Theories of Punishment in West

The document discusses different theories of punishment in Western societies and Islamic perspectives. It outlines two main theories of punishment in the West - retributive and restorative justice. Retributive justice focuses on proportional punishment based on the severity of the crime to uphold abstract legal principles. Restorative justice aims to repair the harm done to victims and communities, encourage offender responsibility, and prevent future offenses through victim-offender mediation and compensation. The document sets up an explanation of punishment in Islamic law compared to Western approaches.

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Theories of Punishment in West

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nauman tariq

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Introduction

The Maker of a thing is in the best position to know, and to let others know about his creation. He is the
one who knows best about the correct and misuse of the created thing. The manufacturing companies
provide the user with a ‘manual’ to guide the users about the item; to let them know how they can
correctly use the item, how can they take maximum output without damaging the product, what about
the safeguards which are necessary for the product, how to perform the maintenance, and so on. Allah,
the All-Mighty; the ultimate Creator of each and every thing in the entire universe sent His Books and
Prophets as ‘manual’ and ‘instructor’ respectively, for the welfare of whole humanity. All-Mighty Allah
sent His last ‘manual’ in the form of the Holy Qur’ân and last ‘instructor’ as Prophet Muhammad – upon
whom Blessings and Salutations of All-Mighty Allah are – to the whole of humanity. Shari`ah (Islamic
Law) is the code of conduct followed by Muslims and has its basis in two main sources: the Qur’ân and
the Sunnah of the Prophet. The Sharia differs from Western systems of law on the basis of its scope and
its conception of the law, as it is a complete code of life; it guides every aspect of the human life,
whether worships, marriage, divorce, economics, civil law, criminal law, international law, human rights,
minority rights, etc. It seeks to foster success and welfare of humanity both in this life and in the
afterlife. The Shari`ah prescribes a complete code of laws to guide mankind towards establishing ‘Good’
(Ma`roof) and removing ‘Evil’ (Munkar) from society.

The scope of the Shariàh is much wider, because it regulates an individual’s relationship not only with
one’s neighbours and the state but also with God and one’s conscience. As opposed to the other
systems of law, the Shariàh operates within the internal and external domains of an individual external
social relations).As opposed to secular legal systems, which grew out of society and changed with the
changing circumstances of society, Shariàh law was imposed upon society from All-Mighty Allah. Under
Muslim law, it is not the society that molds and fashions the law, but rather the law that precedes and
controls the society.

Theories of Punishment in West

First of all, let us have a look at the various theories of punishments prevailing in the western society. It
would help us latter understand the Islamic perspective.

1. Retributive

In ethics and law, the aphorism “Let the punishment fit the crime” is a principle that means that the
severity of penalty for a misdeed or wrongdoing should be reasonable and proportionate to the severity
of the transgression. The concept is common to most cultures throughout the world and is evident in
many ancient texts.Retributive punishment is a theory of justice, according to whichpunishment, if
appropriate, is to be the best response to crime. When an offender breaks the law, justice requires that
they forfeit something in return.

“Proportionality” requires that the level of punishment be scaled relative to the severity of the
transgressing behaviour. However, this does not mean that the punishment has to be equivalent to the
crime. A retributive system must punish severe crime more harshly than minor crime.
In the 19th century, philosopher Immanuel Kant argued in Metaphysics of Morals:

“The only legitimate form of punishment the court can prescribe must be based on retribution and no
other principle”

2. Restitutionary/Restorative/Substitutary

Restitutionary justice considers crime and wrongdoing to be an offence against an individual and
community, rather than the state. Instead of satisfying abstract legal principles or punishing the
offender, Restorative justice is an approach to justice that focuses on the needs of the victims and the
offenders, as well as the involved community. Victims take an active role in the process, while offenders
are encouraged to take responsibility for their actions, to repair the harm they have done — by
apologizing, returning stolen money, or community service. In addition, it provides help for the offender
in order to avoid future offences. Victims can testify about the crime’s impact upon their lives, receive
answers to questions about the incident, and participate in holding the offender accountable. Offenders
can tell their story of why the crime occurred and how it has affected their lives. They are given an
opportunity to compensate the victim directly — to the degree possibleIn criminal cases, this can
include money, community service in general and/or specific to the offense, education to prevent
recidivism, and/or expression of remorse