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

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.

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

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

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…………………

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

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.

.

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.

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

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

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

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

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.

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.

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.

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.

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.

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).

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.

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.

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?

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

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.

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).