By Ibn ‘Ashur (d. 1973)
Translated by Mohamed El-Tahir El-Mesawi
Taken from Ibn Ashur: Treatise on Maqasid Al-Shariah
Thus, the aim of the Sharī’ah with regard to the legislation of fixed penalties (Ḥudūd), just retribution (Qiṣāṣ), discretionary penalties (ta’zīr) and injury compensation (urūsh al-jināyāt) is to achieve the following three objectives:
- To reform the criminal
- To satisfy the victim
- To deter the imitator of criminals
(1) The first objective, that is, reformation, refers to the highest objective of the Sharī’ah, which is bringing reform (iṣlāḥ) to every aspect of the daily lives of individuals comprising a society. This we discussed in chapter 12 on the all-purpose principle of Islamic legislation. Thus, God says: “Now as for the man who steals and the woman who steals, cut off the hand of each of them in requital for what they have done, as a deterrent ordained by God: for God is Almighty, Wise” (5:38). Punishing the criminal aims at removing from his soul the evil that incites him to commit crime. This evil mostly becomes more deeply rooted in the criminal when the idea of committing a crime is translated into practice. That is why God has followed the implementation of the ḥadd with the phrase: “But as for him who repents after having thus done wrong, and makes amends, behold, God will accept his repentance” (5:39).
Ḥudūd constitute the maximum possible sentences, for they have been instituted for the most serious crimes. By intensifying these prescribed penalties, the aim of the Sharī’ah is to deter people and remove evil from the offender. Accordingly, when it is proven that a crime has been committed by mistake, the ḥadd punishment is waived. Similarly, if there is the slightest doubt or uncertainty (shubuhah) that could be used in favor of the offender, then the matter is considered on the same level as a mistake, in the sense that Sharī’ah do not apply. Furthermore, if it is revealed that the unintentional offense has been committed owing to extreme negligence to take the necessary precautions, the negligent person shall receive the appropriate disciplinary treatment.
(2) When seeking satisfaction for the victim, we must remember that it is part of human nature to harbor rancor against aggressors and anger against those who wrong us in error. These feelings often push people to take vengeance against their aggressors in a way that always transgresses the bounds of justice. This is because vengeance bursts out of a passionate anger that usually affects people’s rational thinking and blinds them to the light of justice. Thus, when the victim or his relatives and defenders (awliyā’) are capable of retaliating, they will soon do so; otherwise, they will conceal their wrath, thus awaiting the first opportunity for revenge. It is against this that God has cautioned us by saying: “but even so, let him not exceed the bounds of equity in [retributive] killing” (17:33). Under these circumstances, revenge and crime will never end and the social order of the community will never settle on peace and stability. Therefore, it has been the purpose of the Sharī’ah to undertake the task of satisfying the victim and putting an end to the age-old practice of vengeance and counter-vengeance. Hence, the Prophet said during the Farewell Pilgrimage (Ḥajjat al-Wadā‘) “Abolished are also the blood-feuds of the period of pagan ignorance (Jāhiliyyah).”
Likewise, the purpose of giving the victim fair satisfaction takes into account the inclination for revenge that is rooted in human nature. Accordingly, the Sharī’ah has given the relatives of a murder victim (qatīl) the right of guiding the convicted offender (qātil), under the supervision of the judge, by a rope in his hand to the place where just retribution will be inflicted on him, which is known as qawad (retaliation). This is meant to satisfy them to the same extent if they were to take justice into their own hands.
The satisfaction of the victim is more important in the Sharī’ah than the reformation of the offender. Therefore, it carries greater weight when it is not possible to achieve both at the same time. An example is qiṣāṣ, where the reformation of the criminal cannot be achieved, so priority is given to the satisfaction of the victim or his relatives. For this, there is no point in the well-known disagreement amongst the scholars over the question of consent by the heirs entitled to exact qiṣāṣ (awliyā’ al-dam) to a pardon and blood money instead of inflicting retaliation, if the offender’s wealth is sufficient for that. In this respect, Ashhab’s view that the murderer must be forced to pay the blood money is more tenable, contrary to Ibn al-Qāsim’s opinion. That is why they agreed that if some of the relatives of the victim forgive the offender, qiṣāṣ is then cancelled. These factors, of course, do not apply to killing in brigandage (ḥirābah) and assassination (ghīlah), as we shall point out shortly.
(3) The third purpose, deterring imitators, is implied by God’s saying in the Qur’an: “As for the adulteress and adulterer – flog each of them with a hundred stripes, and let not compassion for them keep you from [carrying out] this law of God, if you [truly] believe in God and the Last Day; and let a group of the believers witness their chastisement” (24:2). Thus, Ibn al-‘Arabī said in his book Aḥkām al-Qur’an: “The real interpretation of this is that the execution of the ḥadd deters the one on whom it is implemented, and those who attend and witness it will learn a lesson from it and be deterred by it. Its story will then be on everybody’s lips, thus warning those who come after.”
It thus reverts to the purpose of reforming the community as a whole. This is because the execution of punishment according to established rules discourages perverse people and criminals from satisfying their devilish desires by committing crimes. Likewise, anything that acts as a deterrent constitutes a punishment. However, deterring the general public [other than the offender] must not transgress the limits of justice. Therefore, it has been an aspect of the wisdom of the Sharī’ahthat has laid down the punishment of the offender as a deterrent to others without violating justice. Hence, the Sharī’ah policy in instituting ḥudūd, qiṣāṣ and other types of penalties is meant to deter people from taking criminals as models.
Nevertheless, a pardon (‘afw) by the victim under certain circumstances does not defeat the purpose of deterrence, for it only rarely happens, and therefore it cannot be taken as the main reason for the offender to commit a crime. Consequently, we find that the Sharī’ah does not take into consideration forgiveness in the crimes that do not affect the right of a specific party, such as theft, the consumption of intoxicants, and adultery, because these offences are a violation of the very essence of legislation itself, and so too is brigandage (ḥirābah). As for assassination, no pardon by the relatives of the victim is accepted, owing to its hideousness. However, the repentance of the brigand (muḥārib) before his arrest has been accepted out of concern for peace and security and as a means of encouraging his companions to follow his good example.