Page 1
DEATH PENALTY
UNDER HUDUD AND QISAS
FROM MODERN PENOLOGY’S PERSPECTIVE
BY
MARLI CANDRA
A dissertation submitted in fulfilment of the requirement for
the degree of Master of Comparative Laws
Ahmad Ibrahim Kulliyyah of Laws
International Islamic University Malaysia
MARCH 2015
Page 2
ii
ABSTRACT
Death punishment is a debatable issue that attracts the attention of scholars either in
favour of or against it. This issue is intensively discussed in countries which still
retain the death punishment for the offence committed in their territory, like the
United State of America (USA), China and most of Muslim countries. In the case of
the USA and China, the death punishment comes into the issue of crime prevention
and reduction, whereas in Muslim countries, death punishment relates to the issue
associated to religion as the death punishment is mostly related to ḥudūd and qiṣāṣ
offenses which are unchangeable and should be applied in the Muslim life. This
research tries to elucidate the penological aspect of death punishment in Islamic
criminal law and compares it to the modern penological policy of modern criminal
law. It is mostly based on qualitative approach which was designed to gather an in-
depth understanding of the concept of punishment and its justification in the modern
penology as well as in Islamic perspective. This approach is also based on analytical
as well as comparative analysis in order to find the answers to the questions in this
research. It is found that the justification for death punishment which is mainly
contained in the ḥudūd and qiṣāṣ offenses is not detrimental to what is understood by
modern penology. Islamic law provides death punishment for serious offenses, but it
also prescribes ways on how to abolish such punishments. It is in concurrence with the
modern abolishment approach with regard to death punishment. In another dimension,
it is concluded that Islamic law is in accordance with the concept of human rights,
particularly in the matter of punishment. Therefore, it is applicable to our modern era.
Page 3
iii
ملخّص البحث
عقوبة الإعدام قضيّة لا تزال معروضةً في إطار النقاش فضلاًً علاذ كللاإ فاّ لاا قلاد الاتبا ا لاا وظهلار هلات القضلاية . العلماء، فمنهم المؤيدّون ل ط يق هت العقوبة وملانهم المطلاال ون بالئااهلاا
راام ارتّ لالاا في بصلالاورم مّفّ لالاة في العديلالاد ملالاذ ال للالادان اللالاب ا علالاا عقوبلالاة الإعلالادام عللالا الالاوأن تط يلاق . تلإ ال لدان، مفل الولايا الم حدم الأمريّيلاة والصلاو ومععلام ال للادان الإةلاًمية
عقوبلالالاة الإعلالالادام في الولايلالالاا الم حلالالادم الأمريّيلالالاة والصلالالاو يهلالالادلمج إ منلالالا ا ر لالالاة و الالالار ا لالالارم إلا أن مسلاا ة ، اوردعه، ونجد أ ه في ال لدان الإةًمية تهدلمج عقوبة الإعدام إ الئاية سلاه
تط يقهلالاا أرفلالار إ اطلالاةً و،وليلالاةً، قيلالاع ت عللالاق العقوبلالاة بالشلالاؤون الدينيلالاة بشلالاّل علالاام، إلا أن في الئالب تن َّت عقوبة الإعدام في قضلاايا ادلادود والقصلااع، علمًلاا بلاهن هلات العقوبلاة ملاذ الفوابلاا
الدراةلالاة ولالااول وفي هلالات. الدينيلالاة اللالاب لا ّلالاذ تعلالاديلها وهلالاب تط يقهلالاا في ا ملالا الإةلالاًم . ال ا لالالالاع بيلالالالاان عقوبلالالالاة الإعلالالالادام ملالالالاذ اوا لالالالاب فينولوايلالالالاة ومقار هلالالالاا بالقلالالالاا ون ا نلالالالاااّ المعا لالالالار
ول حقيلالالالاق كللالالالاإ اةلالالالا ندم ال ا لالالالاع منهميلالالالاة النوعيلالالالاة في م هلالالالاوم العقوبلالالالاة وم راتهلالالالاا وفلالالالاق عللالالالام الملانهج واع مد الدراةة أيضًا عل المنهج ال حليلّ و . العقوبا ادديفة ومذ منعور إةًم
وارُ شلا ملاذ للاًل هلات الدراةلاة أن عقوبلاة . المقارن للعفلاور عللا الإاابلاة علاذ أةلاللة الدراةلاةالإعلالادام اللالاتو يّلالاون في الئاللالالاب تن لالات في قضلالاايا ادلالادود والقصلالالااع لا يعلالاار مق ضلالا عللالالام
علمًا بلاهن عقوبلاة الإعلادام في الشلاريعة الإةلاًمية تنط لاق عللا ا ر لاة ا طلا م . العقوبا ادديفةرأ بالش ها والأة ا الألر الب تلئ هت العقوبةالا وهتا لا شإّ . ة شنااية رما أ ا تُدر
موافق للأةلو اللاتو أللات عللام العقوبلاا ادديفلاة، وملاذ ا يلاة أللار ، ّلاذ الاةلا نًع أيضًلالالاا أن الشلالالاريعة الإةلالالاًمية تعاليمهلالالاا تنسلالالامم ملالالا فّلالالارم ا لالالا ام قلالالاو الإ سلالالاان، لا لالالاة في
. ، ولتلإ أن تن يت عقوبة الإعدام ادة أن تُطّ ق في العصر ادديعقضايا العقوبا
Page 4
iv
APPROVAL PAGE
I certify that I have supervised and read this study and that in my opinion, it conforms
to the acceptable standards of scholarly presentation and is fully adequate, in scope
and quality, as a dissertation for the degree of Master of Comparative Law.
……………………………………………..
Abdul Rani bin Kamaruddin
Supervisor
I certify that I have read this study and that in my opinion it conforms to acceptable
standards of scholarly presentation and is fully adequate, in scope and quality, as a
dissertation for the degree of Master of Comparative Law.
……………………………………………..
Nasimah Hussin
Examiner
This dissertation was submitted to the Department of Islamic Law and is accepted as a
fulfilment of the requirement for the degree of Master of Comparative Law.
……………………………………………..
Mohd Darbi B. Hashim
Head of Department of Legal Practice
This dissertation was submitted to the Ahmad Ibrahim Kulliyyah of Laws and is
accepted as a fulfilment of the requirement for the degree of Master of Comparative
Law.
……………………………………………..
Hunud Abia Kadouf
Dean, Ahmad Ibrahim Kulliyyah of Laws
Page 5
v
DECLARATION
I hereby declare that this dissertation is the result of my own investigations, except
where otherwise stated. I also declare that it has not been previously or concurrently
submitted as a whole for any other degrees at IIUM or other institutions.
Marli Candra
Signature…………………… Date…………………
Page 6
vi
INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA
DECLARATION OF COPYRIGHT AND AFFIRMATION
OF FAIR USE OF UNPUBLISHED RESEARCH
Copyright © 2015 by Marli Candra. All rights reserved.
DEATH PENALTY UNDER HUDUD AND QISAS FROM MODERN
PENOLOGY’S PERSPECTIVE
No part of this unpublished research may be reproduced, stored in a retrieval system,
or transmitted, in any form or by any means, electronic, mechanical, photocopying,
recording, or otherwise without prior written permission of the copyright holder
except as provided below.
1. Any material contained in or derived from this unpublished research
may only be used by others in their writing with due acknowledgment.
2. IIUM or its library will have the right to make and transmit copies (print
or electronic) for institutional and academic purposes.
3. The IIUM library will have the right to make, store in a retrieval system
and supply copies of this unpublished research if requested by other
universities and research libraries.
Affirmed by Marli Candra.
……………………… ……. ………………..
Signature Date
Page 7
vii
ACKNOWLEDGEMENTS
All praise to the almighty Allah, the Most Gracious and the Most Merciful,
without His immense blessings and guidance this thesis could not have been written.
Foremost, I would like to express my sincere gratitude to my supervisor,
Assoc. Prof. Dr. Abdul Rani Kamaruddin, for his guidance, ideas, thoughts and
invaluable help in making constructive comments and suggestions throughout the
writing of this thesis. I will always be proud of being his student.
My special gratitude and indebtedness to my teacher, Dr. Syamsuddin Arif,
whose guidance and insights had become a great inspiration throughout my academic
journey in the quest of His knowledge.
I would like to acknowledge the academic and technical support of Post-
Graduate staff of Ahmad Ibrahim Kulliyyah of Laws who provided the necessary
assistance in the completion of this thesis. I am also indebted to all my friends,
Imanuddin Abil Fida, Ali Ma’sum, Syamsuri and Fajeri Ishaq for their discussions of
the topic as well as being the reminder and the accompanier of the long road to writing
the thesis.
Last but not least, my deepest gratitude to my mother Ira Sam for her endless
encouragement and also to my brother Rahmad Saputra and my sisters Marlisa Elfira
and Maharani Safitri for their support during my study. Not to forget, my beautiful
wife Zikra Afifah and my two beautiful angels Aleena and Kyna for their love and
care. Warmest appreciation to my dearest friends and colleagues at IIUM and all
others whose names I could not mention for their support and help, directly or
indirectly, in completing this research.
.
Page 8
viii
I dedicate my thesis to my loving family and friends. A special feeling of gratitude to
my late father, Ramli who taught me that without a hard work everything is impossible
and my extraordinary mother Ira Sam whose endless prayer helps me to get through
all obstacles. Not to forget my beautiful wife Zikra Afifah and my two angels Aleena
and Kyna for their invaluable cheers and love.
Page 9
ix
TABLE OF CONTENTS
Abstract ...................................................................................................................... ii
Abstract in Arabic ...................................................................................................... iii
Approval Page ............................................................................................................ iv
Declaration ................................................................................................................. v
Copyright Page ........................................................................................................... vi
Acknowledgements .................................................................................................... vii
Dedication ................................................................................................................. viii
List of Abbreviations ................................................................................................ xi
Transliteration Tables ................................................................................................ xii
CHAPTER ONE: INTRODUCTION .................................................................... 1
1.1 Background of the study ......................................................................... 1
1.2 Definition of Punishment ........................................................................ 3
1.3 Summary of Research ............................................................................. 8
1.4 Statement of Problem .............................................................................. 9
1.5 Objectives of Research ............................................................................ 10
1.6 Hypothesis ............................................................................................... 10
1.7 Literature Review .................................................................................... 10
1.8 Scope and Limitation of Study ................................................................ 19
1.9 Research Methodology ............................................................................ 20
CHAPTER TWO: UNDERSTANDING PUNISHMENT ................................... 21
2.1 Punishment in Modern Penology ............................................................ 21
2.1.1 Definition of Punishment .............................................................. 21
2.1.2 The Infliction of Punishment ........................................................ 23
2.1.3 Justification of Punishment ........................................................... 24
2.1.3.1 Retributive Justification ........................................................ 24
2.1.3.2 Utilitarian Justification .......................................................... 26
2.1.4 Paradigm Shift in Punishment ....................................................... 27
2.2 Punishment in Islamic Law ..................................................................... 29
2.2.1 Islamic Law ................................................................................... 30
2.2.2 Crime ............................................................................................ 35
2.2.3 Punishment and Its Aims .............................................................. 38
2.2.4 Classification of Punishments ....................................................... 41
2.2.4.1 Ḥadd punishment ................................................................. 43
2.2.4.2 Qiṣāṣ ..................................................................................... 46
2.2.4.3 Ta’zīr .................................................................................... 47
2.3. Conclusion .............................................................................................. 49
CHAPTER THREE: DEATH PUNISHMENT .................................................... 50
3.1 Introduction ............................................................................................. 50
Page 10
x
3.2 The History of Death Punishment ........................................................... 52
3.3 Justification of Death Punishment .......................................................... 55
3.3.1 Retributive Approach .................................................................... 56
3.3.2 Deterrent ........................................................................................ 59
3.3.3 Rehabilitative or Reform ............................................................... 62
3.4 Death Penalty and Human Rights ........................................................... 62
3.5 Death Penalty Offences ........................................................................... 65
CHAPTER FOUR: DEATH PUNISHMENT UNDER ISLAMIC LAW .......... 68
4.1 Introduction ............................................................................................. 68
4.2 Death Punishment under Islamic Law .................................................... 72
4.2.1 Qiṣāṣ .............................................................................................. 72
4.2.2 Adultery ......................................................................................... 76
4.2.2.1 Rajm ..................................................................................... 77
4.2.3 Apostasy ........................................................................................ 80
4.2.3.1 Punishment for Apostasy ..................................................... 81
4.2.3.2 Death as Punishment ............................................................ 86
4.2.3.3 No Compulsion on Religion ................................................. 89
4.3 Abolition of Death Punishment ............................................................... 93
4.3.1 Secrecy .......................................................................................... 94
4.3.2 Diyat and Forgiveness ................................................................... 95
4.3.3 Repentance .................................................................................... 98
4.3.4 Shubhah ......................................................................................... 99
4.4 Conclusion ............................................................................................... 100
CHAPTER FIVE: CONCLUSION ....................................................................... 103
5.1 Findings ................................................................................................... 104
5.2 Summary ................................................................................................. 106
BIBLIOGRAPHY .................................................................................................... 108
Page 11
xi
LIST OF ABBREVIATIONS
C.P.C Criminal Procedure Code
ECHR European Convention on Human Rights
e.g (Exampligratia); for example
ed./eds. Edition/editions; editor, edited by
et al. (et alia): and others
etc (et cetera): and so forth pages that follow
ICCPR International Covenant on Civil and Political Rights
ibid. (ibidem): in the same place
id (idem): the same below
n.d. no date
n.p. no place: no publisher
UN United Nation
UDHR Universal Declaration of Human Rights
UIDHR Universal Islamic Declaration of Human Rights
SWT Subhānahū Wa Ta’āla (Praise be to Allah and the Most High)
SAW Sallallāhu Alayhi wa Sallam
trans. translator/translated by
vol./vols. volume/volumes
Page 12
xii
TRANSLITERATION
’ ء خ
Kh
شSh
غ
Gh
نN
ب
B
د
D
ص
Ṣ
ف
F
ـه
H
ت
T
ذ
Dh ض
Ḍ
ق
Q
و
W
ث
Th ر
R
ط
Ṭ
ك
K
ي
Y
ج
J
ز
Z
ظ
Ẓ
ل
L
ح
Ḥ
س
S
‘ ع
م
M
ShortVowels
Long Vowels
ā ـ َ + ا A ـ َ
ī ـ َ +يَ I ـ َ
ū ـ َ + وَ U ـ َ
ay = ا ي ; aw = اَو
Page 13
1
CHAPTER ONE
INTRODUCTION
1.1 BACKGROUND OF THE STUDY
In daily life, an individual cannot live by himself; there is a tendency in the nature of
each and every individual to form social relations with other individuals. Wherever
human beings exist, they exist as a group or society. Aristotle was perhaps, the first
thinker who called a man a social animal.1 However, Muslim scholars went further
and discovered that man is, in fact, a political being who always lives in groups
politically organized under some kind of law and political authority. Al-Farābī was
one of the earliest Muslim thinkers who highlighted the political nature of human
beings2 and what is necessary for this relation to exist is a certain predictability of an
action, a certain shared understanding. Simon Roberts contended in his book, Order
and Dispute, that:
At the root of everyday life in any society there must necessarily be
some patterns of habitual conduct followed by the members, providing
the basis upon which one member will be able to predict how another
is likely to behave under given circumstances or how his own actions
will be received.3
Furthermore, one theory of state creation explains this relation4 by which its
people give part of their freedom in exchange for the protection of their rights. In
order to keep and maintain the equal distribution of these rights, the state in which
1Mahmood Ahmad Ghazi, State and Legislation in Islam, (Pakistan: Sharia Academy of IIU Islamabad,
2006), 1. 2Ibid.
3Christopher Harding & Richard W. Ireland, Punishment: Rhetoric, Rule, and Practice, (London:
Routledge, 1989), 79. 4Social contract theory proclaimed by Hobbes and Locke, despite having a different criterion in regard
to the natural state of human life, has in some way agreed to the existence of the state to ensure the
safeguarding of rights.
Page 14
2
those people live should have a set of rules that will govern their actions. If people do
not have a set of rules that govern their actions, is it possible for a social structure to
be maintained? The answer is negative, as Honore has recognized that a social
structure cannot stand if the rules allow “Everyone (is) to do as he or she likes”.5 In
order to secure the person’s obedience and respect of the right of another, the
transgression of such rules should liable him or her to a particular act that involves the
disapproval from society which contains pain and unpleasantness.
When we look at the practice of punishment, it may still be safely asserted that
more punishment is handed down by families, institutions of work, education, and
within the interpersonal sphere that is handed out by the state. It may be said that the
scope of punishment is involved in three spheres; firstly, legal penality6 where the
state has the power to inflict punishment on those who break its law, secondly,
religious penality where punishment resides in a system of belief related to normative
order and lastly, popular penality where punitive reactions spring from community’s
standard of rules distinct from that represented by the state.7 A punishment may be
applied by a number of ‘authorities’ in relation to a single instance of offending
conduct concurrently disapproved within a number of social groups. In terms of our
discussion, it is limited to the sanctions imposed by the institution of criminal justice
and its ancillary agencies. This focus should not be taken to deny the existence, or
political importance, or other non-legal forms of sanctioning such as those occurring
domestically, in education or employment. Punishment in the state institution may not
5See Harding & Ireland, 80.
6The word penality means the complex of idea (about proper punishment, about effective punishment),
relationships (who has the power to say who is punished, whose ideas count, what is the relationship of
those who punish and are punished by the rest of society) and institutions (laws, policies and practices,
agencies, and buildings) involved in the punishment of offenders. See for further detail in Barbara H.
Hudson, Understanding Justice An Introduction to Ideas; Perspective and Controversies in Modern
Penal Theory (USA: Open University Press; 2nd
edn., 2003), 6. 7Harding & Ireland, 38-43.
Page 15
3
differ much than other social penality, in the context of social control; the difference
may exist in the forms of measure applied, the associated procedures and
organizational paraphernalia and the ambit of society itself. All groups within society
with their distinct normative system and capacity should abide by state rules.8
1.2 DEFINITION OF PUNISHMENT
When we look at our surroundings, the use of punishment is an inevitable part of our
community. The definition of punishment is too complicated as many scholars define
this concept with varying emphasis and focus. One definition is given by Morris
where punishment is the intentional imposition of some pain, unpleasantness, or
deprivation for an offence committed by the culprit.9 But, this definition is deficient,
since it has not said anything about the one who punishes the culprit. Another scholar
has tried to place criteria for an act to be called punishment. Benn, Flew and Hart10
suggest five elements to fix the word’s central meaning. Punishment must: (1) involve
pain or other consequences normally considered unpleasant; (2) for an act against
legal rules; (3) an actual or supposed offender for his action; (4) intentionally
administrated by human being other than the offender; (5) imposed and administrated
by authority constituted by the legal system against which the offence was
committed;11
and (6) added by Benn that pain and unpleasantness is essential. In
8Ibid., 36.
9See Christopher W. Morris, “Punishment and Loss of Moral Standing”, Canadian Journal of
Philosophy, vol. 21, no. 1 (March 1991): 55. 10
H.L.A. Hart, “Prolegomenon to the Principles of Punishment”, In his book Punishment and
Responsibility: Essays on the Philosophy of Law, with introduction by John Gardner, (New York:
Oxford University Press; 2nd
edn., 2008), 4-5. 11
Sue Shaper in her thesis suggests criteria of punishment after discussing standards of punishment
given by various scholars including Flew, Benn, Hart and Armstrong in one of the chapters
“Characterization of the Act of Punishment”:
1. That the act would be an infliction of an intentional and essential hardship by a person
upon a person.
Page 16
4
addition, several scholars add that the act should bear censure and an expression of
disapproval.12
This last point was also discussed by Joel Feinberg as he considers
punishment as an established standard for the expression of anger and a demonstration
of disapproval or reprobation, on the part of either the authority or society.13
In regard to this research, the researcher would like to elucidate these two
questions before going into details of this research. First, why do we need an
institution of punishment? The second is mainly related to the distribution of such
punishment, its justification and how much is to be punished and who will be
punished?. These two questions can be drawn based on Hart’s claim on the general
justification of punishment and distribution of punishment14
.
Robinson and Darley15
proposed the reasons why people obey the law: first,
they fear the disapproval of their social group if they violate the law. Second, they see
themselves as moral beings who want to do the right thing as they perceive it. In these
two reasons for obedience, it is concluded that criminal law and the violation of such
law which gives rise to punishment are the products of moral convention among
people. What is perceived as immoral by a particular society will be applied into such
2. That the hardship be inflicted because of an offence or the possibility of an offence
against some rules, laws or more.
3. That the hardship be inflicted by an appropriate authority.
Sue Shaper, The Justification of Punishment, (Ph.D. dissertation, RICE University, Houston, Texas.
1974), 51. 12
Alf Ross criticizes this definition saying that point number (4) is redundant in so far this requirement
is included in number (5), also he criticizes the definitions given which do not including that the
punitive measure must be taken as an expression of disapproval of the violation of the rule, and
consequently of censure or reproach directed at the violator. Moreover, he provides his criteria that
punishment is a social response which: (1) occurs where there is a violation of legal rule; (2) is imposed
and carried out by authorized persons on behalf of the legal order to which the violated rule belongs; (3)
involves suffering or at least other consequences normally considered unpleasant; (4) expressing the
disapproval. See Alf Ross, On Guilt, Responsibility and Punishment, (California: University of
California Press, 1975), 39. 13
Joel Feinberg, Doing and Deserving: Essays in the Theory of Responsibility, (New Jersey: Princeton
University Press, 1970), 99. 14
H.L.A. Hart, “Prolegomenon to the Principles of Punishment”, In Sentencing, edited by Hyman Gross
& Andrew von Hirsch, (New York: Oxford University Press, 1981), 11-13. 15
Paul H. Robinson and John M. Darley, “The Utility of Desert”, Northwestern University Law Review,
Vol. 91, no. 2 (1997): 468-471.
Page 17
5
law. In other words, criminal law is the manifestation of the norm16
held by society
and one of the tools to assure the conformity of it is the creation of punishment. Not
all law that is introduced is based on moral solely; there is law based on its effect on
society such as strict liability. But by applying such law, it constitutes a demand of
obedience from the community and the state; therefore, there is moral justification to
punish the violator. The role of law is quite significant in producing peace and
happiness in society as contended by Bentham that “the general object which all law
have, or ought to have in common is to augment the total happiness of community and
therefore to exclude as far as may be, everything that tends to subtract from that
happiness, in other words to exclude mischief.”17
By making a particular act a crime, the legislator aims to protect society and
influence the behaviour of its members; also to refrain from certain acts so as to
procure or attain an idealistic community life. The institution of punishment is
projected to assure that these goals are fulfilled by punishing thus who violate the
rules and deter others who would commit similar acts.18
Punishment is a necessary
mechanism for enforcing criminal law in which it is part of the norm uphold by a
society and the purpose of punishment is to discourage the behaviour which is
specified in the law. The whole point of criminal law and the system of punishment
16
Law that is applied in each country would not necessarily be the same to the law implemented in other
countries. This is because the norm which is upheld by a community is influenced by tradition, religion
and custom of that particular community. Drinking and selling alcohol would be constituted as an
offence in the majority of Muslim countries, but not in other societies. 17
Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, (The Clarendon Press,
New Edition, 1823), 170. 18
See Alf Ross, p 45; See also Beccaria, On Crimes and Punishments and Other Writings, Cambridge
Text in The History of Political Thought, edited by Raymond Geuss & Quentin Skinner, 31. Similarly,
Mabbott in his article states that the person is liable to be punished only because he has broken the law.
Infliction of punishment should not be determined by the good that particular punishment will do either
to the criminal or to society, and the consequences are corollary. See J. D. Mabbott, “Punishment”,
Philosophical Perspective on Punishment, edited by Gertrude Ezorsky, (New York: State University of
New York Press, 1972), 176.
Page 18
6
through which it is enforced is to prevent crime.19
If we ask the question ‘why do we
need an institution of punishment? Then, most people would answer ‘To prevent
crime’ as though it is self-evidence, a truth by definition.20
Then, another question arises as to why punishment is related to moral unlike
any other actions which do not require moral justification. It is because of the
infliction of pain onto a person. Why is such an infliction permissible as it against his
right? In his essay, Charles King tried to answer this question. Peace is derived from
the shared understanding of individuals who strive to obtain harmony in a society;
they agree to restrain themselves and not to transgress other’s rights. A violation of
such rights will be viewed as being based on the reasoning under consideration; the
violator of this principle acts in a manner appropriate to Hobbesian21
state of nature,
not to the stage when conduct is restrained by the principle of right. Our moral restrain
with regard to the violator is rational only on the assumption of mutual restrain
contained in the principle of right. Therefore, when the violator is punished, we do not
violate his right, since we are already in the Hobbesian state of nature and because he
has broken the reciprocity required for us to regard his rights as existing.22
In the same note, Herbert Morris in “Person and Punishment” states that “A
person who violates the rules (that is, the laws of a just legal system) has something
that others have - the benefits of the system - but by renouncing what others have
19
Like Protagoras when he tells Socrates that “Punishment is not inflicted by a rational man for the sake
of the crime that has been committed...but for the sake of the future, to prevent either the same man, or,
by the spectacle of his punishment, someone else from doing at wrong again.” Not to disregard the
correction function of punishment contended by Plato and those with similar opinion. See Matthew A.
Pauley, The Jurisprudence of Crimes and Punishment from Plato to Hegel, 39 American Journal of
Jurisprudence (1994), 103. 20
Barbara H Hudson, Understanding Justice: An Introduction to Ideas, Perspective and Controversies
in Modern Penal Theory, (USA: Open University Press, 2nd
edition, 2003), 6. 21
Hobbesian is an adjective use to describe Thomas Hobbes opinion, in which he regard people are
inherently selfish and they struggle constantly for their survival in the state of nature. 22
See King, J. Charles, “A Rational for Punishment”, The Journal of Libertarian Studies, Vol. IV, No.2
(Spring, 1980).
Page 19
7
assumed, the burden of self-restraint, he has acquired unfair advantages. Matters are
not even until this advantage is in some way erased. Another way of putting it is that
he owes something to others, for he has something that does not rightfully belong to
him. Justice that is - punishing such individuals - restore the equilibrium of benefits
and burdens by taking from individuals what he owes that is exacting the debt.23
Similarly, Michael Davis tried to formulate a version of fairness which he calls
“unfair-advantage principle”, “The unfair-advantage principle assumes that each
criminal (or perhaps the criminal law as a whole) creates a system of cooperation.
Some people forbear doing what they would otherwise do because the law has given
them reasonable assurance that others will do the same. Such a system imposes
burdens insofar as people do forbear doing what they would otherwise do. Anyone
who breaks a law does not bear the same burden as the law abiding rest do. Unless he
is punished, he will, in effect, have gotten away with doing less than others. He will
have an advantage they do not. It is this advantage that the criminal law is supposed to
take back by punishing the criminal for his crime . . . His crime consists only in the
unfair advantage he necessarily took over the law-abiding by breaking the law in
question.24
The violation of the principle of right is also a violation against each member
of society. Each has overriding need for peace and violations of the principle of right
tend to undermine not only that peace, but also the very reason for restraining one’s
own action. Therefore, the state has a right to punish the violator, besides the right of
the individual concerned. When one has violated the principle of right, one forfeits the
right and cannot claim that it protects one from punishment. It is justice that the
23
Quoted from Louis P. Pojman & Jeffery H. Reiman, The Death Penalty For and Against, (USA:
Rowman & Littlefield Publisher Inc.,1998), 74. 24
A Philosophy & Public Affairs Reader, “Punishment”, edited by A. John Simmon, Marshall Cohen,
Joshua Cohen, & Charles R. Beitz (United Kingdom: Princeton University Press, 1995), 192.
Page 20
8
violator receives the consequences of his action. This justice pertains to what
individuals are owed, to what they may claim and to what they have a right.25
After discussing various opinions of scholars, there is a problem as to why
punishment is necessary. It is a fact that when a legislator drafts a particular action and
provides a punishment for such violation, it is to secure the harmony within a society
and to deter others from committing a similar act. However, looking at the meaning
and definition of the word, we could not deny the retributive nature of such act
(punishment).
1.3 SUMMARY OF RESEARCH
After enunciating the definition of punishment and related issue in our practice of
punishment, it is interesting to address the issue of capital punishment, especially in
relation to death penalty in Islamic law, ḥudūd and qiṣāṣ, since the debate has not
been settled till today. Ḥudūd and qiṣāṣ offences have received several attacks from
various angles. One of the criticisms is the inapplicability of punishment of such
offences in our modern word.
The modern world’s penology has shaped the policy of the majority of
countries in regard to punishment. This in reverse will reject any punishment that is
against the popular approach. This also affects the conception of people toward death
punishment. Today, in our modern era, infliction of death penalty is regarded as an
extra-ordinary punishment; it needs to be imposed scrupulously and there are those
who are against death punishment, known as abolitionists.
This standpoint in its appearance may be against the Islamic law. It is one of
the reasons that causes people to avoid the incorporation of Islamic law, particularly
25
Christopher W. Morris, “Punishment and Loss of Moral Standing”, Canadian Journal of Philosophy,
Vol. 21, Number 1 (March 1991): 53-80.
Page 21
9
ḥudūd and qiṣāṣ offences, in their penal laws. Therefore, it is my objective in
proposing this research to look at the possible assimilation and similarities of the
philosophy of punishment in both laws.
1.4 STATEMENT OF PROBLEM
The debate on the topic of punishment, particularly death penalty, would not end. It is
because each party would tend to look at the practice of punishment from different
perspectives although it is possible to meet at a particular point. There are two main
groups in regard to death penalty. One is trying to abolish it and the other is trying to
retain such punishment. Most people associated with the term “abolitionism” tend to
abolish particular forms of punishment and the death penalty has been the focus of
abolitionist campaigns particularly in western countries. However, this movement is
not without reservation in Muslim countries.
In Muslim communities, ḥudūd and qiṣāṣ laws have a significant impact on the
continuation of life, it is an integral part of Islamic teachings that cannot be altered
and separated. One reason that people are inclined to put aside the ḥudūd and qiṣāṣ
punishment in today’s modern age is the harshness that the punishment portrays or
also called as “barbaric”.
As far as this research is concerned, it tries to comprehensively and
exclusively answer the following questions:
1. Is the death penalty in ḥudūd and qiṣāṣ in line with the philosophy of
punishment conceived by modern penology?
2. Is the practice of punishment of death against the human right concept?
3. Is the death penalty in ḥudūd and qiṣāṣ cruel, inhuman, barbaric and
unusual?
Page 22
10
4. Is it possible to implement the death penalty in ḥudūd and qiṣāṣ
particularly and Islamic law generally in our modern era?
1.5 OBJECTIVES OF RESEARCH
1. To contend that the Islamic punishment is in line with modern penology.
2. To articulate that death penalty is not in contrast to the modern penology
view.
3. To elucidate that ḥudūd and qiṣāṣ offences are not against the rights of
human beings.
4. To expose the possible application of death penalty as prescribed in ḥudūd
and qiṣāṣ into our modern law.
1.6 HYPOTHESIS
A Muslim is obliged to believe that the law which is prescribed in the Qur’ān and the
Sunnah covers all aspects of his life. These involve the vertical as well as horizontal
relations. But, this belief is being shaken by the contemporary system of law in the
modern era, particularly in the form of punishment, i.e. the death penalty. In this
research, my hypothesis is that “The Death penalty in ḥudūd and qiṣāṣ is not
incompatible with modern penology”.
Furthermore, it is desirable to understand the Islamic penology and how it
blends with modern penology in order to settle the problems that we are facing today.
1.7 LITERATURE REVIEW
The case of capital punishment has attracted many scholars, who either agree on
retaining such punishment or in favour of abolishing it. There are many books and
articles dealing with death punishment either from the West or East. Here, the
Page 23
11
researcher presents some important books and articles relevant to the subject of the
study.
Ḥudūd and qiṣāṣ in Islamic law have been discussed in various books of
Islamic jurisprudence. Some of the classical books which discuss Islamic law include
Badāi’ al-Ṣanāi’ fi Tartīb al-Sharāi’,26
Nail al-Auṭār min Asrāri Muntaqa al-
Akhbār,27
al-Mughnī,28
al-Mahallī,29
al-Wajīz fi Fiqh al-Imām al-Shāfi’ī.30
Mainly,
these books explore the particular theme based on their schools of thought. Regarding
the comparative study, the book al-Fiqh al-Islāmi wa Adillatuhū,31
is important as the
writer discusses the opinions of all four Islamic schools and points out the prevailing
opinions among them. Mainly, the discussions in this classical book are arranged
accordingly as to cover all perspectives. The justification and aim of punishment
particularly in regard to the death penalty have already been discussed in the books by
classical scholars but not well arranged in our modern era; rather they are scattered in
the sentences and descriptively elaborated. The classical book had already discussed
all matters, either expressly or implicitly. But the need to reread it is compulsory so as
to expose the philosophy of punishment in Islamic law in terms of modern language,
without losing its essence to correspond with our modern time.
As for the western perspective, the materials below may represent the
penological approach taken up to this day.
26
Al-Kasani, Badāi’ al-Ṣanāi’ fi Tartīb al-Sharāi’, (Bairut: Dār al-Kutub al-‘Ilmiyyah,2nd
edition,
2003), Vol. 9, 176-549. 27
Al-Shaukani, Nail al-Auṭār min Asrāri Muntaqa al-Akhbār, (Riyadh: Dār Ibn al-Qayyim, Cairo; Dār
Ibn ‘Affān, 2005), Vol. 9, 5-273. 28
Ibn Qudāmah, al-Mughnī, (Riyadh: Dār ‘Ālam al-Kutub, 1997), Vol. 12, 5-492. 29
Ibn Hazm, al-Mahallī, (Eqypt: Idārah al-Thabī’ah al-Munīriyyah, 1325 H), Vol. 10, p 342-460, Vol.
11, 118-372. 30
Abu Hāmid al-Ghāzalī, al-Wajīz fi Fiqh al-Imām al-Shāfi’ī,(Bairut: Sharikah Dār al-Arqām, 1998),
Vol 2, 125-157/163-182. 31
Wahbah al-Zahailī, al-Fiqh al-Islāmi wa Adillatuhū,(Damascus: Dār al-Fikr, 2nd
edition, 1985), Vol 6,
7-410.
Page 24
12
In the report by the Royal Commission on Capital Punishment, there was a
significant disagreement about the effect of death punishment. Like Sir George Grey,
Bart maintains “reason in many cases of murder has no influence over passions, but in
premeditated murder the fear of death must have a very deterring effect.”32
It would
reasonably deter a reasonable person to not commit the offence that pertains to the
death penalty. But those who are against capital punishment contend that the death
penalty is irrevocable and tend to be applied arbitrarily. It is quite similar to what has
been contended by the scholars who favour the abolition of death penalty.
Beccaria was considered as the influential person in transforming the system
of punishment in Europe. He, in his essay on crime and punishment33
asserted that no
right has been given to the state to execute an individual as it is unnecessary and
against humanity. Furthermore, he contended that it is not the intenseness of the pain
that has the greatest effect on the mind, but its continuance. The death of a criminal is
a terrible but momentary spectacle, and therefore a less efficacious method of
deterring others. In addition, it is not the cruelty of the punishment which is the basis
for its deterrence value but the likelihood of the punishment being carried out. But, he
put a condition where the death penalty is justifiable to be carried out that is in case of
chaos and vulnerability of the state, but these two conditions are open to discussion.
Another important work had also been done by Bentham. In his book34
, he was
of the opinion that when an offence is committed, they are two things that naturally
must be done. Firstly, is to obviate similar danger in the future: secondly, is to redress
or compensate the present mischief. This obviation takes on the form of particular and
32
Report of the Capital Punishment Commission. (London: 1866). 33
The Marquis, Beccaria of Milan, An Essay on Crime and Punishment, with commentary by M. De
Voltaire, (Albany: W.C. Little & Co., New Edition, 1872). 34
Jeremy Bentham, The Rational of Punishment, (London: Robert Heward, C. and W. Reynell).