Distinguishing Features of the Islamic Penal System
In the aforementioned principles, Islamic Law and
contemporary law coincide, though Islamic Law has the distinction of being
first. However, the Islamic penal system also has unique virtues and
distinguishing features, among the most important of which are the following:
1. The inner deterrent of man’s moral conscience
is fully integrated with external supervision. This is due to the fact that
Islamic Law, when dealing with social problems such as crime, does not rely
merely on legislation and external deterrents. It focuses more on the internal
deterrent, placing the greatest emphasis on man’s moral conscience. It
endeavors to develop this conscience within a person from childhood so that he
can be brought up with the noblest moral character.
It promises success and
salvation for those who work righteousness and warns wrongdoers of an evil fate.
In this way, it stirs up emotions, making a criminal renounce his ways by
inspiring him with faith in God, hope for divine mercy, fear of divine
punishment, adherence to moral virtues, love for others, and a desire to do
good to others and refrain from causing injury and harm.
2. It has a balanced outlook with respect to the
relationship between the individual and society. This becomes clear from the
fact that while the Divine Law protects society by legislating punishments and
preventative measures against crimes, it does not marginalize the individual
for the sake of society. On the contrary, its priority is the protection of
the individual, his freedom, and his rights. It provides every safeguard to
leave no excuse for a person to have to resort to crime. It does not set out
to punish without first preparing for the individual a situation conducive to a
virtuous and happy life.
Forms of Punishment in Islam
Islamic Law, in confronting the problems of life and
setting down solutions for them, is established on two complimentary principles.
These are: the stability and permanence of its basic tenets on the one hand and
the dynamism of its subsidiary injunctions on the other.
For the unchanging aspects of life, Islamic Law brings
fixed statutes. For the dynamic aspects of life that are affected by social
development, broadening horizons, and advances in knowledge, Islamic Law comes
with general principles and universal rules capable of being applied in a
number of different ways and in a variety of circumstances.
When we apply these principles to the penal system, we
find that Islamic Law has come with clear texts prescribing fixed punishments
for those crimes that no society is free of, crimes that do not vary in their
forms because they are connected with the constant and unchanging factors of
human nature.
Islamic Law confronts other crimes by stating the
general principle that decisively indicates their prohibition, leaving the
punishment to be decided by the proper political authority in society. The
political authority can then take the particular circumstances of the criminal
into consideration and determine the most effective way to protect society from
harm. In accordance with this principle, punishments in Islamic Law are of
three types:
1. Prescribed punishments
2. Retribution
3. Discretionary
punishments
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