Sunday, May 04, 2014

Crime and Punishment





Legislation, whether it is the word of an autocrat or the act of a parliament, is basically a manipulation of rights. A law requiring every citizen to pay ten percent of his income as tax, effectively takes away the right of each citizen to spend ten percent of his income according to his will and transfers it to government agencies. A person who is sentenced to five years imprisonment essentially loses his right of free movement and free speech for that period. The concept of democracy derived from ancient Greek literature and developed mostly in Europe concedes the unlimited authority of sovereign kings to bodies of elected lawmakers, leaving the electors just as subservient as before. And if someone commits a crime or is suspected of involvement in one, he or she immediately forfeits all his or her rights except the one to remain silent, if it is a right at all. Indeed, a total dismissal of right-manipulation would amount to social stagnation which has been obviated by the evolution of constitutional democracy which guarantees certain basic rights for individuals, subject to periodic amendments.
The Qur'an provides believers and nonbelievers alike with certain non-negotiable rights. These non-negotiable rights cannot be compared with constitutional rights as state constitutions are liable to amendment by some procedure or the other, while Qur'anic rights are permanent and inviolable in a true and absolute sense. The rulers are not permitted to legislate in contravention of these rights and if they do so they lose their mandate to rule. Even if the violation of these rights is not redressed in this world, the Qur'an promises that justice will be done on the Day of Judgment. However, in Islam also there are transient or situational rights. If a woman dies childless, her husband and brothers get shares in her legacy. But if she is succeeded by children then the brothers get nothing.

The notable non-negotiable rights which affect the social penal system are, inter alia, those relating to freedom of movement, retribution, compensation and pardon.


In Islamic jurisprudence, the State is responsible for apprehending criminals and exacting retribution or compensation on behalf of the aggrieved party or instituting punishment on behalf of God, but the right of retribution or pardon rests solely with the aggrieved party. The State is also responsible for ensuring that an innocent person is not punished or blamed. The emphasis on freedom of movement is so great that if one studies carefully the Qur'anic injunctions on crime and punishment it becomes apparent that imprisonment is not really an acceptable mode of punishment in Islam. The underlying philosophy can be summed up by saying: If people commit crimes, you may whip them, cut off their limbs, even take away their lives, but do not deprive them of their freedom. And this principle is consistently maintained in all its exhortations. These punishments, to a naïve observer may appear to be quite inhuman. But then the fact is that they were not instituted by a human at all. They were ordained by a Being that created all living beings, and has the eventual declared intention of destroying them. However, historic records indicate quite clearly that the implementation of these punitive measures invariably results in dramatic reduction of crime rate and thus the net measure of grief experienced by a community is reduced to a negligible amount. Moreover, the rules of evidence and conviction are so thorough, and the risk involved in reckless adjudication is so alarming that the possibility of irreversible damage to innocent individuals becomes minimal. Theoretically, in the Islamic system of justice it is not only the witnesses that are under oath to tell the truth, nothing but the truth; the judges are also under oath to do justice, nothing but justice. And the lawyers are also under oath to pursue facts and nothing but facts in the conduct of proceedings, and not to present false evidence or make false allegations. Perhaps, it would be a good idea if the latter oaths are also visibly and audibly taken in courtrooms at each session. Furthermore, until a minute before the administration of punishment, the culprit has the opportunity of regretting his conduct and offering compensation or begging mercy from the victim or the aggrieved party. If the criminal is arrogant enough to give a limb rather than own up a proven crime and make reparations for it then his undoing is by his own choice. Basically, every crime stems from its perpetrator having contempt for his victim and its effect can only be reversed by restoring the self-respect of the victim or the aggrieved party.
Most sociologists agree that in civilized communities, crime is not an entirely individual responsibility. In some way or the other, the whole community has to take a certain amount of blame. If only every individual in a community exercised his responsibilities to others, and took good care of those in need of attention -- physical, financial, material or psychological, then there would simply not be any crimes. Perhaps the best way of making the members of a community aware of their negligence is to subject them to the unsavory spectacle of public executions and other implementations of the ordained punishment. In this way it is not the state or government, but every member of the entire community that shares the guilt and agony of the punishment; and becomes aware or the need for action to eliminate the causes of crime. Open trial and open punishment is the ideal way to prevent the possibility of injustice or sadistic manipulation in prisons. Although it is a fact that the Qur'an allows the use of extreme forms of punishment with incisive physical and social impact, it is not necessary that these must be practiced thoughtlessly and indiscriminately or whimsically to satisfy the sadistic tendencies of certain individuals or to create political intimidation. Instead, the Qur'anic injunctions on punishment should be regarded as legislative limits; for example, the maximum punishment for theft can be the loss of a limb and not the loss of life under any circumstances. At the same time, it makes sense that in a community where police or an equivalent security arrangement does not exist, someone who catches a thief red handed would be well advised to chop off his hand if one does not want to be shot in the back as soon as the unrepentant robber gets an opportunity.


Law and morality are so closely intertwined in Islam that any attempt to separate the two strains the social fabric and produces violent reactions. Islamic logic also differs from Greek logic as it places ethical restraints on the length to which an argument can be extended. The holy Qur’an repeatedly admonishes against exceeding the limits (hudood) established by Allah e.g. killing someone for an act of theft for which the maximum punishment is the loss of a limb.


For purposes of the application of `Hudud' i.e. Qur'anic limiting punishments, guilt has to be proven by the sworn testimony of up to as many as four trustworthy eyewitnesses. The testimony of criminals or accomplices or circumstantial evidence does not suffice for conviction and someone who perjures himself may be barred from appearing as a witness for life. Moreover, even if a criminal escapes punishment, he knows exactly what he deserves, and each time he sees or hears about a public implementation of ordained punishments, his conscience is jolted. Similarly, in the Islamic system the criminal finds it extremely risky to conceal a crime by committing another, or to intimidate others by boasting about his crimes since there is no mercy after confession. The system appears to be designed to eliminate crimes and not criminals by putting everyone even slightly suspect of bad behavior into prison. Nor does it try to bring peace and tranquility to society by eliminating the victims by elaborate security arrangements for those who can afford it and ignoring the screams for help by those who can't. In psychological terms, the Qur'anic penal code and concept of divine punishment and reward lead people to associate crime with pain and humiliation both on an individual and collective scale while, at the same time, linking comfort and honor with acts of piety. The idea seems to be that initially the punishments would help to reform the society and the effect would be sustained by the promised rewards.


To tell the truth, the Islamic system of extreme punishments, in order to be effective, requires a certain amount of true Biblical heritage in the form of total commitment, strong sense of attachment, and spiritual significance of association. The underlying motivations can hardly be grasped by someone who has been educated in an insurance based culture where one turns a blind eye to the burglar so that one may buy with the insurance claim the latest model of the article being stolen. Hence, not surprisingly, many Muslim scholars regard insurance as being averse to the spirit of Islam. However, it is equally true that in communities where economic fortunes of large numbers of people are associated with the prevention and aftereffects of crime or accident, Insurance seems to be the only institution other than public representatives which has a genuine motive to check the rate of increase in crimes and accidents -- albeit only to the extent that insurance itself does not become superfluous.
The real conflict between Islamic and secular legal perceptions seems to lie in their treatment of rules of conduct. In the secular system criminal laws and rules of conduct are more or less clearly segregated; the breaking of law results in the suspension of basic rights and institution of prescribed punishment whereas a violation of rules of conduct can only be penalized by social pressures which don't seem to be effective in modern industrial cultures. In Islam, the distinctions between enforceable law and rules of conduct have become quite faint due to various scholarly edicts or "fatwa" pronounced over the centuries. Much dissent and discord has also been caused by scholarly legislation in not only Islam but also other religions. Fortunately in Islam the superior law exists in the Qur'an and rules of conduct can be formulated by popular or representative legislation. In doing so, the verses preceding and following the definitive verses should also be consulted for guidance. One example is given below:


5:38. And (as for) the man who steals and the woman who steals, cut off their hands as a punishment for what they have earned, an exemplary punishment from Allah; and Allah is Mighty, Wise.


5:39. But whoever repents after his iniquity and reforms (himself),  then surely Allah will turn to him (mercifully); surely Allah is Forgiving, Merciful.


5:40. Do you not know that Allah-- His is the kingdom of the heavens and the earth; He chastises whom He pleases; and forgives whom He pleases and Allah has power over all things.


The interesting question that needs to be pondered is what happens if a community of Muslims decides unanimously or by majority vote to structured punishments for crimes within the limits ordained by Allah. Surely, Allah is merciful and forgiving.

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