Living here in Saudi Arabia are many American soldiers who are here officially. The other day, I had a chance to meet one of them through a friend of mine. The topic of Islamic punishments which are in force here came up. My non-Muslim acquaintance was very apprehensive and critical of Islamic punishments. One of the points he raised bothered me a lot. Therefore, I am posing this question to you. What are the criteria on which these punishments are administered? After all, if a person steals out of compulsion, then why should his hands be cut? similarly, if he kills someone in self defence or in the defence of some other person, why should he be executed in return?
This question has actually arisen from a misconception about Islamic punishments. People generally think that as soon as it is proven through a court trial that a person has stolen something, one of his hands shall be amputated, or the moment a judge is certain that a person has murdered someone, he shall be executed in return; similarly, as soon as it is proven that he is guilty of adultery, he shall be whipped a hundred times. In other words, people contend that these punishments are to be administered necessarily in all circumstances. The only thing required is the court’s satisfaction that the charges brought against the criminal are correct to the best of its knowledge.
Now the actual picture which emerges if one reflects on the style and linguistic constructions in which these punishments are mentioned in the Qur’ān is that these punishments are extreme forms of reproof. They are to be given only and only if the extent of the crime and the state of the person who has committed the crime deserve no leniency. In other words, it is not just the fact that whether a person has committed a particular crime or not is to be found out and ascertained by the court; equally important is the information concerning the factors which led to the crime and the state of the person who committed the crime. If this information induces a judge to decide that the crime has not been committed in its ultimate form, he has all the authority to punish the criminal with lesser punishments like fining him or having him beaten up.
Consequently, if someone steals out of compulsion, or if a child steals a few rupees from his father’s pocket, or a wife pinches some money from her husband, or if a person steals something very ordinary, then, no doubt all these cannot be classified as acts of theft which deserve punishment of amputation of hands. Precisely, on such grounds, in a particular case, the Caliph ‘Umar (rta) refused to amputate the hand of a person who was forced to steal because of hunger simply because he thought the circumstances were such that the person deserved leniency. We know that there was a severe drought during his rule and it was in this drought that the incident had taken place. People think that ‘Umar (rta) had abrogated the punishment, whereas, as I said, ‘Umar (rta) thought that the criminal deserved leniency.
Similarly, if we take the case of the punishment of fornication, we have two very clear precedents from the Qur’ān itself as to how extenuating circumstances affect the extent of punishments. We know that during the Prophet’s times there were people who forced their slave girls to prostitution. They would compel them into this heinous crime and thereby earn money. If we look at the conditions of slavery which prevailed in the Prophets times, it becomes clear that it was so very rampant in that society and there were dozens of slaves owned by a single person. All these slaves, whether men or women, were totally dependent on their masters for their livelihood, and the way things were in Arabia at that time it was very difficult for them to think of any other economic activity independently. So the Qur’ān never demanded from these slave girls forced to prostitution to run away from their masters. Instead it comforted them by saying that if in spite of wanting to refrain from this abomination and having a severe dislike and aversion for it, they were driven into it by their masters, the Almighty shall forgive them:
But if anyone compels them, Allah will be forgiving and merciful to them. (24:33)
The second example is again of these slave women who of their own accord and without any coercion from their masters committed fornication. The Qur’ān says that they also cannot be administered this punishment because of improper upbringing and education and because of lack of family protection. So much so that if their husbands and masters had done all they could to keep them chaste and in spite of this they committed the crime, they shall be given only half this punishment ie, fifty lashes.
Then if they are kept chaste and then commit fornication, then they shall be given only half the punishment of chaste women. (4:25)
Similar is the case with executing a person who has murdered someone in self defence or in the defence of another individual.
Summing up, I would reiterate that all the punishments in the Qur’ān are extreme forms of chastisement and should only be administered if the criminal deserves no leniency, and if he does, lesser punishments should be given.
In other words, it can also be said that in this particular aspect the Islamic penal code is no different from other penal codes.