Crimes (jinayat) in Islamic penal law can be defined in general as actions forbidden by religious law and discouraged by Allah Almighty with mandatory or discretionary penalties. Prohibited behavior includes the commission of a forbidden act or the omission of the performance of a duty. Every act of disobedience to Allah (ma'siya), whether a commission or an omission, is considered an offence. In juristic parlance, the term jinaya is usually applied to injuries inflicted with aggression on a human body, ranging from assault and battery to grievous bodily harm and death, and giving rise to the culprit's liability to retribution or the payment of compensation.[1] The penalties imposed in Islamic penal law are divided into two groups: prescribed penalties, which include had and qisas, and the unspecified penalty, which is known as tazir.

Qisas

The term qisas is derived from the Arabic root qassa, meaning 'he cut', and qassa atharahu 'he followed someone's tracks'.[2] Legally, qisas is used to mean the law of equality or equitable reprisal for a murder.[3] Equality in reprisal is prescribed with a strict sense of justice. Qisas covers homicide, quasi-intentional murder, manslaughter, and intentional or unintentional injuries.[4] The ruler or court cannot pardon crimes incurring the qisas penalty. However, if the nearest relative grants a pardon, the judge may, at his discretion, impose a tazir penalty on the criminal. This arrangement is not applicable to had offences.[5]

Hudud

The linguistic meaning of hadd (pl. hudud) is frontier, prevention or limit.[6]Legally, it refers to the types of penalties divinely prescribed by Allah in the Quran and Sunna. The criterion of a hadd is that the rights of Allah take precedence. It means that these penalties are unchangeable, that is, they cannot be reduced or increased, nor is there a range of penalties from which to choose. Finally, there is no possibility of a pardon or intercession by the Judge, political authority or the victim of the offence.[7] There has been disagreement among the jurists of different schools of Islamic law over what constitutes a hadd. According to the majority, there are seven hadd crimes: theft, highway robbery, adultery, defamation (that is, false accusation of adultery), consumption of intoxicants, apostasy, and armed rebellion. However, the Hanafites[8] exclude armed rebellion, apostasy (ridda) and consumption of intoxicants from the hudud and treat them as tazir instead, since neither the Quran nor the Sunna prescribed specific penalties for them.[9]

Tazir

The term tazir is derived from the root verb 'azzara, which means to censure, reprimand, prevent, respect and reform.[10] In Islamic penal law, tazir is defined as the discretionary penalty to be imposed for the infringement of the rights of Allah and those of the individual as edification and a deterrent, where there is neither a fixed penalty nor kaffara (expiation of sins).[11]It is the flexibility of tazir which distinguishes it from hadd and qisas. The ruler or his/her authorized deputies are given the right to determine and impose the appropriate penalty for crimes in line with the spirit of the Sharia.[12] Tazir crimes can be dealt with by the ruler or the courts by remission, pardon or abrogation, which does not apply to had penalties. Finally, the principles of evidence applied to tazir vary from those applied to hadd penalties. Crimes liable to a tazir penalty can be proved with credible evidence from a wide range of sources, whereas crimes liable to a had penalty are mainly proved by evidence from witnesses or the confession of the accused.[13] In modern times, tazir penalties can be interpreted as those laws passed by the legislative authority. Sentencing according to the tazir system does not mean that a judge is given an arbitrary power. The judge’s authority is confined to applying the legal texts endorsed by the state to the case under consideration. Only the most appropriate penalty will be imposed. The freedom given to the judge is in choosing the penalty considered most suitable from the legal provisions stated for the crime, that is, from the lightest to the heaviest penalty.[14] Imprisonment was introduced as a means of punishment during the early years of Islam. It is said that during the caliphate of 'Umar ibnal-Khattab (634-644 AC), a house was purchased in Madina to detain prisoners, a practice that was followed by subsequent governors. Imprisonment came to be used mainly for discipline and correction, both of which objectives, it was thought, would be promoted by self-reflection.[15]

Punishments

The primary objective of Islamic law is to preserve the public interests or masalih. There are five essential interests: faith, life, intellect, lineage and property.[16] These are regarded as crucial for the survival and spiritual wellbeing of individuals, to the extent that their destruction would precipitate chaos and disorder in society. Therefore, the Islamic legal system validates all measures necessary for the protection and advancement of these values. Murder, blasphemy, theft, adultery, and the consumption of intoxicants are punishable offences, for they pose a threat to life, religion, the immunity of private property, the well-being of the family, and the integrity of human intellect respectively. Al-Ghazali gives a concise account of the importance of maintaining these essential interests: Whatever comprises the maintenance of the al-usul al-khamsa (five basic interests of safeguarding faith, life, intellect, lineage and property) is regarded as advantageous, and whatever infringes these five interests can be excluded from any religion or dispensation intended for the benefit of humankind. Therefore, all religions and dispensations agree on the ban of blasphemy, murder, adultery, theft and the consumption of intoxicants.[17]

Punishment is a means of establishing justice. Justice should be the basis of all human relations[18] as it is divinely commanded in the Quran. We have already sent Our messengers with clear evidences and sent down with them the Scripture and the balance that the people may maintain (their affairs) in justice. And We sent down iron, wherein is great military might and benefits for the people, and so that Allah may make evident those who support Him and His messengers unseen. Indeed, Allah is Powerful and Exalted in Might. (Q57:25)

In this light, criminals should receive their just retribution. Therefore, it is not just to treat lightly a criminal who is a serious threat to the security of society. Since crime is deemed to be a challenge to the prevailing values of society and a violation of the victim's rights, punishment must also bring justice to the victims of crime. This does not mean that judges are in favour of revenge. Rather, the search for justice entails a measured response which serves as an index of social values and progress. Satisfaction for the victim and his/her family is an essential part of that search, which, in turn, plays an important role in social control. Penalties in Islam also aim at reforming the criminals by punishing their actions. The reasoning being that fair retribution will let the criminals feel the severity and pain of their evil behavior which their victims suffer. This will cure the criminals of their inner illness of criminal tendencies. In short, awareness of the punishment will discourage the criminals from repeating the offence.