penal system and philosophy in islam
For a very brief survey of the history of pre-Islamic penal law, Hummurabi Law, Egyptian Law, Jewish Law, Greek Law and Roman Law have been discussed. Since the Western standards of human life, moral values, governmental objects, ethical obligations, ideas of justice, sources and principles or legislations are always changing from age to age, no persistent characterization of law in Western jurisprudence is possible. The Western law is a complete failure in defining crime, specifying its nature and appreciating its permanent standard and character. But when we turn to Islamic law, it appears superior to the Western law because it contains no ambiguity in its details: law in Shariah is a legal value established from divine communication which can be proved either through the text of the Quran or Sunnah or definite consensus of the Muslim scholars. Islamic concept of crime, like the concept of law, is permanent, unchanging and unanimous among all the scholars and schools of law: “Crime is an unlawful act for which punishment has been prescribed by the Shariah by way of fixation or discretion.”
All the theories of criminality, propounded by the Western Criminologists, originate from the distorted vision of human nature, based on ‘Trial and Error Method’. According to Islam, it is absolutely false and baseless to say that some of the human beings were created with bad natures, or given birth with inherent criminal tendencies. Human nature, the Quran and traditions emphasise, is absolutely free of all bad potentials and wrong tendencies, and no criminal characteristic is inherent in it: “No child is born but conforms to the right nature, then his parents make him a Jew, or a Christian or a Magian, as a least is born entire in all its limbs (or without a defect). Do you see one born maimed and mutilated?” Lombrosians and Freudians throw the responsibility of crime on nature, whereas Islam declares that nature is perfectly good and the seeds of criminality are not inborn but self-sown during the life of an individual. The theory of inborn criminality advanced by the Biological school of criminologists is absolutely wrong and does not find any place in Islamic philosophy of criminality. As man is free to accept and develop the influence of right or wrong instinct, criminality cannot be accepted as an ingrained character of human nature.
In order to decide whether the idea of ‘pre-determined criminality’ either biological, psychiatric, psychological or in any other name is acceptable to Islam or not, we are positively obliged to study the concept of ‘human freedom’. As far as the concept of freedom of man in his acts is concerned, there is a delicate distinction between ‘creation of an act’ and ‘performance of an act’. The view of Muslim Jurists is that man is neither the ‘creator’ of his deeds nor are his actions divinely ‘predetermined’. The reality is that all the acts and deeds have been indiscriminately created by Allah, yet human beings have not been deprived of their free will and choice regarding commission or omission of their acts. Thus Allah is the Creator of the acts, whereas man is their performer and operator. Now if it is accepted that the sin of crime originates from some biological causes due to which the criminal is compulsorily supposed to possess some brutal characteristics, then no question of free will in adopting a particular conduct does arise. Thus man cannot be considered a moral agent, because he is a born criminal and no choice has been left for him to earn either good or bad behaviour. According to Islamic theory, human conduct is not predetermined in any sense: it is exclusively self-earned during his moral struggle since he is free in his acts of commission and omission. This is the only factor that makes man morally and legally responsible for his acts and deeds. Hence Islamic concept of human freedom completely nullifies the philosophy of pre-determined criminality.
According to Psychiatric/Pathological Theory, the cause of every criminal act and delinquency is traced in the form of mental disorder, because it supposes that all crimes originate from various kinds of psychiatric diseases. This theory leads us to the contemptuous concept of ‘determined criminality’, which is absolutely unacceptable to Islam.
Divine justice demands that every adult and sane person should be responsible for his/her own criminal behaviour. The Holy Quran says in this connection: “On me is the guilt of my crime and I am clear of that of which you are guilty.”
This verse clearly emphasises the fact that the criminal liability can neither be transferred nor explained away. The Western criminologists have indiscriminately explained the criminality in such a way that the crime, in spite of being an intentional and voluntary act, has become absolutely involuntary and unintentional. They have expressed the phenomenon of crime in terms of determinism; hence, no liability can be placed upon the individual. Therefore, there can be no justification of punishments, and the whole penal system becomes a futile and aimless exercise.
Islam has provided the balanced view because the liabilities of the individual and the society are separately determined. The cause of criminality is appreciated in such a manner that, instead of justifying the crime, effective means and devices are suggested to eliminate it from the society.
Regarding psychology of the criminal we must remember that if the external factors, such as circumstantial influences, opportunities and temptations go on affecting the internal character and psychology of the person constantly, and no measures are adopted to reform them, he becomes a habitual criminal, and if those factors influence the man incidentally, he becomes the occasional one. If proper moral and spiritual training and adequate socio-economic circumstances are provided to the individuals, their instinctive urges and mental faculties are organised to function towards the right direction. Human instincts and desires, when properly fulfilled in a balanced manner, do not create any tendency of criminality.