration in that case.
In the application of hadd punishment, the interest of the community rather than the criminal is essential. No matter what the state of the criminal is, the punishment of the criminal is applied when the crime has become definite in order to prevent these kinds of severe crimes from spreading in the community and from causing mischief and discontent. However, qisas (retaliation) is excluded because in retaliation, the relatives of the person who was killed have the authority to forgive the killer. And this forgiveness is encouraged in the Quran.
Regarding the crimes that are called tazir and whose punishments are left to the judge to decide, the situation of the criminal is taken into consideration. If the judge is convinced that the criminal will improve, he can eliminate or mitigate the punishment. However, the interest of the community should also be taken into consideration while deciding.
It is necessary to state that in both cases mentioned above, the crime was not definite because nobody knew or saw that the crimes had been committed. The criminals repented and confessed their crimes. If they had not confessed, it would have been impossible to accuse them.
Therefore, when the Messenger of Allah (pbuh) saw that they had really repented for the crimes that they had committed, he did not want their crimes to be definite through their confession. He regarded it sufficient for them to repent and ask for forgiveness from Allah.
If the crime has become definite without the confession of the criminal due to the evidence and witnesses, the situation is different. The repentance of the criminal is not taken into consideration in that case.
In the application of hadd punishment, the interest of the community rather than the criminal is essential. No matter what the state of the criminal is, the punishment of the criminal is applied when the crime has become definite in order to prevent these kinds of severe crimes from spreading in the community and from causing mischief and discontent. However, qisas (retaliation) is excluded because in retaliation, the relatives of the person who was killed have the authority to forgive the killer. And this forgiveness is encouraged in the Quran.
Regarding the crimes that are called tazir and whose punishments are left to the judge to decide, the situation of the criminal is taken into consideration. If the judge is convinced that the criminal will improve, he can eliminate or mitigate the punishment. However, the interest of the community should also be taken into consideration while deciding.
Footnotes:
(1) Ahmad b. Hanbal, Baqi Musnad al-Ansar, 21480
(2) Muslim, Hudud, 22; ash-Shawkani, Naylul-Awtar, VII, 95,109; az-Zaylai, Nasbu'r-Raya, III, 314 etc.
(2) Muslim, Hudud, 22; ash-Shawkani, Naylul-Awtar, VII, 95,109; az-Zaylai, Nasbu'r-Raya, III, 314 etc.
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