ALIGARH MUSLIM UNIVERSITY

CENTRE JANGIPUR MURSHIDABAD

Session: 2019-20

TOPIC
THEORIES OF PUNISHMENT: ISLAMIC AND COMMON LEGAL SYSTEM

SUBJECT
LEGAL THEORY-II

Submitted to Submitted by
Dr. Mohd Arif Mohd Yusuf
Assistant Professor, Faculty of Law B.A.LL.B. (Hons) 6th Semester
AMU, Centre Jangipur Murshidabad 17 BALLB-23
GK-3467
 CERTIFICATE

This is to certify that Mohd Yusuf of B.A.LL.B. (Hons) VIth Semester of Aligarh Muslim
University Centre Jangipur Murshidabad has completed his assignment of Legal Theory on the
topic “Theories of Punishment: Islamic and Common Legal System” under guidance of Dr.
Mohd Arif.

Date: 03/05/2020
Sign:
 ACKNOWLEDGEMENTS

I, Mohd Yusuf would like to express my special thanks of gratitude to my teacher Dr. Mohd Arif
who gave me the golden opportunity to do this assignment on the topic “Theories of Punishment:
Islamic and Common Legal System” which also helped me in doing a lot of research. I would
also like to thank my friends who helped me a lot in finalizing this assignment. Last but not the
least I would like to thank almighty for the constant blessing on me.

Mohd Yusuf
 CONTENTS

Page No.

1. INTRODUCTION…………………………………………………………………………….1

2. PUNISHMENT IN ISLAM……………………………………………………………………..2

3. PUNISHMENT IN WESTERN LEGAL SYSTEM………………………………………………...3

3.1 THE DETERRENT THEORY OF PUNISHMENT…………………………………………….3
3.2 THE PREVENTIVE THEORY OF PUNISHMENT……………………………………………4
3.3 THE RETRIBUTIVE THEORY OF PUNISHMENT…………………………………………...5

4. CONTRADICTION BETWEEN ISLAMIC AND WESTERN LEGAL SYSTEM………………………5

5. CONCLUSION……………………………………………………………………………….7

6. BIBLIOGRAPHY…………………………………………………………………………….9
1. INTRODUCTION
The unwanted and unpleasant imposition of something upon a person or group of persons by a
competent authority because of their unacceptable behaviour to the authority is known as
punishment. There must be an authority behind the imposition of punishment. Inflicting something
upon a person without competent authority is not punishment. It may be either revenge or
something else. All the schools of thought provide justifications for punishment. The basic
concepts for the justification of punishment are retribution, which is the equal requital for the harm
caused, the deterrence to prevent others to commit the same harmful acts, the rehabilitation and
the incapacitation of the wrongdoer from committing the same crime again. These justifications
are provided by different law schools with a different approach for achieving the same desired
objectives. For example, the incapacitation, in western law includes the imprisonment or isolation
of the victim while in the Islamic law the removal of hand in cases of theft, have the objective to
make the wrongdoer incapable of committing the crime again. However, the Islamic law and the
western law schools are not always at the same page regarding the object of punishment. They
may vary and thus produces contrasting effects on the society.

Punishments are justified by four main objects namely: (i) Retribution, which is the equal requital
for the injured party, (ii) Deterrence for other ill-minded people from committing crimes, (iii)
Rehabilitation and (iv) Incapacitation, which is to make the victim of punishment incapable of
committing the same crime again like removal of hand in cases of theft or isolation of criminal.

Each society has its own way of social control for which it frames certain laws and also mentions
the sanctions with them. These sanctions are nothing but the punishments. ‘The first thing to
mention in relation to the definition of punishment is the ineffectiveness of definitional barriers
aimed to show that one or other of the proposed justifications of punishments either logically
include or logically excluded by definition.’ Punishment has the following features:
➢ It involves the deprivation of certain normally recognized rights, or other measures
considered unpleasant
➢ It is consequence of an offence
➢ It is applied against the author of the offence
➢ It is applied by an organ of the system that made the act an offence.

Page | 1
2. PUNISHMENT IN ISLAM
The main object of punishment in Islam is to prevent the commission of crime. For this purpose
Islam provides a system of imposing harsh punishment on the criminals. However, the procedure
to be followed for the conviction is much more difficult. The reason is that the Prophet (S.A.W)
has given preference to the non-conviction of an innocent man over convicting criminals. The
punishment may or may not be proportional to the crime committed, as proportional punishment
will require the evaluation of certain complex factors, like motive behind the commission or the
circumstances in which the crime has been committed, which a judge of ordinary human prudent
is incapable of evaluating efficiently. Moreover, penalties awarded in Islam are not punishments.
These penalties are known as Hadoods which means boundaries. It signifies that the punishment
in Islam is regulative in nature. Every person has certain rights and obligations which must be
respected by others. For this purpose, Islam has advised to observe certain boundaries and
limitations in order to maintain peace in the society. Liabilities are incurred upon the person who
crosses these boundaries. Similarly, Islamic law educate the people about the outcome of the
punishment and thus prevent and deter them from committing the crimes. The Quran describe the
Hadoods as exemplary punishments from God (al-Ma’ida 5:38). It means that these penalties
imposed upon the person are exemplary in nature. They become examples for those who have
criminal mentality. The like-minded criminals become aware of the fact that committing crime is
not worthy business. In Islamic law criminals are punished for committing crimes. However, the
provision for the rehabilitation also exists. According to Islamic law the reformation is either
before commission of crime so that the criminal may not commit the crime or it should be after
punishing the criminal. Once the criminal is punished for his crime he should be treated like
innocent people. The double standard for the ex-convict is forbidden in Islam. Society is the best
place for the reformation of the criminals after being punished. Keeping the criminals in prisons,
which is the absolute community of criminals, will enhance the criminal mentality rather than the
reformation. That’s the reason why Islamic law do not prefer imprisonment of criminals.

Another object of punishment in Islamic law is Qisas (retribution). When a person causes injury
to another person, the other has a right of equal requital. This right solely belongs to the party
being injured. There are two conditions for retribution under Islamic law. One condition is that the
victim seeks punishment for the wrongdoer. The other is that the victim demand compensation for

Page | 2
the loss or he may even forgive the offender, however, if he seeks compensation it must not be
more than the loss incurred. It means that the object of Qisas is not vengeance but reconciliation
and thus punishment can be avoided under Qisas.

3. PUNISHMENT IN WESTERN LEGAL SYSTEM

Punishment, according to the dictionary, involves the infliction of pain or forfeiture, it is the
infliction of a penalty, chastisement or castigation by the judicial arm of the State. But if the sole
purpose of punishment is to cause physical pain to the wrong-doer, it serves little purpose.
However, if punishment is such as makes the offender realize the gravity of the offence committed
by him, and to repent and atone for it (thus neutralizing the effect of his wrongful act), it may be
said to have achieved its desired effect. A person is said to be "punished" when some pain or
detriment is inflicted on him. This may range from the death penalty to a token fine. Thus,
punishment involves the infliction of pain or forfeiture; it is a judicial visitation with a penalty,
chastisement or castigation. In this book entitled "Criminal Behaviour", Walier Reckless describes
punishment as "the redress that the commonwealth takes against an offending member." In the
words of Westermarck, punishment is "Such suffering as is inflicted upon the offender in a definite
way by, or in the name of the society of which he is permanent or temporary member."

3.1 THE DETERRENT THEORY OF PUNISHMENT

Punishment is primarily deterrent when its object is to show the futility of crime, and thereby teach
a lesson to others. Deterrence acts on the motives of the offenders, whether actual or potential.
Offences are committed, in most cases, as a result of a conflict between the so-called interests of
the wrong-doer and those of society at large. The object of punishment, according to this theory,
is to show that, in the final analysis, crime is never profitable to the offender, and as Locke
observed, to make crime "an ill-bargain to the offender." By making it an ill-bargain to the
offender, the world at large would learn that crime is a costly way of achieving an end. The idea
behind deterrent punishment is that of preventing crime, by the infliction of an exemplary sentence
on the offender. By this, the State seeks to create fear in its members, and thus deter them from
committing crime through fear psychology. The rigour of penal discipline is made a terror and a
warning to the offender and others. According to the exponents of this theory, punishment is meant
to prevent the person concerned and other persons from committing, similar offences. The

Page | 3
advocates for the retention of capital punishment rely on this theory in support of their contention.
They argue that capital punishment, by its very nature, cannot have either a reformative value or
be a retributive necessity. Its only value, if at all, is by way of deterrence. However, the theory of
deterrent punishment fails to achieve its goal. A hardened criminal becomes accustomed to the
severity of the punishment, and deterrence does not always prevent him from committing a crime.
On the other hand, it also fails to affect an ordinary criminal, as very often, a crime is committed
in a moment of excitement. If the crime is pre-mediated, the offender commits the crime, knowing
fully well, the consequences arising from his act and performs the act because he cannot help but
do it. In a case decided by the Supreme Court, Phul Singh v State of Haryana,1 a young philanderer
aged 22, overpowered by excess sex stress, raped a twenty-four year old girl next door in broad
day-light. The Sessions Court convicted him to four years' rigorous imprisonment, and the High
Court confirmed the sentence in appeal. When the matter went in appeal to the Supreme Court, the
sentence was reduced to two years' rigorous imprisonment, as the accused was not an habitual
offender, and had no vicious antecedents. The Supreme Court observed: "The incriminating
company of lifers and others for long may be counter-productive, and in this perspective, we blend
deterrence with correction, and reduce the sentence to rigorous imprisonment for two years,"

3.2 THE PREVENTIVE THEORY OF PUNISHMENT

If the deterrent theory tries to put an end to the crime by causing fear of the punishment in the
mind of the possible crime-doer, the preventive theory aims at preventing crime by disabling the
criminal, for example, by inflicting the death penalty on the criminal, or by confining him in prison,
or by suspending his driving license, as the case may be. Thus, the extreme penalty, the death
sentence, ensures that, once and for all, the offender will be prevented from repeating the heinous
act. In the past, maiming was considered an effective method of preventing the wrong-doer from
committing the same crime in the future, by dismembering the offending part of the body. Thus, a
thief's hand would be cut off, or a sexual off. In the ultimate analysis, the preventive mode of
punishment works in three ways, viz
a) by inspiring all prospective wrong-doers with the fear of punishment;
b) by disabling the wrong-doer from immediately committing any crime; and

1
MANU/SC/0203/1979.

Page | 4
c) by transforming the offender, by a process of reformation and reductions that he would not
commit crime again.

3.3 THE RETRIBUTIVE THEORY OF PUNISHMENT

While discussing the history of the administration of justice, it was seen that punishment by the
State is a substitute for private vengeance. In all healthy communities, any crime or injustice stirs
up the retributive indignation of the people at large. Retribution basically means that the wrongdoer
pays for his wrongdoing, since a person who is wronged would like to avenge himself, the State
considers it necessary to inflict some pain or injury on the wrongdoer in order to otherwise prevent
private vengeance. Whereas other theories regard punishment as a means to some other end the
retributive theory looks on it as an end in itself. It regards it as perfectly legitimate that evil should
be returned for evil, and that a man should be dealt with the manner in which he deals with others.
An eye for an eye and a tooth for a tooth is deemed to be the rule of natural justice. Though the
system of private revenge has been suppressed, the instincts and emotions that lay at the root of
these feelings are yet present in human nature. Therefore, according to this theory, the moral
satisfaction that society obtain from punishment cannot be ignored. On the other hand, if the
criminal is treated very leniently, or even in the midst of luxury, as the reformative theory would
have it. (and as actually happens in some prisons of the world, which are equipped with air
conditioning, private toilets, TV sets etc.), the spirit of vengeance would not be satisfied, and it
might find its way through private vengeance. Therefore, punishment, instead of preventing a
crime, might indirectly promote it. Unfortunately, the retributive theory ignores the causes of the
crime, and it does not strike at the removal of the causes. A mere moral indignation can hardly
prevent crime. It is quite possible that the criminal is as much a victim of circumstances as the
victim himself might have been. It is also unfortunate that this theory overlooks the fact that two
wrongs do not really make a right. The theory also seems to ignore that if vengeance is the spirit
of punishment, violence will be a way of prison life.

4. CONTRADICTION BETWEEN ISLAMIC LEGAL SYSTEM AND WESTERN LEGAL SYSTEM

The Islamic legal system as compare to the western legal system provides a peaceful and cleaner
society. Western laws where the ethical norms of the society are always violated for example in
Norway and Sweden homosexuality and lesbianism is not a crime. Similarly, Spain has passed a

Page | 5
bill for legalising adultery. Adultery will not be considered as crime. In contrast to the immoral
and un-ethical laws of west, Islam provides a system based on natural and divine law where the
norms and ethical values are highly respected. The deterrent punishment of Islamic law ensures
greater peace in society. This is because of the Shariah laws applied in Saudi Arabia that the crime
rate is negligible i.e. one murder in one year. One can find unique characteristic of Islamic law that
shows a remarkable difference from the western law. These unique salient features of Shariah law
shows the significance of Islamic law over the western legal system. One of the unique features of
Shariah law is that there is no rule for imprisoning the offender. The imprisonment is a disapproved
kind punishment in Islamic legal system. There are several reasons for avoiding imprisonment of
the offender. The main objective for awarding imprisonment is the reformation of the offender but
the results produced by imprisoning the wrongdoer is contrary to what the law seeks to achieve
through imprisonment. The reason is that society is the best place for reformation of criminals as
compare to the prisons which is a community of criminals. The criminals in prison do not feel
shame on their crimes instead they feel proud to boost their stories of crimes in front of other
offenders. Moreover, offenders become more skilful in committing crime after release.

Another contradiction between Islamic legal system and western legal system is treatment with the
ex-convict. The treatment with the ex-convict plays a vital role in the reformation of the offender.
However, the West’s contemptuous treatment with the ex-convict prohibits him from
rehabilitation. In most of the western legal systems an ex-convict is deprived of contesting
elections. Moreover, even the ex-convicts are deprived of casting votes. Contrary to this, Islamic
legal system highly disapproves such kind of treatment with the ex-convict. The conviction of the
offender should not become a permanent stigma on his character. Once the offender is punished
for his crime he becomes innocent. He must be treated like he never committed that crime. The
conviction should not become an obstacle in his social and economic progress. This kind of
treatment with ex-convict plays a greater in the reformation of the offender. The Prophet (PBUH)
has forbidden his companions from calling bad names to two Sahabis, who have confessed the sin
of adultery and were stoned to death. Similarly Islam provides a system of equality. Discrimination
between rich and poor in awarding punishment is prohibited. In order to avoid the discrimination
Islam provide a legal system which is lacking of imposing any monetary fine or penalty. Such
equality before law has the same deterrent effect on both the rich and the poor. On contrary to the

Page | 6
western legal system where the offenders are usually fined, wealth has become the license for the
rich people to commit crimes. The pecuniary punishments have promoted the criminal mentality
of the rich class of the society. Islamic legal system has the provision of monitory fine only in case
of Diyyat, however, the amount of diyyat is fixed and it can only be imposed if the aggrieved party
wishes to do so. The law, otherwise, cannot convert the punishment of Qisas into Diyyat. Another
significant feature of Islamic legal system is the reporting of crime. No one can be punished mere
on the suspicion that he has committed the crime until it is proved by the prescribed number of
reliable witnesses. The strict procedure to be observed for the reporting of crime preserves the
integrity of mankind. Strict punishments should be awarded to those who bring allegation against
someone and then fails to prove those allegations. The western legal system, on contrary, does not
have such provisions. In western legal system any person can report a crime against a noble and
innocent man without having any proof. The person after a long process of humiliation may be
proved innocent. Islam prohibits such kind of system where every member of the society lives like
suspects. He can be charged any time for a crime mere on suspicion.

5. CONCLUSION
Different philosophers and criminologist studied the criminal behaviour of the criminals. They
summed up their work and produced different theories about the causes and prevention of crime.
The first theory, in this respect, known as classical theory of criminality was developed by an
Italian and Englishman named Cesare Beccaria and Jeremy Bentham respectively in late eighteen
century. The underlying principle of their theory is that man is having free will. Human beings are
hedonistic and they try to maximise their pleasure and minimize their pain. According to this
theory the behaviour of human can only be controlled by fear of pain and thus deterrence is the
only effective measure for the prevention of crime.

Similarly positivistic school of criminologist argues that human beings do not have their free will.
Their behaviour is affected by various biological, sociological and psychological factors. Humans
are not responsible for their actions. According to this school of criminology the instrument for
the prevention of crime should be the rehabilitation efforts for the reformation of offenders. All
the legal systems in the world support any one of the above theories for justification of awarding

Page | 7
punishment. The Western legal system follows the positivistic school of criminology. However,
the rehabilitation efforts (like imprisonment) is highly criticised due to their contrasting outcomes.

The Islamic legal system on the other hand has lessons for criminologist of both classical and
positivistic schools of criminology. Both deterrent and reformatory punishments are awarded by
the Islamic law. Moreover, many Islamic punishments have dual effects of rehabilitation and
deterrence at the same time. For example, imputation of hand in cases of theft has the deterrent
effect on all those who are like minded to the criminal, and it also helps in the rehabilitation of
convict as Islam allows such convicts to live his life in the society with all the privileges like others
and forbids any discriminatory treatment to him because of his ex–convictions. Islamic law is the
perfect law for the prevention of crime. Shariah laws are divine laws. The principles of Shariah
laws are established by God the Almighty Who is fully aware of the human nature, their
psychologies etc. Thus, Islamic laws act as guidelines for the criminologists to study and develop
their knowledge of the subject.

Page | 8
6. BIBLIOGRAPHY

BOOK REFERRED
1. Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, 7th edn.

WEBSITES
1. https://advance.lexis.com/inresearchhome/?pdmfid=1523890&crid=1ebb2f56-75cd-40f9-a2f3-
6a85215a3a19&ecomp=qdwhk&prid=9b344776-d1b4-4455-9722-29520884d9a9
2. http://www.legalserviceindia.com/articles/pun_theo.htm

3. https://www.manupatrafast.com/pers/Personalized.aspx

4. https://shodhganga.inflibnet.ac.in/bitstream/10603/45012/9/09_chapter%204.pdf

Page | 9