The Islamic penal system is but a branch of Shari’ah which is absolutely necessary in securing inherent human rights. Non Muslim countries picture the Islamic law as one that punishes criminals by stoning, mutilating and slashing. Islamic law is not simply a system of law but the Shari’ah is more of a code of conduct. It is said to have a broader application than any system of law. It embraces all aspects of man’s existence, his relations with God and his neighbors.
Sharia (/ʃəˈriːə/, Arabic: شريعة [ʃaˈriːʕa]), Islamic law or Sharia law is a religious law forming part of the Islamic tradition.It is derived from the religious precepts of Islam, particularly the Quran and the Hadith. In Arabic, the term sharīʿah refers to God’s immutable divine law and is contrasted with fiqh, which refers to its human scholarly interpretations. The manner of its application in modern times has been a subject of dispute between Muslim fundamentalists and modernists.
Traditional theory of Islamic jurisprudence recognizes four sources of sharia: the Quran, sunnah (authentic hadith), qiyas (analogical reasoning), and ijma (juridical consensus). Different legal schools—of which the most prominent are Hanafi, Maliki, Shafi’i, Hanbali and Jafari—developed methodologies for deriving sharia rulings from scriptural sources using a process known as ijtihad. Traditional jurisprudence (fiqh) distinguishes two principal branches of law, ʿibādāt (rituals) and muʿāmalāt (social relations), which together comprise a wide range of topics. Its rulings are concerned with ethical standards as much as with legal norms,assigning actions to one of five categories: mandatory, recommended, neutral, abhorred, and prohibited. Thus, some areas of sharia overlap with the Western notion of law while others correspond more broadly to living life in accordance with God’s will.
Classical jurisprudence was elaborated by private religious scholars, largely through legal opinions (fatwas) issued by qualified jurists (muftis). It was historically applied in sharia courts by ruler-appointed judges, who dealt mainly with civil disputes and community affairs. Sultanic courts, the police and market inspectors administered criminal justice, which was influenced by sharia but not bound by its rules. Non-Muslim (dhimmi) communities had legal autonomy to adjudicate their internal affairs. Over the centuries, Sunni muftis were gradually incorporated into state bureaucracies, and fiqh was complemented by various economic, criminal and administrative laws issued by Muslim rulers. The Ottoman civil code of 1869–1876 was the first partial attempt to codify sharia.
In the modern era, traditional laws in the Muslim world have been widely replaced by statutes inspired by European models.Judicial procedures and legal education were likewise brought in line with European practice. While the constitutions of most Muslim-majority states contain references to sharia, its classical rules were largely retained only in personal status (family) laws. Legislators who codified these laws sought to modernize them without abandoning their foundations in traditional jurisprudence. The Islamic revival of the late 20th century brought along calls by Islamist movements for full implementation of sharia, including hudud corporal punishments, such as stoning.In some cases, this resulted in traditionalist legal reform, while other countries witnessed juridical reinterpretation of sharia advocated by progressive reformers. Some Muslim-minority countries recognize the use of sharia-based family laws for their Muslim populations. Sharia also continues to influence other aspects of private and public life.
The role of sharia has become a contested topic around the world.Introduction of sharia-based laws sparked intercommunal violence in Nigeria and may have contributed to the breakup of Sudan. Some jurisdictions in North America have passed bans on use of sharia, framed as restrictions on religious or foreign laws. There are ongoing debates as to whether sharia is compatible with democracy, human rights, freedom of thought, women’s rights, LGBT rights, and banking.
Stoning is virtually the most grievous punishment under the Islamic law and is inflicted to those who commit the most pernicious of all social crimes. Stoning to death is the penalty imposed on adultery. The law requires four reliable witnesses who must have seen all the acts of penetration and that their testimony must be unanimous in every phase of the crime including minor details. If one is found to be contradictory, the four will receive 80 slashes each for slander.
Islamic law aspires to secure the stability of the cornerstone of society, the family. It is the family that generates the foundation of values of the societal order binding together the various institutions of the government. In this regard, Islam encourages the continuity of the family through the sanctity of marriage.
Sexual morality is highly regarded as a supreme virtue which in other advanced countries is but a part of life. Sexual adventure is just an ordinary thing in the West where immorality is unrestrained and oftentimes results to the disintegration of the institution of marriage and consequently disintegration of society’s other institutions.
The root cause is extramarital sex or unlawful sexual union. To prevent the adverse effect of this in society, it has to be uprooted by blocking the way to it. This is the reason why men and women are segregated and women are ordered to wear hijab (headscarf) to hide the hair and neck and usually has a face veil that covers the face.
Lashing is whipping or flogging, which connotes savagery, a punishment usually inflicted for conviction of an offense, like drunkenness. At least two witnesses are required to prove acts of drinking. Islamic law not only prohibits drinking of intoxicating liquor but all acts connected with alcohol, such as buying, selling, etc.
Shari’ah is not only concerned about the evil effects on the body but the consequences of it which are detrimental to morality and society. It is aimed at preventing commission of crimes by removing the root cause, thus eliminating or reducing criminality. It is true that the major cause of violence is intoxication.
Restrictions are imposed such as: flogging should not be done under severe heat or cold weather; it must not be inflicted on the naked body, on the head, face and private parts and should not cause wound and must not be confined on a particular part of the body. The whip must be of medium size and the intensity level of beating must be average.
It is said the lashing is done with control and in accord with justice not according to the whims of capricious guards. Flogging according to the President of the International Court of Justice is not a severe, inhuman punishment.
Depriving a person of any part of his body is mutilation. This is a punishment for theft or armed robbery where there is cutting off of hand or amputation. This is practiced to protect rightful ownership of property. Accordingly, it is said that this kind of punishment must be seen in the context of social security. The aim of the law is to create a society where nobody is forced by circumstances to steal.
Inasmuch as rights and duties are reciprocal in Islam, it cannot impose a duty without granting a corresponding right. If the State failed to provide its people of the basic necessities in life, such as, food, clothing and shelter, it has no right to impose the penalty for theft. It was in this construct when the cutting off of hand was waived during times of hunger and starvation.
The elements of the crime include two reliable witnesses and that the property stolen is sufficiently secured and the accused is mature and sane person and not forced by circumstances to commit the crime. The evidence that only 6 times the punishment was executed in 400 years proves that it was meant to prevent crime. Again, it is confessed that the punishment is carried out in humanely manner.
Muslim people consider Islamic law as the only perfect system of justice capable of solving all problems including criminality because it is believed to have been ordained by God. Muslims believe that punishment generates attitudes of disdain for crime and get rid of all the root causes of crime thus creating a crime-free society.