Why is the guilty punished according to Islam?
In punishment, various viewpoints have been prevalent throughout the history and the goals of punishments have been determined in the light of those viewpoints. In the West, approximately until the 18th Century, the goal of punishments was just intimidation, revenge, and exposure. Burning, crucifying, amputation, bone breaking, burning with a hot iron bar, etc. were among the mostly seen ways of punishment.
Moreover, in those times, punishments were not suitable for crimes. The death penalty could sometimes be applied for even the simplest crimes. According to the British Criminal Code, up to 200 crimes were punished with the death penalty until the 18th Century. According to the French Criminal Code, on the other hand, 215 different crimes were punished with the death penalty. Furthermore, many of those were petty crimes.
Gradually, the aim of personal revenge was replaced by social and divine revenge. In social revenge, intimidation is sought; in divine revenge, the atonement of the crime. Since the 18th Century, thinkers in the West have struggled with the aim of revenge in punishments and tried to replace it with other aims.
Moreover, in those times, punishments were not suitable for crimes. The death penalty could sometimes be applied for even the simplest crimes. According to the British Criminal Code, up to 200 crimes were punished with the death penalty until the 18th Century. According to the French Criminal Code, on the other hand, 215 different crimes were punished with the death penalty. Furthermore, many of those were petty crimes.
Gradually, the aim of personal revenge was replaced by social and divine revenge. In social revenge, intimidation is sought; in divine revenge, the atonement of the crime. Since the 18th Century, thinkers in the West have struggled with the aim of revenge in punishments and tried to replace it with other aims.
AIMS OF PUNISHMENT IN ISLAM
In Islamic Jurisprudence, the aim of punishments is not to tyrannize over, to torture or to take revenge on the culprit; that is because Prophet Muhammad (peace and blessings be upon him) was not sent to terrorize or to oppress people, but was sent as a mercy to the worlds.
As is understood from religious pillars (Quranic verses and Hadiths) and from the expressions of mujtahids-Islamic scholars, the effects Islam aims at in punishments are as follows:
1. To prevent crime in general
In practicing punishments in Islamic Jurisprudence, the functions of serving as a lesson and of preventing committing crime are essential. In other words, Islamic punishments have such a nature as to prevent crimes before committed and to serve for others as a lesson so that their tendency to commit crime is broken.
For this reason, big punishments in Islam are carried out in public. It is closely concerned with human psychology that punishments are carried out openly in public.
The functions of serving as a lesson and of preventing crimes are achieved in the best way by carrying out the punishment in public. Thus, the communitys feelings of hatred for crimes and of blaming are always kept awake. Nobody wants to be like the culprit and to fall into such a shameful situation before the public. And this feeling breaks the tendency toward crimes.
2. Personal Prevention
In Islamic punishments, it is also aimed at the betterment of the culprit. Punishments are carried out to improve the morals of the culprit and to ameliorate him by training so that he will not commit crimes again.
In Islam, punishing is like a fathers training his child, or a doctors treating his patient; it is not to tyrannize over, to torture or to take revenge on the culprit.
3. Atonement
The punishment of the crime is atonement, which is the requisite for the absolute justice. Punishment provides absolute justice by getting the culprit to compensate for and to pay back the equivalent of the crime. The wronged party is thus satisfied and calmed down; security and peace are maintained in society. For this reason, Prophet Muhammad (PBUH) said in one of his Hadiths:
A punishment carried out in order to realize justice over earth is better for the people of earth than 30 mornings with rain.
Ibn Hanbal, Musnad, II, 402.
It is a requisite of justice to respond to a wrongdoer with the wrong he perpetrated. In Quran, this point is highlighted this way:
The recompense of an evil deed can only be an evil equal to it; but whoever pardons and makes reconciliation, his reward is due from God. Surely He does not love the wrongdoers.
(Ash-Shura Surah, 42:40)
As is seen, it is just to punish a wrongdoer according to the measure he deserves. However, it is a special virtue for the offended to forgive the culprit.
In punishment, fittingness is also required. In other words, the punishment given must be fit to and suitable for the crime committed. It would be a source of cruelty and unease in community for the punishment to be heavier in comparison to the crime, not of justice. It is also a great favor and mercy on the part of the culprit for the punishment to be atonement, because, according to many of Islamic scholars, the punishment of a crime suffered in the world covers the sins of this crime and lifts the punishment of this sin in the Hereafter.
About this topic, Prophet Muhammad (PBUH) said:
Whoever commits one of the crimes and gets its punishment, this is his atonement.
Ömer Nasuhi Bilmen - Hukuki İslamiyye ve Istılahat-ı Fıkhiyye K. C: 1, p. 33.
It is because the main aim in punishments is betterment that if the culprit shows regret having committed the crime, generally the punishment is not carried out. That is because in this situation the essential aim of punishment is realized.
Prophet Muhammad (PBUH) said to someone who himself came and confessed that he committed burglary: I do not think that you committed burglary. (1)
In the same way, when someone among the Companions named Maiz came to the Prophet and confessed with a deep remorse that he committed adultery, the Prophet said to him: Think carefully. You may not have committed adultery, may have just kissed or something like that. And he thus wanted him to withdraw his confession. However, Maiz insisted on his statement. And he was eventually sentenced to the punishment of adultery. (2)
Here I want to emphasize something; in both of these two instances, the crime is not certain, because there is no one who saw or knew that the crime was committed. The culprit himself confesses and declares his crime out of penitence. Without the declaration of his, it is not legally possible to attribute the crime to him.
For this reason, when he saw that they were remorseful for what they did, Prophet Muhammad (PBUH) did not want them to confess their crimes themselves and make them legally proven. He saw it sufficient for them just to repent and ask for forgiveness themselves.
However, in a case of crime, which is proven for sure with proofs and witnesses without the need for the culprits declaration, the situation is different. The culprits feelings of repentance are not important here.
For in punishments given to the crimes, whose retributions are certain according to the Sharia, the interests of the community are essential, more than those of the culprit. In order for such grave crimes not to proliferate in the community and not to cause mischief and unease, whatever the condition of the culprit, the punishment of the legally proven crime is carried out, except for atonement, though. That is because in atonement, the parents of the murdered have the authority to forgive the culprit. And in Quran, this forgiveness is encouraged.
However, in crimes whose punishments are left to the discretion of the judge, the condition of the culprit is essential. If the judge decides that the culprit shows signs of betterment, he may cancel or alleviate the punishment. Surely, the interests of the public must also be kept in mind.
Footnotes:
(1) Ahmet b. Hanbel, Baki Müs. Ensar, 21480
(2) Muslim, Hudûd, 22; ash-Shevkânî, Neylül-Evtâr, VII, 95,109; az-Zeylaî, Nasbu`r-Râye, III, 314 etc.
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