Punishments Prescribed under the Shar'iah (Islamic Law), The

 

A word of advice ...

This article is not intended for the layperson and should be used only in conjunction with a detailed study of the topic of punishments under Shari'ah noting, in particular, the conditions required for one to be punished. Additionally, in common with almost all areas of Islamic jurisprudence, this is a topic of legitimate Islamic differing, opinion and evolution.

Apostasy

This consists of abjuring Islam by intention or words or acts or rejection, whether the words were said in jest, or contradiction, or belief. They consist of a declaration:

1. That the Creator or Messengers do not exist;
2. That one of the Prophets was a liar;
3. That one considers lawful what the 'joining together' has considered unlawful - as for instance fornication;
4. That one considers unlawful what the joining together makes lawful;
5. That one does not have to follow what has been decided by joining together; or
6. That one intends to reject Islam, or doubts it.

An act making one an apostate is one based on an obvious mockery or denial, such as throwing a copy of the Qur'an on a muck heap, or prostration to an idol or the sun.

An effort should be made to convince an apostate to return from error, though one authority says that it is only desirable, either once or for three days. Then he is put to death. Where the guilty repents, his submission is accepted and he is let alone, unless (according to some), he has turned to an esoteric infidelity such as zandaqa (i.e. Manichaeism) in which one can profess Islam outwardly but deny it inwardly.

The infant of two apostates (not one only) should be considered an apostate, according to the best opinion.

As to his property, the best opinion is that if he dies as apostate, he has lost it, but if he submits, he regains it. Debts contracted beforehand are however charged to his estate.

Fornication

This consists of introducing the male organ into the vagina of a forbidden woman, without any ambiguity or doubt, or into the anus of a man or woman as well, according to our (Shafi'i) school, and it receives a prescribed penalty (hadd), regardless of whether it was done for payment or by consent, and is applied as well for (relations with) a woman within the forbidden degrees of kinship or marriage (e.g. sister of a living wife) even if a marriage was performed. The guilty person must be adult, sane, and aware that it is wrong. Drunkenness is no excuse.

1. The hadd of an adult free Muslim or member of a protected community, who has consummated a legal marriage before this, is stoning to death. If one of the two partners has not, it does not lessen the guilt of the other;
2. The hadd of a fornicator who is not adult and free or was never married is one hundred lashes and banishment for a year, and if the Imam designates a place of banishment, that must be accepted; and
3. For a slave the hadd is fifty lashes and banishment for half a year.

Defamation

For a false accuser to receive the hadd, he must be a sane adult Muslim, drunk or sober, who acted freely. A child of a reasonable age is punished at the discretion of the court. The penalty for a free person is eight lashes, and for a slave forty. If two people accuse each other, the two punishments do not cancel each other.

Crimes Punishable by Amputation

For theft the amount necessitating punishment by amputation is of a value equal to the quarter of a (gold) dinar. Two persons stealing together must have stolen twice the minimum amount. There is no amputation if such as wine, or a pig or dog, or the skin of an animal that is not ritually slaughtered. But if the container of the wine was worth the minimum amount, amputation follows.

Theft by a minor, insane person, or one forced against his will is not punished by cutting off the hand but cutting may be performed on members of a protected community, subject to our laws.

The right hand is cut off for the first offense (even if more than one theft was involved), the left foot for the second, the left hand for the third and the right foot for the fourth.

Brigands (Highwaymen and Bandits)

Those who do not rob or murder travellers may be given a lesser punishment. One guilty of theft if the legal amount has his right hand and left foot cut off. Murder by a brigand makes his death mandatory. He is then hung on a cross for three days and taken down. Some say the body should hang until ichor runs from it, and others that he should be crucified for a time and then taken down and killed.

Forbidden Beverages

Every drink that inebriates in a large quantity is forbidden in a small quantity. The hadd for drinking it is not given to a child, an insane person or a non Muslim subject. One may take wine in immediate necessity, according to our school, e.g. to dislodge food in the throat which is choking one, if nothing else is available, but one is liable to punishment if he uses wine for medicine or for thirst. The hadd of a free person is thirty blows, and that of a slave is twenty, by whip, hand, sandal or a rolled up garment. It is said that it should be with a whip. The Imam may double the number if he sees fit.

Sins not punishable by a prescribed penalty or expiation may be punished by imprisonment, beating, slapping or threatening. The nature of this is at the discretion of the Imam or his deputy.