Crimes in Islam

Crimes under Islamic Law can be broken down into three major categories. Each
will be discussed in greater detail with some common law analogies. The three
major crime categories in Islamic Law are:

1. Had Crimes (most serious).

2. Tazir Crimes (least serious).
3. Qisas Crimes (revenge crimes restitution).

Had crimes are the most serious under Islamic Law, and Tazir crimes are the
least serious. Some Western writers use the felony analogy for Had crimes and
misdemeanor label for Tazir crimes. The analogy is partially accurate, but not
entirely true. Common Law has no comparable form of Qesas crimes.

Fairchild, in her excellent book on comparative justice, makes the following

observation of Islamic Law and punishment (Fairchild, p.41).

Punishments are prescribed in the Quran and are often harsh with the emphasis
on corporal and capital punishment. Theft is punished by imprisonment or
amputation of hands or feet, depending on the number of times it is committed...

Had Crimes

Had crimes are those which are punishable by a pre-established punishment

found in the Quran. These most serious of all crimes are found by an exact
reference in the Quran to a specific act and a specific punishment for that act.
There is no plea-bargaining or reducing the punishment for a Had crime. Had
crimes have no minimum or maximum punishments attached to them. The
punishment system is comparable to the determinate sentence imposed by some
judges in the United States. If you commit a crime, you know what your
punishment will be. There is no flexibility in the U.S. determinate model or in the
punishment for Had crimes of Islamic Law.

No judge can change or reduce the punishment for these serous crimes. The
Had crimes are:

1. Murder;
2. Apostasy from Islam

1. (making war upon Allah and his messengers);

1. Theft;
2. Adultery;
3. Defamation
2. (false accusation of adultery or fornication);
1. Robbery;

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 2. Alcohol-drinking.

The first four Had crimes have a specific punishment in the Quran. The last three
crimes are mentioned but no specific punishment is found (Schmalleger,p.603).

Some more liberal Islamic judges do not consider apostasy from Islam or wine
drinking as Had crimes. The more liberal Islamic nations treat these crimes as
Tazir or a lesser crime.

Had crimes have fixed punishments because they are set by God and are found
in the Quran. Had crimes are crimes against God's law and Tazir crimes are
crimes against society. There are some safeguards for Had crimes that many in
the media fail to mention. Some in the media only mention that if you steal, your
hand is cut off. The Islamic judge must look at a higher level of proof and reasons
why the person committed the crime. A judge can only impose the Had
punishment when a person confesses to the crime or there are enough
witnesses to the crime. The usual number of witnesses is two, but in the case of
adultery four witnesses are required. The media often leaves the public with the
impression that all are punished with flimsy evidence or limited proof. Islamic law
has a very high level of proof for the most serious crimes and punishments.
When there is doubt about the guilt of a Had crime, the judge must treat the
crime as a lesser Tazir crime. If there is no confession to a crime or not enough
witnesses to the crime, Islamic law requires the Had crime to be punished as a
Tazir crime.

Tazir Crimes

Modern Islamic Society has changed greatly from the time of the Prophet.
Contemporary Sharia Law is now in written form and is statutory in nature.
Islamic concepts of justice argue that a person should know what the crime is
and its possible punishment. For example, Egypt has a parliamentary process
which has a formal penal code written and based upon the principles of Islamic
Law, but Saudi Arabia allows the judge to set the Tazir crimes and punishments.
Modern Islamic Law recognizes many differences between these two nations. It
also allows for much greater flexibility in how it punishes an offender. The major
myth of many people is that judges in Islamic nations have fixed punishments for
all crimes. In reality the judges have much greater flexibility than judges under
common law.

Tazir crimes are less serious than the Had crimes found in the Quran. Some
common law writers use the analogy of misdemeanors, which is the lesser of the
two categories (felony and misdemeanor) of common law crimes. Tazir crimes
can and do have comparable "minor felony equivalents." These "minor felonies"
are not found in the Quran so the Islamic judges are free to punish the offender
in almost any fashion. Mohammed Salam Madkoar, who was the head of Islamic

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Law at the University of Cairo, makes the following observation (Ministry of the
Interior, 1976,p.104):

Tazir punishments vary according to the circumstances. They change from time
to time and from place to place. They vary according to the gravity of the crime
and the extent of the criminal disposition of the criminal himself.

Tazir crimes are acts which are punished because the offender disobeys God's
law and word. Tazir crimes can be punished if they harm the societal interest.
Sharia Law places an emphasis on the societal or public interest. The
assumption of the punishment is that a greater "evil " will be prevented in the
future if you punish this offender now.

Historically Tazir crimes were not written down or codified. This gave each ruler
great flexibility in what punishments the judge was able to dispense. The judge
under Islamic Law is not bound by precedents, rules, or prior decisions as in
common law. Judges are totally free to choose from any number of punishments
that they think will help an individual offender. The only guiding principle for
judges under Sharia Law is that they must answer to Allah and to the greater
community of Muslims. Some of the more common punishment for Tazir crimes
are counseling, fines, public or private censure, family and clan pressure and
support, seizure of property, confinement in the home or place of detention, and
flogging.

In some Islamic nations, Tazir crimes are set by legislative parliament. Each
nation is free to establish its own criminal code and there is a great disparity in
punishment of some of these crimes. Some of the more common Tazir crimes
are: bribery, selling tainted or defective products, treason, usury, and selling
obscene pictures. The consumption of alcohol in Egypt is punished much
differently than in Iran or Saudi Arabia because they have far different civil laws.
Islamic law has much greater flexibility than the Western media portrays. Each
judge is free to punish based upon local norms, customs, and informal rules.
Each judge is free to fix the punishment that will deter others from crime and will
help to rehabilitate an offender.

Qesas Crimes and Diya

Islamic Law has an additional category of crimes that common law nations do not
have. A Qesas crime is one of retaliation. If you commit a Qesas crime, the victim
has a right to seek retribution and retaliation. The exact punishment for each
Qesas crime is set forth in the Quran. If you are killed, then your family has a
right to seek Qesas punishment from the murderer. Punishment can come in
several forms and also may include "Diya." Diya is paid to the victim's family as
part of punishment. Diya is an ancient form of restitution for the victim or his
family. The family also may seek to have a public execution of the offender or the
family may seek to pardon the offender. Traditional Qesas crimes include:

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 1. Murder (premeditated and non-premeditated).
2. Premeditated offenses against human life, short of murder.
3. Murder by error.
4. Offenses by error against humanity, short of murder.

Some reporters in the mass media have criticized the thought of "blood money"
as barbaric. They labeled the practice as undemocratic and inhumane. Qesas
crimes are based upon the criminological assumption of retribution. The concept
of retribution was found in the first statutory "Code of Hammurabi" and in the Law
of Moses in the form of "an eye for an eye." Muslims add to that saying "but it is
better to forgive." Contemporary common law today still is filled with the
assumptions of retribution. The United States federal code contains "mandatory
minimum" sentences for drug dealing, and many states have fixed punishment
for drugs and violence and using weapons. The United States justice system has
adopted a retribution model which sets fixed punishments for each crime. The
idea of retribution is fixed in the U.S. system of justice. Qesas crime is simple
retribution: if one commits a crime he knows what the punishment will be.

Diya has its roots in Islamic Law and dates to the time of the Prophet Mohammed
when there were many local families, tribes and clans. They were nomadic and
traveled extensively. The Prophet was able to convince several tribes to take a
monetary payment for damage to the clan or tribe. This practice grew and now is
an acceptable solution to some Qesas crimes.

Today, the Diya is paid by the offender to the victim if he is alive. If the victim is
dead, the money is paid to the victim's family or to the victim's tribe or clan. The
assumption is that victims will be compensated for their loss. Under common law,
the victim or family must sue the offender in a civil tort action for damages.
Qesas law combines the process of criminal and civil hearings into one, just as
the "civil law" is applied in many nations of the world. Qesas crimes are
compensated as restitution under common law and civil law.

The Qesas crimes require compensation for each crime committed. Each nation
sets the damage before the offense and the judge then fixes the proper Diya. If
an offender is too poor to pay the diya, the family of the offender is called upon
first to make good the diya for their kin. If the family is unable to pay, the
community, clan or tribe may be required to pay. This concept is not found in
common law or the civil law of most nations. It acts as a great incentive for family
and community to teach responsible behavior. What happens to the debt if the
offender dies and has not paid it? Historically, it was passed on to the offender's
heirs; today, most nations terminate the debt if the offender left no inheritance.

One question that is often raised is "What happens if a victim takes the diya
without government approval ?" The victim or family has committed a Tazir crime
by accepting money which was not mandated by a judge: taking diya must be
carried out through proper governmental and judicial authority.

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Another concept of Qesas crimes is the area of punishment. Each victim has the
right to ask for retaliation and, historically, the person's family would carry out that
punishment. Modern Islamic law now requires the government to carry out the
Qesas punishment. Historically, some grieving family member may have tortured
the offender in the process of punishment. Now the government is the
independent party that administers the punishment, because torture and
extended pain is contrary to Islamic teachings and Sharia Law.

Conclusions

Contemporary treatment of Islamic Law and "Radical Muslims" is filled with

stereotypical characterizations. Some in the Western media have used the "New
York City bombings" as a way to increase hate and prejudice. They have taken
the views of a few radicals and projected them onto all Muslims. This action has
done a great disservice to the Muslim world. Some academic writings also have
been distorted and not always completely accurate and some researchers have
concluded that Islamic Law requires a fixed punishment for all crimes. These
writers also have concluded that Islamic judges lack discretion in their sentences
of defendants in the Sharia Court System. There are four Had crimes that do
have fixed punishments set forth in the Quran, but not all the Had crimes are
bound by mandatory punishment.

Islamic Law is very different from English Common Law or the European Civil
Law traditions. Muslims are bound to the teachings of the Prophet Mohammed
whose translation of Allah or God's will is found in the Quran. Muslims are held
accountable to the Sharia Law, but non-Muslims are not bound by the same
standard (apostasy from Allah). Muslims and non-Muslims are both required to
live by laws enacted by the various forms of government such as tax laws, traffic
laws, white collar crimes of business, and theft. These and many other crimes
similar to Common Law crimes are tried in modern "Mazalim Courts." The
Mazalim Courts can also hear civil law, family law and all other cases. Islamic
Law does have separate courts for Muslims for "religious crimes" and
contemporary non-religious courts for other criminal and civil matters.

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 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 God 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 God 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.
God says:
“We have sent our Messengers with clear signs and have sent
down with them the book and the criterion so that man can

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 establish justice. And we sent down iron of great strength and
many benefits for man...” (Quran 57:25)
And He says:
“…God wants ease for you, not hardship...” (Quran 2:185)
And He says:
“God wants to make things clear for you and to guide you to
the ways of those before you and to forgive you. God is the All
knowing, the Wise. God wants to forgive you and wants those
who follow their desires to turn wholeheartedly towards (what
is right). God wants to lighten your burdens, and He has
created man weak.” (Quran 4:26-28)
And He says:
“God 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).

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4. Transgression against reason (using intoxicants).
5. Transgression against religion (apostasy).
6. Transgression against all of these universal needs (highway robbery).

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 God, 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

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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

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

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2. Highway 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.
God 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 God 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 God be upon him. This problem

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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.

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. God 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. God says:
“If anyone waives the right to retaliation out of charity, it
shall be an expiation for him.” (Quran 5:45)

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 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. God
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 God 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.

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 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.

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