Punishment — The Only Cure Within A Society?
English philosopher William Penn once said, “People are more afraid of the laws of Man than of God, because their punishment seems to be nearest.”
Clearly, one of the first objectives of punishment in Islam is to award penalty for the crime committed. When crime is committed, it is a violation of a divine commandment which requires the imposition of punishment/penalty. The second objective is that the accused is to be dealt with the same way as the victim in order to avoid the occurrence of crimes. The third objective of a punishment in Islam is its deterrent capacity. It has been recommended in the shariah that the punishments should be executed publicly because public display of the imposition of sentence poses as having a deterrent effect.
Therefore, the purpose of awarding severe punishment is to put fear of prosecution into the public as a deterrent measure. This deterrent and an exemplary aspect of Islamic punishment has a psychological effect on all those who may have criminal inclination and tendencies. For example, this the sole purpose of gathering the people on the occasion of punishing an adulterer. The same purpose is obtained by imposing different punishments such hanging, chopping hands or stoning in broad day light.
The principals of blood money and monetary compensation illustrate the idea of restitution. Most of the punishments in Islam aim at the reformation of the offenders and if this reformative object is gained before the cognizance of the criminal in the form of his repentance then in some cases remission is also awarded. The most significant role of Islamic punishment along with other characteristics and objects is protective and preservative in nature. Thus 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. In order to understand the protective philosophy of Islamic punishments, we can classify human values into two levels:
- Individual level
- Social level
Man is to be guided by intelligence, consciousness, conscience and will rather than animal instincts. Therefore, in so far as he does not use his intellect and remains subconscious, he is prone to make mistakes and reduce to a low state. The laws are related with the establishment of an economic, social, educational and spiritual system in which the stimulus to evils is reduced and the development of good elements is accelerated. There are instructions regarding the environment, treatment of animals, usage and wastage of resources, usury and so on. It is necessary to impose punishment on the offender to keep the society a good place to live in. A good conduit entails respect for life, respect for property and respect for relationship. It has been said in the Dharmapada that all tremble punishment; all fear death, and all living beings love life. Respect for property and no stealing or cheating is important because those who take, what is not given, by stealing or by treachery, are as guilty of breaking these precepts as those who steal by force. There is a moral necessity to punish these offences, otherwise the society will be disturbed. The employer who does not pay an employee an honest salary that is commensurate with his work is guilty of taking what must be given.
Finally, respecting a familial relationship entails avoiding adultery and avoiding sexual misconduct. However, if the aforementioned guidelines are followed and injected into a society, such a society will be a better place. One should aim to not to earn a living in such a way so as to violate these principles, which are underlying principles of good conduct. There are five kinds of livelihood that are discouraged: trading in animals for slaughter, dealing in slaves, weapons, poisons and intoxicants, drugs and alcoholic drinks. These five kinds of vocation are discouraged as these are a stimulant to the ill of society and encourage lack of respect.
The urgency of the notion of punishment in the Islamic law theory is due to the fact that punishment remains the most effective criminal means to counteract crime. In accordance with the rules of Islamic law, punishment is intended to protect five core values: religion, life, intellect, property and posterity, which are also are the main objects protected by Islamic law.
Flugel explains that punishment is the ally of a law-abiding individual who makes efforts to keep his own anti-social desires under control. He says, “the criminal by his flouting of law and moral rule, constitutes a temptation … to our own unconscious and primitive wishes…”
The role of punishment is to substantiate the reality and actual force of moral command. This reassertion of the moral order is the primary function of punishment, both in the classroom and in the courts. He desires punishers to be conscious of a punishment’s real moral function and to make the forces their endeavor. The point is not to make the guilty expiate their crime through suffering but to bolster those consciences which violate any rule.
Every person who is the victim of a crime, naturally develops some sense of revenge and demands compensation in one way or the other. According to this view, the criminal is legally and morally bound to compensate for the loss caused by him upon his victim. Thus, punishment is the necessary mode of compensation for the criminal infringement of the rights of people. In primitive periods, the victim himself exacted compensation or revenge, but with time crimes have become a matter of public importance thus the role of the state in regulating such crimes has also increased.
Flugel further argues that penalizing the offenders will annul crime, but a literal interpretation is not convenient. Fean Hampton suggests that punishment may be understood to annul crime in the sense that a wrong statement can be made that the offender is superior to the victim, and the punishment could reassert their equality and could nullify the evidence from the offender’s end.
Flugel is clearly correct in saying that crime is crime only because of the offender’s intent. But in what sense does ‘penalizing his will‘ (presumably by doing something to him that he does not want done) serve to annul that intent? More importantly, Flugel does not mean here that the offender must be reformed or made into a person who will not commit crime in the future, nor does he mean that others are frightened to commit a similar crime.
The crime is to be annulled, not because it does harm or may be repeated, but because it is wrong. Right, according to Flugel, can only be understood by reference to coercion and to remedy wrongdoings. Accidental wrongs can be cured by the payment of damages, but a deliberately willed wrong of a crime must be annulled through the use of coercion.
In modern conditions, the functions of punishment are to restore social justice and the disturbed public order, smooth down the harm done to a victim, meet the needs of the society, punish the culprit and strengthen people’s faith in the ability of the state to fight crimes and reliably protect the legitimate rights and interests of the individuals and the society.
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.
