Islam’s Instructive Approach in Enacting Penal and Criminal Laws
By: Ayatullah Professor Muhammad Taqi Misbah Yazdi
Islam has enacted capital punishments for certain crimes, but in order to establish and prove them, it has also laid down difficult conditions, thus making it very problematic to prove those crimes. In dealing with the philosophy of divine laws, the considered wisdom behind punishments and penalties is the lesson taken from it which acts as a deterrent and thus prevents the spread of crimes and offenses. In order to reach this goal, there must be penalty commensurate to the crime and for heinous crimes capital punishment must be taken into account.
For example, if a light punishment—an insignificant fine or short-period detention—is taken into account for a criminal act like robbery, robbery in society will not stop and the hidden wisdom behind divine punishments and penalties will not be realized.
On the other hand, if it is easy to prove a crime and individuals can easily be punished, execution of punishments and penalties will spread in society because many deserve punishments, and thus the honor and reputation of many families will be tarnished. It is for this reason that Islam has made it difficult to prove a crime. For example, in case of the abominable act of fornication, Islam has considered heavy punishment and even ordered that the fornicators, man and woman, must be punished in public, and social considerations and human feelings must not cast a shadow on the implementation of the divine punishment.
In order to prevent moral corruption in society and family the punishment for fornication must be given in public and one must not shirk executing the punishment under the pretext of a Muslim’s reputation. On the other hand, however, Islam has set difficult conditions for proving such a crime. As a result, very few cases of the crime are actually proven and only a few among the fornicators are punished.
In proving that crime Islamic law has stipulated that four just witnesses must testify that they have personally seen the performance of the immoral act. If only three will testify, even if they are the most just and famous of people in society, not only will the crime not be proven and the accused be exonerated, but the judge will order the punishment of the three and penalty for calumny and false accusation against others will be exerted on them.
The existence of such meticulousness and strictness in the implementation of all laws of Islam, the penal codes in particular, shows that Islam pursues the realization of its lofty goals and aspirations, observes sublime values, but insists on ground realities and is not contented with mere idealism. In fact, the method of Islam in administering society is between idealism and realism and contains elements of both. Islam considers it necessary to observe lofty values and does not allow them to be tarnished in society just as done in non-religious and non-Islamic societies that have brought about widespread corruption and ample ignominy.
With the aim of keeping Islamic society free from this corruption and pollution, Islam has stipulated capital punishment for corruptors. On the other hand, however, Islam is realistic and accepts the fact that some people engage in corruption and violation of law for more than one reason. As such, it has laid down difficult conditions for proving a crime.
The purpose is the implementation of law by its guarantor using force and compulsion in case of violation, while observing that the action of man is conscious and done out of freewill and choice. On the other hand, the collective interests must be observed and one should not allow individuals to threaten the interests of society by misusing unlimited and unrestrained freedom.
The state’s fixed and alterable duties
Once we take a look at the laws we will find that some pertain to people who are obliged to abide by them, and the role of state in this context is to monitor their activities and present practical policies that invite them to respect law and confront violators. Others pertain to the state which is bound to implement them. These are related to needs of citizens, important economic activities, investment, and services which cannot be rendered by people and even if they are capable, there will be few volunteers to do so, and without them public interests will not be served. Thus, there is need for an organized, cohesive and systematic organization called “government” to render services such as defending the territorial integrity of a country against foreign invasions; administering war and procuring necessary military equipment and armaments; undertaking vaccination programs against contagious and epidemic diseases like polio, which can only be undertaken nationwide and at its opportune time with the government’s management and facilities; maintaining public health and providing medical services and facilities for all citizens; and effectively campaigning against the trafficking, distribution and use of ominous narcotics and drugs and punishing the merchants of death (drug traders).
It is true that by enjoining what is good, forbidding what is bad, not consuming narcotics, and preventing its distribution, people can play a role to a certain extent, but it is beyond their capability to launch an extensive and grand campaign against the ominous phenomenon and their limited facilities are insufficient for this campaign. The same is true in the case of moral corruption which has become rampant. Only the state or government is capable of combating them.
Some laws are concerned with needs that can be met by both government and people, but changing circumstances of time and space as well as social development create different ways of meeting them. Some social activities can be undertaken by people themselves in a simple form and to a limited extent at a given period of time, but with the emergence of new conditions and social development, they become complex and people can no longer undertake them. It is at this juncture that the state has to interfere and undertake the social activities that become complex. For example, rearing, training and educating children is the duty of all parents or citizens who must strive hard in this connection, but today the situation is such that if there was no strong “Ministry of Training and Education” in the country and laws related to compulsory education were not implemented, the percentage of literacy in our country would fall.
Similarly, in the light of new developments and conditions, issues such as public hygiene of cities and their lighting facilities are assigned to the government. In the past, they were not part of government duties. Some of them like radio and television were never an issue to be assigned to the government. With the emergence of social transformations new duties are assigned to the government—duties which if the government will not discharge will damage social advancement, and as a result, Islamic society will lag behind in the fields of science, technology and industry. Once training and education is weakened, the spiritual dimension of people will also be weakened because spiritual perfection is possible through knowledge and learning, and a society deprived of knowledge is also deprived of spirituality.
In view of what we have said, one can reexamine the status, fixed structure and elements of state. The elements and constituents of state in the absence of which the state will cease to exist are the following:
1. Guaranteeing the implementation of civil and legal laws in society such that in case of violation, they are imposed upon the people by use of force and violators are punished.
2. Securing permanent interests of society under all circumstances which remain unchanged by change in social conditions, and can be secured only by the state. For example, establishment of peace and order in society is the responsibility of government. Whether small or big, the government of a country must assume this important responsibility.
But the alterable interests and duties which are not assumed by the government in all situations, and which the people can also assume, and which are assumed by the government with the emergence of new conditions, cannot be considered part of the constitutive elements of state.