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Dr.

Ram Manohar Lohiya National Law University


Lucknow

Subject: World Legal Systems

Topic: A Comparative Analysis of Punishments Awarded in Islamic


Legal System and Western Legal System

Submitted to: Submitted by:


Dr. Shashank Shekhar Shalini Dwivedi
(Assistant Professor Law) Roll. No. 121
Section - B
Semester- VIIIth

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Acknowledgement

I take this opportunity to express my profound gratitude and deep regards to my Assistant

Professor Dr. Shashank Shekhar for his exemplary guidance, monitoring and constant

encouragement to give shape to this project. The blessing, help and guidance given by him time

to time shall carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to my respected seniors who

share their cordial support, valuable information and guidance, which helped me in completing

this task through various stages.

Lastly, I thank the almighty, my parents, brother, sisters and friends for their constant

encouragement without which this assignment would not have been possible.

Shalini

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Table of Content
1. Introduction
2. Theories of Punishment
3. Object of Punishment in Islam
4. Victim Rights in Islam and Western Legal Systems
5. Encounter between Islamic legal system and Western legal system
6. Conclusion
7. Bibliography

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Introduction
The unwanted and unpleasant imposition of something upon a person or group of persons by a
competent authority because of their unacceptable behavior to the authority is known as
punishment. There must be an authority behind the imposition of punishment. Inflicting
something upon a person without competent authority is not punishment. It may be either
revenge or something else. All the schools of thought provide justifications for punishment. The
basic concepts for the justification of punishment are retribution, which is the equal requital for
the harm caused, the deterrence to prevent others to commit the same harmful acts, the
rehabilitation and the incapacitation of the wrongdoer from committing the same crime again.
These justifications are provided by different law schools with a different approach for achieving
the same desired objectives. For example the incapacitation, in western law includes the
imprisonment or isolation of the victim while in the Islamic law the removal of hand in cases of
theft, have the objective to make the wrongdoer incapable of committing the crime again2.
However the Islamic law and the western law schools are not always at the same page regarding
the object of punishment. They may vary and thus produces contrasting effects on the society.
Punishments are justified by four main objects namely:

i. Retribution, which is the equal requital for the injured party,

ii. Deterrence for other ill-minded people from committing crimes,

iii. Rehabilitation and

iv. Incapacitation, which is to make the victim of punishment incapable of committing the same
crime again like removal of hand in cases of theft or isolation of criminal.

Theories of Punishment:
The theories of punishment which are actually the justification for the imposition of punishments
are classified into four main headings. These include;

Retributive theory of punishment: According to this theory the offender should be suffered in
proportion to the harm caused to aggrieved party by him. Usually in criminal activities the
wrongdoer gets some benefit from incurring loss to the victim. Therefore, the retributive theory
aims to rebalance the benefit gained by the offender by ensuring that the offender should also be
suffered.

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Deterrent theory of punishment: The object of this theory is to prevent the commission of
crime by imposing severe kind of punishment. The aim of the punishment should be to deter, the
ex-convict from reoffending and also, those people who are evil-minded. This theory supports
the imposition of exemplary punishment on the offender to make the commission of crime a bad
bargain for the offenders.

Reformative theory of punishment: This theory of punishment states that the object of
punishment should be the moral reform of the criminal and not to wreak vengeance. According
to this theory crime is a disease, it should be diagnosed properly like all other diseases and the
offender should be given proper treatment to cure the disease.

Preventive theory of punishment: This theory aims to prevent the repetition of the crime by
the offender. According to this theory punishment should be of such a nature to make the
criminal incapable of committing the same crime again. Penalties like imprisonment, death, exile
or imputation of hand are awarded to incapacitate the offender.

Object of Punishment in Islam


The main object of punishment in Islam is to prevent the commission of crime. For this purpose
Islam provides a system of imposing harsh punishment on the criminals. However, the procedure
to be followed for the conviction is much more difficult. The reason is that the Prophet (S.A.W)
has given preference to the non-conviction of an innocent man over convicting criminals. The
punishment may or may not be proportional to the crime committed, as proportional punishment
will require the evaluation of certain complex factors, like motive behind the commission or the
circumstances in which the crime has been committed, which a judge of ordinary human prudent
is incapable of evaluating efficiently. Moreover, penalties awarded in Islam are not punishments.
These penalties are known as Hadoods which means boundaries. It signifies that the punishment
in Islam is regulative in nature. Every person has certain rights and obligations which must be
respected by others. For this purpose Islam has advised to observe certain boundaries and
limitations in order to maintain peace in the society. Liabilities are incurred upon the person who
crosses these boundaries.

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Similarly Islamic law educates the people about the outcome of the punishment and thus
prevents and deters them from committing the crimes. The Quran describe the Hadoods as
exemplary punishments from God. It means that these penalties imposed upon the person are
exemplary in nature. They become examples for those who have criminal mentality. The like-
minded criminals become aware of the fact that committing crime is not worthy business.

In Islamic law criminals are punished for committing crimes. However, the provision for the
rehabilitation also exists. According to Islamic law the reformation is either before commission
of crime so that the criminal may not commit the crime or it should be after punishing the
criminal. Once the criminal is punished for his crime he should be treated like innocent people.
The double standard for the ex-convict is forbidden in Islam. Society is the best place for the
reformation of the criminals after being punished. Keeping the criminals in prisons, which is the
absolute community of criminals, will enhance the criminal mentality rather than the
reformation. That’s the reason why Islamic law does not prefer imprisonment of criminals.

Another object of punishment in Islamic law is Qisas (retribution). When a person causes injury
to another person, the other has a right of equal requital. This right solely belongs to the party
being injured. There are two conditions for retribution under Islamic law. One condition is that
the victim seeks punishment for the wrongdoer. The other is that the victim demand
compensation for the loss or he may even forgive the offender, however, if he seeks
compensation it must not be more than the loss incurred. It means that the object of Qisas is not
vengeance but reconciliation and thus punishment can be avoided under Qisas.

Victim Rights in Islam and Western Legal Systems


1. Individual and society as victim- While it is true that crimes committed against an individual
usually affect society as well, in many cases it is the victims whose rights are directly violated.
Since they suffer directly from the crime, they should have a role in the process of ‘punishment’
or ‘pardoning’, a process which concerns them, both physically and emotionally, at least as much
as it concerns society. In modern Western legal systems, consideration of victims’ rights is a
separate procedure from the punishment process. But a legal system that aims to compensate
victim’s needs to consider ‘emotional’ as well as ‘material’ suffering.

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2. Offender and victim- The concept of victim involvement is well established in the Islamic
system, but is relatively new in the West and has not yet been systematically worked out. Until
the 1990s, Western legal systems were primarily concerned with the rights of suspects and
offenders. Since then, attention has increasingly been drawn to direct involvement of victims. A
revised and strengthened Victim’s Charter was published in 1996 along with Guidance to
Services from the Association of Chief Officers of Probation. It envisages consultation of the
victims before decisions are made about release conditions of offenders serving long sentences.
Some argued that providing information to victims about release plans for offenders could open
the latter to (possibly violent) reprisal and in any case, had the offender not been punished
already? On the victims’ side, Nettleton et al. noted that: ‘... it was not uncommon for victims of
serious offences to move house, even moving to a completely new area, on hearing that an
offender was likely to be allowed to resettle in their mutual home area.’ In such a case the law
effectively allows an offender to once more offend against the same victim.

3. Crimes committed against individuals and society-: Every crime which harms an individual
may also harm the society. Depending on the level of injury to the individual or society, the
punishment in the Islamic legal system is classified under three broad categories as hadd, tazir
and qisas or diyya.

3. 1. Hadd, (‘limit’, ‘restrictive ordinance’) refers to the five offences of zina (‘fornication’ or
‘adultery’), ‘false accusation, ‘wine-drinking’, ‘theft’ and ‘highway robbery’ for which fixed
penalties are laid down in the Sharia. Such acts are essentially regarded as crimes against God.
The punishment prescribed by the Law cannot be reduced or increased even in response to the
promptings of compassion.

3. 2. Tazir is a discretionary punishment aimed at deterrence and, where that is appropriate,


reform of the offender.

3. 3. Qisas is a divine ordinance restricting retribution to parity with the crime (life for life, injury
for injury, etc.). Right of retribution may be waived in favor of blood-money or diyya; further,
even this compensation may be waived by the victim in favor of outright forgiveness. Yusuf Ali
states that the translation ‘retaliation’ for qisas is incorrect. Retaliation carries the sense of
returning evil for evil, which is what happened in the blood-feuds of the pre-Islamic period: the

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crime and its consequences were kept going by the feuds, not resolved and put an end to. Qisas
means that one who has committed a particular crime may be lawfully punished in the same way
and to the same degree as his crime, unless the victim (or representative of the victim) accepts
compensation, or chooses outright forgiveness. Whether retribution or forgiveness is chosen, the
aim is to close the circle on the crime, and not to let it persist.

4. The involvement of the victim in the punishment process-: Of the three choices open to the
victim, retribution, compensation, outright forgiveness, the Qur’an commends the Muslims to
agree a settlement or to forgive the offender. The injured party (plaintiff or victim’s next of kin)
is permitted to pardon the culprit altogether or to make a ‘settlement’ (sulh) with him, but
retribution remains a legal right.

Western discussions of qisas translate it as retaliation, which connotes vindictiveness or revenge


rather than redress of a wrong by equalizing the harm.
The Qur’an in this matter continues the tradition of the Judaeo-Christian teachings concerning
law of eye for an eye, tooth for a tooth. As we noted, this law forbids the victim or victim’s
family to demand more in punishment than was suffered. This practice proved its effectiveness
in preserving social order in the early period of Islam when there was no organized system of
criminal justice and penalties were carried out by the victim or victim’s family rather than by
institutions and their official personnel.

One of the aims of qisas is to limit the consequences of certain categories of wrongdoing.
Furthermore, some provisions in the Qur’an indicate that the retributive punishment must be
inflicted in the manner least likely to aggravate the situation. The principle satisfies the general
human need to have justice done on the perpetrator of crime while precluding unnecessary harm.
That general human need can also be satisfied by the state or community acting for and on behalf
of the victim, as most contemporary systems of criminal justice aspires to do.

The alternative penalty called diyya (or compensation) to be paid by the wrong-doer or his
family to the victim or his/her family. Diyya is payable in certain cases of homicide and bodily
harm upon a scale proportionate to the degree of incapacity or injury caused. The principle of
diyya finds analogous expression in the contemporary science of victimology, whereby
compensation emphasizes decriminalization of the act and compensation of the victim as an

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alternative to the traditional punishment of incarceration. As
between qisas and diyya, the Quran clearly commends the latter and forgiveness. The preference
illustrates the bond of continuity between temporal law and religion since the forgiver will be
rewarded in heaven, which, for a Muslim, is a much greater reward than any other. Thus, the
combination of diyya and forgiveness produces a powerful material and spiritual inducement to
forgo retribution. When the victim has the right and the choice to demand punishment or pardon
the offender, in many cases, the victim chooses to forgive. One of the reasons behind this
preference is that the victim believes that he will be rewarded by the God for his forgiveness.

Finally, critics of Islam wrongly imagine that punishments must be inflicted every day and on a
mass scale. They also fancy that Islamic societies daily witness flogging, hand-cutting and
stoning to death. The fact is that such deterrent punishments have been executed very rarely. For
example, the punishment for theft was carried out only six times over a period of four hundred
years-clear proof that such punishment was primarily meant to prevent crime.

5. The effects of the involvement of the victim -: The systematic involvement of the victim in
the punishment process is unique to Islam. It makes two important contributions in the criminal
justice field. Firstly, involvement of the victim appeases the victim who otherwise feels shunned
or ignored by the legal system. It is the victim who suffers from the crime first and therefore
must have a say in the punishment or pardoning of the offender.

Secondly, the involvement of the victim in the punishment process may also have a deterrent
effect on likely offenders. Some offenders may be happy to commit certain acts and face the
legal punishment which sometimes, for them, may be a very short imprisonment. But if they
believe that their victim(s) might have a say in the punishment which they face, this may deter
them. We may also add, here, the spiritual and moral force of forgiveness, if that option is
chosen by the victim or victim’s party, in inwardly reforming the offender through practical
demonstration of unselfishness.

6. Forgiveness as an option-: There are many verses in the New Testament which urge, if not
quite require, the victim to forgive the offender. ‘But I tell you who hear me: Love your enemies,
do good to those who hate you, bless those who curse you, pray for those who ill-treat you. If

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someone strikes you on one cheek, turn him the other also. If someone takes your cloak, do not
stop him taking your tunic’.

By contrast, the Qur’an commends but does not require the victim to forgive the aggressor: ‘O
you who believe! The law of equality is prescribed to you in cases of murder; the free for the
free, the slave for the slave, the women for the women, but if a remission is made by the brother
of the slain, then grant any reasonable demand and compensate him with handsome gratitude.
This is a concession and a mercy from your Lord. After this whoever exceeds the limits shall be
in grave chastisement.’

The option to forgive is a right that belongs to the victim, not to the court. Most legal systems, if
not all, do countenance, for particular reasons and in different ways, a reduction or even
suspension of punishment. My argument, based upon the Qur’an, is that, just as victims may not
demand a punishment greater than is prescribed by law, so too the court may not deny their right
to either reduce the punishment prescribed or forgive the crime outright.

The New Testament, as we saw, requires Christians to forgive; no other option is sanctioned by
the religion-not retribution, nor compensation-only forgiveness. In a famous text the ancient lex
talionis is almost explicitly abrogated: ‘you have heard that it was said, “An eye for an eye and
tooth for a tooth.” But now I tell you: do not take revenge on someone who wrongs you. If
anyone slaps you on the right cheek, let him slap your left cheek too. And if someone takes you
to court to sue for your shirt let him have your coat as well.

Is this a sustainable way for society to deal with crime, or to restore the moral and emotional
order which crime violates? Legal punishment has its root in the natural impulse to revenge a
wrong suffered. The impulse is gratified through retaliation by or on behalf of the victim. Later,
this retaliation is taken on by the state on behalf of society in general and the victim in particular.
Indeed, it has been argued that the state’s assumption of the function of revenge is what
constituted the beginning of criminal law.

Requiring the victim to forgive the aggressor outright without the option of a measured, legally
defined, retribution goes against human nature. It denies a vital need, individual and collective,
for redress which has a deterrent function as well as a role in restoring a violated moral and

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emotional equilibrium. In sum, the human need for redress should not be left out any more than
the human desire to forgive should be left out.

Encounter between Islamic legal system and Western legal


system
The Islamic legal system as compare to the western legal system provides a peaceful and cleaner
society. Western laws where the ethical norms of the society are always violated for example in
Norway and Sweden homosexuality and lesbianism is not a crime.

Similarly Spain has passed a bill for legalizing adultery. Adultery will not be considered as
crime. In contrast to the immoral and un-ethical laws of west, Islam provides a system based on
natural and divine law where the norms and ethical values are highly respected. The deterrent
punishment of Islamic law ensures greater peace in society. This is because of the Shariah laws
applied in Saudi Arabia that the crime rate is negligible i.e. one murder in one year.

One can find unique characteristic of Islamic law that shows a remarkable difference from the
western law. These unique salient features of Shariah law shows the significance of Islamic law
over the western legal system.

One of the unique features of Shariah law is that there is no rule for imprisoning the offender.
The imprisonment is a disapproved kind punishment in Islamic legal system. There are several
reasons for avoiding imprisonment of the offender. The main objective for awarding
imprisonment is the reformation of the offender but the results produced by imprisoning the
wrongdoer is contrary to what the law seeks to achieve through imprisonment. The reason is that
society is the best place for reformation of criminals as compare to the prisons which is a
community of criminals. The criminals in prison do not feel shame on their crimes instead they
feel proud to boost their stories of crimes in front of other offenders. Moreover, offenders
become more skilful in committing crime after release.

Another contradiction between Islamic legal system and western legal system is treatment with
the ex-convict. The treatment with the ex-convict plays a vital role in the reformation of the
offender. However, the West’s contemptuous treatment with the ex-convict prohibits him from

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rehabilitation. In most of the western legal systems an ex-convict is deprived of contesting
elections. Moreover, even the ex-convicts are deprived of casting votes. Contrary to this, Islamic
legal system highly disapproves such kind of treatment with the ex-convict. The conviction of
the offender should not become a permanent stigma on his character. Once the offender is
punished for his crime he becomes innocent. He must be treated like he never committed that
crime. The conviction should not become an obstacle in his social and economic progress. This
kind of treatment with ex-convict plays a greater in the reformation of the offender. The Prophet
(PBUH) has forbidden his companions from calling bad names to two Sahabis, who have
confessed the sin of adultery and were stoned to death.

Similarly Islam provides a system of equality. Discrimination between rich and poor in awarding
punishment is prohibited. In order to avoid the discrimination Islam provide a legal system
which is lacking of imposing any monetary fine or penalty. Such equality before law has the
same deterrent effect on both the rich and the poor. On contrary to the western legal system
where the offenders are usually fined, wealth has become the license for the rich people to
commit crimes. The pecuniary punishments have promoted the criminal mentality of the rich
class of the society. Islamic legal system has the provision of monitory fine only in case of
Diyyat, however, the amount of diyyat is fixed and it can only be imposed if the aggrieved party
wishes to do so. The law, otherwise, cannot convert the punishment of Qisas into Diyyat.

Another significant feature of Islamic legal system is the reporting of crime. No one can be
punished mere on the suspicion that he has committed the crime until it is proved by the
prescribed number of reliable witnesses. The strict procedure to be observed for the reporting of
crime preserves the integrity of mankind. Strict punishments should be awarded to those who
bring allegation against someone and then fails to prove those allegations. The western legal
system, on contrary, does not have such provisions. In western legal system any person can
report a crime against a noble and innocent man without having any proof. The person after a
long process of humiliation may be proved innocent. Islam prohibits such kind of system where
every member of the society lives like suspects. He can be charged any time for a crime mere on
suspicion.

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Conclusion
Different philosophers and criminologist studied the criminal behavior of the criminals. They
summed up their work and produced different theories about the causes and prevention of crime.
The first theory, in this respect, known as classical theory of criminality was developed by an
Italian and Englishman named Cesare Beccaria and Jeremy Bentham respectively in late
eighteen century. The underlying principle of their theory is that man is having free will. Human
beings are hedonistic and they try to maximize their pleasure and minimize their pain. According
to this theory the behavior of human can only be controlled by fear of pain and thus deterrence is
the only effective measure for the prevention of crime.

Similarly positivistic school of criminologist argues that human beings do not have their free
will. Their behavior is affected by various biological, sociological and psychological factors.
Humans are not responsible for their actions. According to this school of criminology the
instrument for the prevention of crime should be the rehabilitation efforts for the reformation of
offenders.

All the legal systems in the world support any one of the above theories for justification of
awarding punishment. The Western legal system follows the positivistic school of criminology.
However, the rehabilitation efforts (like imprisonment) are highly criticized due to their
contrasting outcomes. The Islamic legal system on the other hand has lessons for criminologist
of both classical and positivistic schools of criminology. Both deterrent and reformatory
punishments are awarded by the Islamic law. Moreover, many Islamic punishments have dual
effects of rehabilitation and deterrence at the same time. For example, imputation of hand in
cases of theft has the deterrent effect on all those who are like minded to the criminal, and it also
helps in the rehabilitation of convict as Islam allows such convicts to live his life in the society
with all the privileges like others and forbids any discriminatory treatment to him because of his
ex– convictions.

Islamic law is the perfect law for the prevention of crime. Shariah laws are divine laws. The
principles of Shariah laws are established by God the Almighty who is fully aware of the human
nature, their psychologies etc. Thus Islamic laws act as guidelines for the criminologists to study
and develop their knowledge of the subject.

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BIBLIOGRAPHY
Books

1. Principles of Islamic jurisprudence-Mohammad Hashim kamali.


2. Shari’ah Law: An introduction- Mohammad Hashim kamali.
3. Islam and the secular state- Abdullahi Ahmed An-Naim.
4. A history of Islamic legal theories- Wael Hallaq.

Sites

1. https://plato.stanford.edu/entries/legal-punishment/#PunCriSta
2. http://www.fountainmagazine.com/Issue/detail/Victim-Rights-in-Islam-and-Western-
Legal-Systems-A-Comparative-Anlysis

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