By Ibn ‘Ashur (d. 1973)
Translated by Mohamed El-Tahir El-Mesawi
Translated by Mohamed El-Tahir El-Mesawi
Taken from Ibn Ashur: Treatise on Maqasid Al-Shariah
Thus, the aim of the Sharī’ah with regard to the legislation of fixed
penalties (Ḥudūd), just retribution (Qiṣāṣ), discretionary penalties
(ta’zīr) and injury compensation (urūsh al-jināyāt) is to achieve the
following three objectives:
- To reform the criminal
- To satisfy the victim
- To deter the imitator of criminals
(1) The first objective, that is, reformation, refers to the highest
objective of the Sharī’ah, which is bringing reform (iṣlāḥ) to every
aspect of the daily lives of individuals comprising a society. This we
discussed in chapter 12 on the all-purpose principle of Islamic
legislation. Thus, God says: “Now as for the man who steals and the
woman who steals, cut off the hand of each of them in requital for what
they have done, as a deterrent ordained by God: for God is Almighty,
Wise” (5:38). Punishing the criminal aims at removing from his soul the
evil that incites him to commit crime. This evil mostly becomes more
deeply rooted in the criminal when the idea of committing a crime is
translated into practice. That is why God has followed the
implementation of the ḥadd with the phrase: “But as for him who repents
after having thus done wrong, and makes amends, behold, God will accept
his repentance” (5:39).
Ḥudūd constitute the maximum possible sentences, for they have been
instituted for the most serious crimes. By intensifying these prescribed
penalties, the aim of the Sharī’ah is to deter people and remove evil
from the offender. Accordingly, when it is proven that a crime has been
committed by mistake, the ḥadd punishment is waived. Similarly, if there
is the slightest doubt or uncertainty (shubuhah) that could be used in
favor of the offender, then the matter is considered on the same level
as a mistake, in the sense that Sharī’ah do not apply. Furthermore, if
it is revealed that the unintentional offense has been committed owing
to extreme negligence to take the necessary precautions, the negligent
person shall receive the appropriate disciplinary treatment.
(2) When seeking satisfaction for the victim, we must remember that
it is part of human nature to harbor rancor against aggressors and anger
against those who wrong us in error. These feelings often push people
to take vengeance against their aggressors in a way that always
transgresses the bounds of justice. This is because vengeance bursts out
of a passionate anger that usually affects people’s rational thinking
and blinds them to the light of justice. Thus, when the victim or his
relatives and defenders (awliyā’) are capable of retaliating, they will
soon do so; otherwise, they will conceal their wrath, thus awaiting the
first opportunity for revenge. It is against this that God has cautioned
us by saying: “but even so, let him not exceed the bounds of equity in
[retributive] killing” (17:33). Under these circumstances, revenge and
crime will never end and the social order of the community will never
settle on peace and stability. Therefore, it has been the purpose of the
Sharī’ah to undertake the task of satisfying the victim and putting an
end to the age-old practice of vengeance and counter-vengeance. Hence,
the Prophet said during the Farewell Pilgrimage (Ḥajjat al-Wadā‘)
“Abolished are also the blood-feuds of the period of pagan ignorance
(Jāhiliyyah).”
Likewise, the purpose of giving the victim fair satisfaction takes
into account the inclination for revenge that is rooted in human nature.
Accordingly, the Sharī’ah has given the relatives of a murder victim
(qatīl) the right of guiding the convicted offender (qātil), under the
supervision of the judge, by a rope in his hand to the place where just
retribution will be inflicted on him, which is known as qawad
(retaliation). This is meant to satisfy them to the same extent if they
were to take justice into their own hands.
The satisfaction of the victim is more important in the Sharī’ah than
the reformation of the offender. Therefore, it carries greater weight
when it is not possible to achieve both at the same time. An example is
qiṣāṣ, where the reformation of the criminal cannot be achieved, so
priority is given to the satisfaction of the victim or his relatives.
For this, there is no point in the well-known disagreement amongst the
scholars over the question of consent by the heirs entitled to exact
qiṣāṣ (awliyā’ al-dam) to a pardon and blood money instead of inflicting
retaliation, if the offender’s wealth is sufficient for that. In this
respect, Ashhab’s view that the murderer must be forced to pay the blood
money is more tenable, contrary to Ibn al-Qāsim’s opinion. That is why
they agreed that if some of the relatives of the victim forgive the
offender, qiṣāṣ is then cancelled. These factors, of course, do not
apply to killing in brigandage (ḥirābah) and assassination (ghīlah), as
we shall point out shortly.
(3) The third purpose, deterring imitators, is implied by God’s
saying in the Qur’an: “As for the adulteress and adulterer – flog each
of them with a hundred stripes, and let not compassion for them keep you
from [carrying out] this law of God, if you [truly] believe in God and
the Last Day; and let a group of the believers witness their
chastisement” (24:2). Thus, Ibn al-‘Arabī said in his book Aḥkām
al-Qur’an: “The real interpretation of this is that the execution of the
ḥadd deters the one on whom it is implemented, and those who attend and
witness it will learn a lesson from it and be deterred by it. Its story
will then be on everybody’s lips, thus warning those who come after.”
It thus reverts to the purpose of reforming the community as a whole.
This is because the execution of punishment according to established
rules discourages perverse people and criminals from satisfying their
devilish desires by committing crimes. Likewise, anything that acts as a
deterrent constitutes a punishment. However, deterring the general
public [other than the offender] must not transgress the limits of
justice. Therefore, it has been an aspect of the wisdom of the
Sharī’ahthat has laid down the punishment of the offender as a deterrent
to others without violating justice. Hence, the Sharī’ah policy in
instituting ḥudūd, qiṣāṣ and other types of penalties is meant to deter
people from taking criminals as models.
Nevertheless, a pardon (‘afw) by the victim under certain
circumstances does not defeat the purpose of deterrence, for it only
rarely happens, and therefore it cannot be taken as the main reason for
the offender to commit a crime. Consequently, we find that the Sharī’ah
does not take into consideration forgiveness in the crimes that do not
affect the right of a specific party, such as theft, the consumption of
intoxicants, and adultery, because these offences are a violation of the
very essence of legislation itself, and so too is brigandage (ḥirābah).
As for assassination, no pardon by the relatives of the victim is
accepted, owing to its hideousness. However, the repentance of the
brigand (muḥārib) before his arrest has been accepted out of concern for
peace and security and as a means of encouraging his companions to
follow his good example.
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ByAsadullah Ali Al-Andalusi
The punishments required in Islam for certain crimes are often considered "barbaric" by non-Muslims and liberal Muslims alike. However, I believe this is due primarily to a misunderstanding of what the punishments entail and what exactly is being punished.
For example, many consider the punishments for adultery to be extremely harsh (i.e. lashing and stoning), but what many people don't understand is that adultery is not the thing that is actually punished -- rather it's the public display of adultery. This is why four witnesses are required; especially since Islam prohibits entering someone's private property without permission.
In other words, for such a punishment to be enacted, you'd literally have to have illegal sexual intercourse in a public place (enough so that you'd be noticed in full detail by four people).
Now, there are those who will argue that even with such a clarification, the punishments are still "too harsh". Why lash an unmarried couple for public displays of fornication? Why stone a married person for the same? Why not just fine them or jail them for a short amount of time?
But these questions display a lack of moral integrity and virtue when it comes to the issue of public displays of adultery. We are not just talking about the act of illegal intercourse here, but two people having the audacity to make it public -- an open rebellion against the very foundations of society itself (i.e. the family). It is not some innocuous performance done out of ignorance, but a willing protest against all moral decency.
And it's far worse when a married person does it. Not only are they spitting on the institution of marriage itself, but spitting in the face of their own family and children. Adultery is already such a heinous crime that one wonders why someone would have the gall to advertise it to the world. Even murderers and thieves try not to be as conspicuous.
Hence why the punishments are so harsh, because the very act that is being punished is so extreme -- almost inconceivable.
Thus, I think there is a no more fitting statement than "they were asking for it", because when you don't even bother to hide such an indecency then you are literally asking for whatever punishment exist -- no matter whether you perceive it as lenient or harsh.
At that point, neither of these categories matter, because you have agreed to the punishment by virtue of your behavior.
----------
ByAsadullah Ali Al-Andalusi
The punishments required in Islam for certain crimes are often considered "barbaric" by non-Muslims and liberal Muslims alike. However, I believe this is due primarily to a misunderstanding of what the punishments entail and what exactly is being punished.
For example, many consider the punishments for adultery to be extremely harsh (i.e. lashing and stoning), but what many people don't understand is that adultery is not the thing that is actually punished -- rather it's the public display of adultery. This is why four witnesses are required; especially since Islam prohibits entering someone's private property without permission.
In other words, for such a punishment to be enacted, you'd literally have to have illegal sexual intercourse in a public place (enough so that you'd be noticed in full detail by four people).
Now, there are those who will argue that even with such a clarification, the punishments are still "too harsh". Why lash an unmarried couple for public displays of fornication? Why stone a married person for the same? Why not just fine them or jail them for a short amount of time?
But these questions display a lack of moral integrity and virtue when it comes to the issue of public displays of adultery. We are not just talking about the act of illegal intercourse here, but two people having the audacity to make it public -- an open rebellion against the very foundations of society itself (i.e. the family). It is not some innocuous performance done out of ignorance, but a willing protest against all moral decency.
And it's far worse when a married person does it. Not only are they spitting on the institution of marriage itself, but spitting in the face of their own family and children. Adultery is already such a heinous crime that one wonders why someone would have the gall to advertise it to the world. Even murderers and thieves try not to be as conspicuous.
Hence why the punishments are so harsh, because the very act that is being punished is so extreme -- almost inconceivable.
Thus, I think there is a no more fitting statement than "they were asking for it", because when you don't even bother to hide such an indecency then you are literally asking for whatever punishment exist -- no matter whether you perceive it as lenient or harsh.
At that point, neither of these categories matter, because you have agreed to the punishment by virtue of your behavior.
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