Judicial System In Islam

The Judicial System in Islam
==========================
Introduction

Description: The process Islam has laid in regards to seeking and meting out justice in Society.
By The Editorial Team of Dr. Abdurrahman al-Muala (translated by islamtoday.com)

Man is a social being by nature. He cannot live perpetually on his own, completely independent of others. People are interdependent. Consequently, friction arise between them when their personal interests come into conflict with each other, or when what they perceive as their individual rights infringe upon those of others. Conflicts between them inevitably break out. In some cases, one party to the conflict might be strong and aggressive while the other is weak and condescending, incapable of defending his rights. Because of this, it becomes necessary for there to be a way to prevent people from oppressing one another, to ensure that the weaker members of society receive justice, and to determine right from wrong when issues get complicated or uncertain. This can only be realized through a judge that has the power to give legal verdicts in cases of dispute.

For this reason, we find that the existence of a judge is considered by Islamic law and the
laws of all the other revealed religions to be both a religious obligation and a necessity of
human life. Allah says:
“We have sent Messengers with clear proofs, and sent down with them the Scripture and
the Balance that mankind can establish justice…” (Quran 57:25)

Islam – the religion that Allah wants for mankind from the time that He sent Muhammad,
may the mercy and blessings of Allah be upon him until the Day of Judgment – shows great
concern for the judicial system and those appointed to carry out its responsibilities. Islam
prescribes for it many legal injunctions. How else could it be, when Islam is the religion of
mercy, equality, and justice? It is the religion that comes to free people from worshipping
Creation and bring them to the worship of Allah. It is the religion that comes to remove
people from oppression and iniquity and bring them to the highest degree of justice and
freedom.

Allah’s Messenger was the greatest of judges. He used to act in the capacity of judge in the
city of Medina, which was the first Islamic state. He used to appoint people to be judges in
other cities. Among these were `Utâb b. Asyad who was sent to Mecca, Ali b. Abu Talib
and Muadh b. Jabal, both of whom were sent to Yemen.

In the era of the Rightly Guided Caliphs, the head of state continued to be the one to appoint
judges, govern their affairs, protect their independence, and keep the governors and political
appointees – and even the Caliphs – subject to the judges’ verdicts. Umar b. al-Khattaab,
the second Caliph, was the first person to make the judge an independent entity, distinct
from the Caliph and the governors.

In this way, the judicial system continued to evolve throughout the early Islamic era, during
the Umayyad era, and well into the Abbasid era. The office of Chief Justice came into
being at this time. The Chief Justice became responsible for appointing and removing
judges. He was responsible for supervising their behavior and monitoring their
performance. The first person to be appointed to this post was the justice Abu Yusuf, the
student of the great jurist Abu Haneefah (may Allah have mercy on them both). Thereafter,
this office became widespread throughout the Muslim lands. It continued to exist up to the
fall of the Ottoman Empire.

The names of many just judges have been preserved in Islamic History. Their names have
become like synonyms for justice and integrity. Many pages in the history books are
devoted to the lives and careers of eminent judges like Iyâs b. Muawiyah, Shurayh b.
Abdallah, al-`Izz b. `Abd al-Salam and others who applied the teachings of Islam in the best
possible manner. They give us a living example of how a Muslim judge is supposed to
conduct himself.

We should mention, since we are discussing the Islamic judicial system, that Islam sets
down broad guidelines and basic principles concerning the affairs of life and rarely concerns
itself with the particular details of life. This is so these guidelines can stay relevant for
every time and place. One of these guidelines is that establishing justice among people is an
obligation that has to be carried out. As for the manner of achieving this objective, this has
not been detailed by the sacred texts. This has been left for the people of each generation to
deal with in a way most suited to their unique set of circumstances. The only condition is
that whatever methods are chosen must not run contrary to Islamic Law.

The Judicial System in Islam:

Its Legal Basis and Islam Ruling
Defining the Judicial System and its Legal basis

The judicial system in Islam is a system for deciding between people in litigation with the
aim of settling their disputes in accordance with the injunctions of the Divine Law,
injunctions that are taken from the Quran and Sunnah.

All of the Messengers of Allah (peace be upon them) acted as judges. Allah says:
“And remember David and Solomon, when they gave judgment concerning the field when
people’s sheep had browsed therein at night, and We were witness to their judgment. And
We made Solomon to understand the case. And to each of them We gave good judgment
and knowledge.” (Quran 21:78-79)

Allah also says:
“O David, verily we have placed you as a successor on Earth, so judge between people in
truth, and do not follow your desires for it will mislead you from the path of Allah. Verily,
those who stray from the path of Allah have a severe punishment because they forgot the day
of reckoning.” (Quran 38:26)

Prophet Muhammad, who came with the final and eternal Message, was ordered by Allah to
pass judgment in disputes just as he was ordered to spread the word of Allah and call people
to Islam. This is mentioned in the Quran in a number of places. Allah says, for instance:
“So judge (O Muhammad) between them by what Allah has revealed and do not follow their
vain desires, but beware of them lest they turn you away from some of what Allah has sent
down to you.” (Quran 5:49)

Allah also says:
“…And if you judge (O Muhammad), judge between them with justice. Verily, Allah loves
those who act justly.” (Quran 5:42)
And He says:
“But no, by your Lord, they shall have no faith until they make you (O Muhammad) judge in
all their disputes and find in themselves no resistance against your decisions and accept them
with full submission.” (Quran 4:65)
The Sunnah also provides for the legal basis of the Islamic judicial system. It is related by
Amr b. al-Aas that the Prophet said:
“If a judge gives a judgment using his best judgment and is correct, then he receives a
double reward (from Allah). If he uses his best judgment but makes a mistake, then he
receives a single reward.” (Ahmed)

Allah’s Messenger said:
“You should not wish to be like other people, except in two cases: a man who Allah has
given wealth and he spends it on Truth and another who Allah has granted wisdom and he
gives verdicts on its basis and teaches others.” (Saheeh Al-Bukhari, Saheeh Muslim)
Many scholars have related to us that there is consensus among Muslims on the legal status
of the judicial system in Islam. Ibn Qudamah says:
“The Muslims are unanimously agreed that a judicial system must be established for the
people.”

The Islamic Ruling Concerning the Judiciary
The jurists agree that the duties of the judge are an obligation that must be carried out by
society. If some members of society carry out this duty, it is sufficient for everyone. If, on
the other hand, everyone neglects it, then everyone in society is sinful.
The proof that these duties are obligatory comes from the Quran:
“O you who believe! Stand out firmly for justice...” (Quran 4:135)
It is only necessary for a small number of individuals to perform judicial duties since judicial
concerns come under the broad duty of enjoining what is right and forbidding what is
wrong. It is not obligatory for every individual to carry out this duty as long as some people
are doing so.

The affairs of the people will not be correct and upright without a judicial system. It is,
consequently, obligatory for one to exist, just like it is necessary to have a military. Imam
Ahmad, one of the greatest and most well-known scholars of Islam said:
“People have to have a judicial authority or their rights will disappear.”
The duties of the judiciary include enjoining what is right, helping the oppressed, securing
people’s rights, and keeping oppressive behavior in check. None of these duties can be
performed without the appointment of a judiciary.

A judicial system is a necessity for the prosperity and development of nations. It is needed
to secure human happiness, protect the rights of the oppressed, and restrain the oppressor.
It is the way to resolve disputes and ensure human rights. It facilitates enjoining what is
right, forbidding what is wrong, and curbing immoral behavior. In this way, a just social
order can be enjoyed by all sectors of society, and every individual can feel secure in his life,
property, honor, and liberty. In this environment, nations can progress, civilization can be
achieved, and people are free to pursue what will better them both spiritually and materially.
=========================== ===========================

Crime and Punishment in Islam:
Introduction
Security and stability are basic human needs, no
less important than food and clothing. Without
security and stability, a human being is not able to
properly conduct his daily life, let alone come up
with new ideas or contribute to the development of
a high level of civilization.

Man has been conscious of the need for security
since the beginning of his life on Earth, and he has
continuously expressed his awareness of this need
in many ways. With the formation and evolution
of human society, he has expressed this and other
needs through the establishment of a state and the
formation of laws. This was accomplished in
order to ensure general security, settle disputes and
conflicts that threaten society, and oppose external
threats to its security posed by other nations. The
development of these man-made laws did not
come to completion except in the last few
centuries as the result of a long process of trial and error.

By contrast, the Law of Islam was sent down to Muhammad, may the mercy and blessings
of Allah be upon him, in its complete form as part of His final message to humanity. Islamic
Law pays the most careful attention to this matter and provides a complete legal system. It
takes into consideration the changing circumstances of society as well as the constancy and
permanence of human nature. Consequently, it contains comprehensive principles and
general rules suitable for dealing with all the problems and circumstances that life may bring
in any time or place. Likewise, it has set down immutable punishments for certain crimes
that are not affected by changing conditions and circumstances. In this way, Islamic Law
combines between stability, flexibility, and firmness.

From what angle does Islam approach combating crime? What are the principles that the
Islamic penal code is based upon? What are the distinguishing features of this code? What
are the measures that it employs to combat crime? What types of punishments exist in
Islam? What are the objectives behind their being legislated? These are the questions that
will be dealt with in the following pages.

The Islamic Approach to Combating Crime

The ultimate objective of every Islamic legal injunction is to secure the welfare of humanity
in this world and the next by establishing a righteous society. This is a society that worships
Allah and flourishes on the Earth, one that wields the forces of nature to build a civilization
wherein every human being can live in a climate of peace, justice and security. This is a
civilization that allows a person to fulfill his every spiritual, intellectual, and material need
and cultivate every aspect of his being. This supreme objective is articulated by the Quran
in many places. Allah says:
“We have sent our Messengers with clear signs and have sent down with them the book and
the criterion so that man can establish justice. And we sent down iron of great strength and
many benefits for man...” (Quran 57:25)
And He says:
“…Allah wants ease for you, not hardship...” (Quran 2:185)
And He says:
“Allah wants to make things clear for you and to guide you to the ways of those before you
and to forgive you. Allah is the All knowing, the Wise. Allah wants to forgive you and wants
those who follow their desires to turn wholeheartedly towards (what is right). Allah wants
to lighten your burdens, and He has created man weak.” (Quran 4:26-28)
And He says:
“Allah commands justice, righteousness, and spending on ones relatives, and prohibits
licentiousness, wrongdoing, and injustice…” (Quran 16:90)

Since the Islamic legal injunctions are aimed at achieving human welfare, they can all be
referred back to universal principles which are necessary for human welfare to be secured.
These universal principles are:
1. The preservation of life.
2. The preservation of religion.
3. The preservation of reason.
4. The preservation of lineage.
5. The preservation of property.
The Islamic penal system is aimed at preserving these five universal necessities. To
preserve life, it prescribes the law of retribution. To preserve religion, it prescribes the
punishment for apostasy. To preserve reason, it prescribes the punishment for drinking. To
preserve lineage, it prescribes the punishment for fornication. To preserve wealth, it
prescribes the punishment for theft. To protect all of them, it prescribes the punishment for
highway robbery.

It should therefore become clear to us why the crimes for which Islam for which the Law
has prescribed fixed punishments are as follows:
1. Transgression against life (murder or assault).
2. Transgression against property (theft).
3. Transgression against lineage (fornication and false accusations of adultery).
4. Transgression against reason (using intoxicants).
5. Transgression against religion (apostasy).
6. Transgression against all of these universal needs (highway robbery).

Crime and Punishment in Islam: Forms of
Punishment in Islam

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 Allah, 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

Crime and Punishment in Islam:

‘Hudood’-Prescribed Punishments

1. Prescribed Punishments
Crimes that fall under this category can be defined as legally prohibited acts that Allah
forcibly prevents by way of fixed, predetermined punishments, the execution of which is
considered the right of Allah.

These punishments have certain peculiarities that set them apart from others. Among these
are the following:

1. These punishments can neither be increased nor decreased.
2. These punishments cannot be waived by the judge, the political authority, or the victim
after their associated crimes have been brought to the attention of the governing body.
Before these crimes are brought before the state, it may be possible for the victim to pardon
the criminal if the damage done was only personal.
3. These punishments are the ‘right of Allah’, meaning that the legal right involved is of a
general nature where the greater welfare of society is considered.

The following crimes fall under the jurisdiction of the fixed punishments:
1. Theft
Theft is defined as covertly taking the wealth of another party from its secure location with
the intention of taking possession of it.

2. Highway or Anykind of Robbery
Highway robbery is defined as the activity of an individual or a group of individuals who go
out in strength into the public thoroughfare with the intention of preventing passage or with
the intention of seizing the property of passers-by or otherwise inflicting upon them bodily
harm.

3. Fornication and Adultery
This is defined as any case where a man has coitus with a woman who is unlawful to him.
Any relationship between a man and a woman that is not inclusive of coitus does not fall
under this category and does not mandate the prescribed, fixed punishment.

4. False Accusation
This is defined as accusing the chaste, innocent person of fornication or adultery. It also
includes denying the lineage of a person from his father (which implies that his parents
committed fornication of adultery). False accusation includes any claim of fornication or
adultery that is not backed up by a proof acceptable to Islamic Law.

5. Drinking
One of the most important objectives of Islam is the realization of human welfare and the
avoidance of what is harmful. Because of this, it “permits good things and prohibits
harmful things.” Islam, thus, protects the lives of people as well as their rational faculties,
wealth, and reputations. The prohibition of wine and the punishment for drinking it are
among the laws that clearly show Islam’s concern for these matters, because wine is
destructive of all the universal needs, having the potential to destroy life, wealth, intellect,
reputation, and religion.
Allah says:
“O you who believe! Verily wine, gambling, idols, and divination are but the abominations
of Satan’s handiwork, so abandon these things that perchance you will be successful. Satan
only wishes to cause enmity and hatred between you through wine and gambling and to
prevent you from the remembrance of Allah and prayer. Will you not then desist?” (Quran
5:90-91)

6. Apostasy
Apostasy is defined as a Muslim making a statement or performing an action that takes him
out of the fold of Islam. The punishment prescribed for it in the Sunnah is execution, and it
came as a remedy for a problem that existed at the time of the Prophet, may the mercy and
blessings of Allah be upon him. This problem was that a group of people would publicly
enter into Islam together then leave Islam together in order to cause doubt and uncertainty in
the hearts of the believers. The Quran relates this event to us:
“A group from the People of the Scripture said: ‘Believe in what is revealed to those who
believe at the beginning of the day, then disbelieve at the end of the day, so perhaps they
might return from faith.” (Quran 3:72)
Thus, the prescribed punishment for apostasy was instituted so that apostasy could not be
used as a means of causing doubt in Islam.
At the same time, the apostate is given time to repent, so if he has a misconception or is in
doubt about something, then his cause of doubt can be removed and the truth clarified to
him. He is encouraged to repent for three days.

Crime and Punishment in Islam: Retribution
and Discretionary Punishments
2. Retribution
This is the second type of punishment in Islamic Law. This is where the perpetrator of the
crime is punished with the same injury that he caused to the victim. If the criminal killed
the victim, then he is killed. If he cut off or injured a limb of the victim, then his own limb
will be cut off or injured if it is possible without killing the criminal. Specialists are used to
make this determination.

Important Rules Regarding Retribution

1. Retribution is not lawful except where the killing or injury was done deliberately. There
is no retribution for accidentally killing or injuring someone. Allah says:
“O you who believe, retribution is prescribed for you in the case of murder...” (Quran 2:178)
And He says:
“…There is retribution in wounds...” (Quran 5:45)
2. In the crimes where the criminal directly transgresses against another, Islam has given
the wish of the victim or his family an important role in deciding whether or not the
punishment should be carried out. Islam permits the victim to pardon the perpetrator,
because the punishment in these crimes is considered the right of the victim. Islam even
encourages pardon, promising a reward in the hereafter for the one who does. Allah says:
“If anyone waives the right to retaliation out of charity, it shall be an expiation for him.”
(Quran 5:45)
The pardon can either be to the payment of blood money, a fixed, monetary compensation,
or can be total, where no worldly compensation is demanded. Allah says:
“To forgive it is closer to piety...” (Quran 2:237)
3. The punishment must be carried out by the government. The family of the victim
cannot carry it out.

The Wisdom behind Retribution:
With regard to Islamic punishments in general, and retribution in specific, we find that they
have two complementary characteristics. The first of these is the severity of the
punishment. This is in order to discourage the crime and limit its occurrence.
The second characteristic is the difficulty of establishing guilt, reducing the opportunities for
carrying out the punishment, and protecting the accused. In this vein, we see the principle
that punishments are waived in the presence of doubt, and that the benefit of the doubt is
always given to the accused. Some prescribed punishments are even waived on the grounds
of repentance, as we can see in the case of highway robbery. This is also seen in the
permissibility of pardon in the case of retribution and the fact that pardon is encouraged and
preferred.

These two elements complement each other in that crime is effectively discouraged,
protecting society, and the rights of the accused are safeguarded by the fact that speculation
and accusations cannot be grounds for punishment, and that the accused enjoys the greatest
guarantee of justice and being spared the punishment whenever possible. Most people will
abstain from committing crime, because of the severity of the punishment, and the
punishments for these crimes will rarely be carried out. In this way, the general security of
society and the rights of the individual are equally realized.

3. Discretionary Punishments
These are punishments that are not fixed by Islamic Law, for crimes that either infringe on
the rights of Allah or the rights of an individual, but do not have a fixed punishment or a set
expiation.

Discretionary punishments are the broadest category of punishments, because the crimes
that have fixed punishments are few in number and all other crimes fall under the scope of
this last category.

They are the most flexible type of punishment, because they take into consideration the
needs of society and changing social conditions. Consequently, they are flexible enough to
realize the maximum general benefit to society, effectively reform the criminal, and reduce
the harm that he causes.

Islamic Law has defined different types of discretionary punishments starting from
exhortations and reprimands to flogging, to fines, and to imprisonment. These discretionary
measures are left to the decision of the legal authorities within the general framework of
Islamic Law and the universal purposes of Islam that balance between the right of society to
be protected from crime and the right of the individual to have his freedoms protected.

Crime and Punishment in Islam:

The Objectives of the Islamic Penal System
The Islamic penal system has many objectives, the most important of which are as follows:
The First Objective: Islam seeks to protect society from the dangers of crime. It is
common knowledge that if crimes are not countered with serious punishments, then society
will be in grave danger. Islam seeks to make social stability and security widespread,
making life in society secure and peaceful. It has made this consideration a platform for
action, legislating punishments that will discourage crime. This purpose has been articulated
by the following verse that discusses retribution and its effects on society:
“There is (preservation of) life for you in retribution, O people of understanding, that you
may become pious.” (Quran 2:179)

If the murderer, or any other criminal for that matter, knows the extent of the negative
consequences for himself that his crime will cause, he will think a thousand times before
committing it. Awareness of the punishment will cause the criminal to abstain from
committing the crime in two ways. The criminal who has already been subject to the
punishment will most likely not return to the crime again. As for the rest of society, their
awareness of the effects of this punishment will keep them from falling into the crime. To
realize a general effect from the punishment, Islam has established the principle of publicly
announcing when it will be carried out. Allah says:
“…A group of the believers should witness the punishment.” (Quran 24:2)

The Second Objective: Islam seeks to reform the criminal. The Quran often makes
mention of repentance in association with the crimes that it deals with, making it clear that
the door to repentance is open whenever the criminal abandons his crime and behaves
properly. It has made repentance a means of waiving a fixed punishment in some instances,
like the punishment for highway robbery. Allah says:
“…except for those who repent before you take hold of them. Then know that Allah is the
Forgiving, the Merciful.” (Quran 5:34)
Allah says regarding the punishment for fornication:
“It they both repent and mend their ways, then leave them alone. Verily, Allah is the
Accepter of repentance, the Merciful.” (Quran 4:16)
Allah says after mentioning the punishment for false accusation:
“… except for those who repent afterwards and makes amends, then verily Allah is the
Forgiving, the Merciful.”

Allah says after mentioning the prescribed punishment for theft:
“Whoever repents after his wrongdoing and makes amends, then verily Allah will accept his
repentance and verily Allah is the Forgiving, the Merciful.” (Quran 5:39)
This objective is seen more frequently with regard to discretionary punishments, whereby it
is incumbent upon the judge to take into consideration the circumstances of the criminal and
what will insure his betterment.

The Third Objective: The punishment is a recompense for the crime. It is undesirable to
treat a criminal lightly who threatens the security of society with danger. The criminal
should receive his just recompense as long as he is pleased with taking the path of evil
instead of the path of righteousness. It is the right of society to be secure in its safety and
the safety of its individual members. The Quran has asserted this objective when
mentioning a number of punishments. Allah says:
“The thieves, male and female, cut off their hands as a recompense for what they have
earned...” (Quran 5:38)

“The recompense for those who wage violent transgression against Allah and His Messenger
and who go forth spreading corruption in the Earth is that they should be killed or crucified
or that their hands and feet should be cut off on alternate sides or that they should be sent
into exile…” (Quran 5:33)

==========================END==========================