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The Theory of Punishment in Islamic Law a Comparative THE THEORY OF PUNISHMENT IN ISLAMIC LAW A COMPARATIVE STUDY by MOHAMED 'ABDALLA SELIM EL-AWA Thesis submitted for the Degree of Doctor of Philosophy in the University of London, School of Oriental and African Studies, Department of Law March 1972 ProQuest Number: 11010612 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010612 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 2 , ABSTRACT This thesis deals with the theory of Punishment in Islamic law. It is divided into four ch pters. In the first chapter I deal with the fixed punishments or Mal hududrl; four punishments are discussed: the punishments for theft, armed robbery, adultery and slanderous allegations of unchastity. The other two punishments which are usually classified as "hudud11, i.e. the punishments for wine-drinking and apostasy are dealt with in the second chapter. The idea that they are not punishments of "hudud11 is fully ex- plained. Neither of these two punishments was fixed in definite terms in the Qurfan or the Sunna? therefore the traditional classification of both of then cannot be accepted. The third chapter discusses the punishment for homi­ cide and injury. It is usually said that homicide is treated under Islamic law rather as a tort than a crime, and an attempt is made to explain and elucidate this. The fourth chapter deals with the discretionary pun­ ishments or ?lal-ta1 zir11, ?nd the fifth chapter deals with the law of evidence in criminal cases. In this thesis I have tried to explain the philosophy underlying the theory of punishment in Islamic law, so a survey in which Islamic law is examined in the light of modern penologists1 ideas has been added to each of the first four chapters. The conclusion is devoted to a discussion of the poss- ibility of applying tht Islamic Penal System in present Muslim societies. I have tried to explain that unless Islamic law is accepted and enforced as a complete and comprehensive system, the Islamic penal system cannot be Acknowledgement This thesis was prepared under the supervision of Professor N. J. Coulson, to whose valuable suggestions and criticism I am deeply indebted. I must also express my gratitude to my wife, not only for typing the proofs, but also for the unlimited time she spent with me in discussing my ideas and conclusions. I am grateful to my eminent teacher Sheikh Muhammad Mustafa Shalabi, • • • Head of the Department of Islamic Law in Alexandria University, with whom I exchanged a series of very helpful letters about the subject, and to Mrs. Jyl Francis for her help in correcting my English. I would also like to express my deep thanks to my close friend and teacher, Mr. H. M. A., without whose help this work could have never been completed. Needless to say, none of these people is responsible for any errors which may remain, or indeed for any of my conclusions. CONTENTS Introduction 9 Chapter I. The Fixed Punishments "al-Hudud11 15 - Definition 15 - Classification 16 - The Punishment for Theft 1® ,!al Sariqa11 1. The Value of the Stolen Property 19 2. How the Hand should be Cut-Off 3. The Problem of Custody nal-Hirz!l 27 . • - Armed Robbery "al-Hiraba11 3° 1. Where lfHiraba!t can be Committed 3^ 2 . The Carrying out of the Punish- 36 ments 3. Banishment "al-Nafy" - Illicit Sexual Relations nal-ZinaM ^ 1. Stoning as a Punishment “al-Rajm11 ^7 2, The Nature of the Punishment for 52 Adultery 3# The Distinction between Married 5*+ and Unmarried. - Slanderous Allegations of Unchas- 58 tity "al-Qadhf" 1. The Clarity or Intimation of the 61 Accusation 5. 2 . The Categorization of the 63 Punishment 3. The Effect of the Criminal's 65 Repentance - A Survey of the ,fHaddn Punishments 67 1. Retribution and the nHaddt! 71 Punishments 2. The Concept of Expiation 79 3. Deterrence and the "Hadd11 80 Punishments 3.1 Disinheritance and Deprivation 87 of Legacy 3.2 Rejection of the Offender1s 91 Testimony b* Reformation and the "Hadd11 92 Punishments Chapter II. Categorization of the Punishments 92 for Wine-drinking and Apostasy f,al-Shurb wal-Riddari - Traditional Islamic Law 92 - The Punishment for Wine-drinking 98 1. Facts about the Prophetic Reports 101 2. The Alleged Consensus 10V 3. Individual Juristic Views 108 6. - The Punishment for Apostasy 111 1. Apostasy in the Qur*an 112 2. The Sunna and Apostasy 11*+ - A View about Apostasy 119 - A Survey of Wine-drinking and 126 Apostasy Punishments 1. Wine-drinking 129 2. Apostasy 137 Chapter III. Retaliation "al-Qisas" 1U5 • • - Punishments for Homicide and Wounding 1U5 »al~Qatl wal Jurh - The Historical Background l*+6 - Retaliation and Blood-Money 1?0 - Disputed Points about the Infliction 166 of "Qisas" • . 1. The Punishment of a Group for 167 Killing a Single Person 2. The Punishment of a Muslim for 168 Killing a non-Muslim 3. ,!Qisasrl from a Father for Killing 172 * . his Son - The Application of "Qisas11 in Muslim • . Countries - Classification of Homicide 17® - A Survey of the Law of "Qisas11 7. Chapter IV. The Discretionary Punishment "al-Ta'zir” 196 - Definition 196 - ,fTa!zirH in the Qur!an and Sunna 198 - Kinds of "Ta'zir" Punishments 206 1. Admonition "al-Wa^" 207 2. Reprimand "al-Tawbikh11 208 3. Threat "al-Tahdid" 208 *+. Boycott "al-Hajr" 209 5. Public Disclosure "al-Tashhir" 210 6 . Fine and Seizure of Property 212 f!al-Ghramah wal-Musadarah" 7. Imprisonment Hal-HabsI! 215 8 . Flogging Hal-Jald" 219 9. The Death Penalty 22k 10, nTafzirn as an Additional Punish- 227 ment - The Judge*s Discretionary Power 229 1. Usury r,al-Riba” 232 2. False Testimony "Shahadt al-ZurM 233 3. Breach of Trust "Khiyanat al-Amanah11 233 k. Insult "al-Sabb" 2.3k 5. Bribery "al-Rishwa" 235 - Determination of Offence Under the 236 "Ta1zir” Doctrine - A Survey of the Law of "Ta^ir11 2*+2 Chapter V. The Law of Evidence in Criminal Cases 2$Q it al - I t h b a t ’’ - Introductory 2^0 - Testimony "Shahada” 2^1 1. Testimony in Cases of Adultery 25b - Confession "Iqrar11 2^6 - The Judge*s Personal Observation 262 ff 11 lm al-Qadi11 • mm - Circumstantial Evidence ,fal-Qara* in,f 26b Conclusion. Islamic Penal System and Present Muslim Societies 268 Bibliography 278 INTRODUCTION All penal systems are concerned, in the first place, with the punishment of the offender. The study of the theory of punishment, therefore, is an essential step towards the understanding of any penal system. At the same time, one cannot justify the application of a particular penal system unless it has become clear that its theory of punishment can successfully achieve the required ends and objectives. In Western penal systems, broadly speaking, the theories of punishment are based on, and justified by, considerations of social utility, while in Islamic law, the theory of punishment is said to be based on divine revelation contained in the Qut'an and the Sunna* The fact is that the Qur'an and the Sunna contain very little theorisation, if any at all. The Qur'an and the Sunna contain only some basic rules and commands usually expressed in a very broad way and usually capable of varying interpretations. There are also some specific injunctions and prohibitions but they are very few and concern a variety of subjects. The formation of theories in Islamic law started at a comparatively later stage when the schools of Islamic law emerged in the second century after the nHigran and in subsequent centuries. The writings of the scholars of each school contain 10. volumes dealing with the criminal section of the Islamic legal system. Different interpretations of the Qur’an and the Sunna, and different views about what is good and what is evil, as well as different social, economic, and political circumstances led to the formation of various legal theories on almost all the legal provisions, including, of course, the penal system. In the last fifty years, lawyers educated and trained according to modern trends in legal education, have started to be attracted by the study of the Islamic penal system. Thus a lot of research work has been published concerning one topic or another. Also in some European languages, writers have dealt with various aspects of the subject. In many cases the Islamic penal system was either com­ pletely rejected, or strongly defended on grounds of wide generalities or deep misunderstanding. So it appears necessary for a carefu}. study t6‘ analyse and illustrate the underlying philosophy of the theory of punishment in Islamic law in the light of the modern approach to the subject. This research was undertaken to this end. In dealing with the subject I have divided this thesis into five chapters. The first one is devoted to a discussion of the punishments known as nhududt! or « fixed punishments. Classical treatises classify the punishments of six offences as uhaddu punishments* 11. However, it seems to me that only four out of these six offences appear to have been correctly described as Ifhaddn offences.
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